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+"{\"id\": \"10339791\", \"name\": \"OSBORNE CONSTRUCTION COMPANY and Alaska Insurance/AIAC, Co., Appellants, v. Kenneth JORDAN, Appellee\", \"name_abbreviation\": \"Osborne Construction Co. v. Jordan\", \"decision_date\": \"1995-09-15\", \"docket_number\": \"No. S-6105\", \"first_page\": \"386\", \"last_page\": \"394\", \"citations\": \"904 P.2d 386\", \"volume\": \"904\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T20:43:00.763441+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before MOORE, C.J., RABINOWITZ, MATTHEWS, COMPTON and EASTAUGH, JJ.\", \"parties\": \"OSBORNE CONSTRUCTION COMPANY and Alaska Insurance/AIAC, Co., Appellants, v. Kenneth JORDAN, Appellee.\", \"head_matter\": \"OSBORNE CONSTRUCTION COMPANY and Alaska Insurance/AIAC, Co., Appellants, v. Kenneth JORDAN, Appellee.\\nNo. S-6105.\\nSupreme Court of Alaska.\\nSept. 15, 1995.\\nRehearing Denied Oct. 27, 1995.\\nTasha M. Porcello, Pletcher, Weinig, Mos-er & Merriner, Anchorage, for Appellants.\\nValerie M. Therrien, P.C., Fairbanks, for Appellee.\\nBefore MOORE, C.J., RABINOWITZ, MATTHEWS, COMPTON and EASTAUGH, JJ.\", \"word_count\": \"5038\", \"char_count\": \"31873\", \"text\": \"OPINION\\nMOORE, Chief Justice.\\nI. INTRODUCTION\\nKenneth Jordan filed a workers' compensation claim against his former employer, Osborne Construction Company (Osborne). The Alaska Workers' Compensation Board (the Board) denied Jordan's claim, finding that Osborne had presented substantial affirmative evidence to rebut the statutory presumption of compensability and that the preponderance of evidence indicated that Jordan's injury was not work-related. The superior court reversed the Board's decision and Osborne appealed. We affirm the superior court's decision.\\nII. FACTS AND PROCEEDINGS\\nA. The Injury\\nJordan was employed as a baekhoe operator for Osborne during the summer of 1989 at a project at Fort Wainwright. Jordan alleges that he injured his lower back on, or around, August 15,1989, by lifting a compactor out of a ditch jvhile at work for Osborne. He did not report the injury to anyone and continued to work. Jordan at one time claimed that he attempted to report the injury but was instructed not to report injuries by his immediate supervisor, Wayne Jordan (appellee's father), and by the project supervisor, James Worley. Following their denial, Jordan retracted his statement, claiming he should have said Osborne did not want too many injuries reported.\\nWorley learned of Jordan's injuries when he went to the job site to find a back hoe and operator for a small digging job:\\n[W]hen I got there, I motioned him off the machine and when he got off the machine he was walking bent over side ways and I asked him what had happened to him\\u2014 what happened to you and he said \\u2014 he told me that [he] had hurt his back. And I asked him how he did it and then he said that he was \\u2014 was moving \\u2014 helping a laborer move a compactor out of a footing.\\nHe got off the machine, he was stooped over and he was limping and was real stiff. And having had back surgery, he didn't have to tell me what his problem might\\u2014 for (indiscernible).\\nI can look at a man \\u2014 a way a man's walking and I can \\u2014 if you've ever had it, you know it.\\nJordan also told his father, Wayne, what had occurred at the job site. His father told the Board, \\\"I thought he just pulled a muscle in his back.\\\" This belief was corroborated when his son continued to work and \\\"after about two weeks, he stopped limping.\\\" Jordan continued working at the Fort Wainwright job and did not seek medical attention. He was laid off in October 1989. Up to the end of the job, he felt he could continue to work as an operator:\\nI thought I could still continue working. Once my leg quit hurting, I felt better and I thought that I would get better. My assumption was that I was going to get better and I had improved \\u2014 in fact I had improved without having the leg pain.\\nB. The Medical Diagnosis and Treatment\\nJordan first consulted a physician concerning lower back pain in March 1990. That physician, Dr. Young Ha, an orthopedic surgeon in Fairbanks, made the following chart notes:\\nThis young fellow who developed rather sudden onset of pain in his left side of the buttock which goes down the back of the thigh all the way down to the calf. The pain is rather persistent and quite disturbing in terms of his ability to do things.... This pain started about eight days ago after playing basketball and moving furniture about an hour although he does not recall any specific incident in which he had any pain although he did feel some discomfort in his lower back.\\nLate October [sic] 1989 he had back pain after pulling a plate compactor up from a slope at his work for Osborne Construction Company. However, he did not have any leg pain and he did not lose any time from his work.\\n(Emphasis added.) Dr. Ha concluded that Jordan was suffering from a herniated disc, most likely at L4-L5. He recommended conservative treatment and instructed Jordan to return if he did not improve. Jordan did not return for a follow-up visit.\\nHe next sought relief from two chiropractic clinics. In April 1990, while on vacation in Oklahoma, Jordan consulted Dr. G.F. Palmer. Jordan's wife filled out the New Patient Preliminary Information Questionnaire and described his problem as pain through lower back to calf. The date of the accident was stated as \\\"beginning of March,\\\" and the cause was listed as \\\"carrying furniture.\\\" References on the form to \\\"on the job\\\" injury and \\\"workers' compensation\\\" insurance were left blank. Jordan signed the form. After returning to Fairbanks, Jordan sought treatment from Dr. Frank Spaulding, DC, and began a series of treatments. The intake forms from Dr. Spaulding's office also indicated that Jordan's condition arose after \\\"moving furniture,\\\" and he again answered questions concerning on the job injury and workers' compensation in the negative. The efforts at seeking relief through chiropractic manipulation were unsuccessful.\\nJordan next sought an evaluation in May 1990 from Dr. Edwin Lindig, an orthopedic surgeon at the Fairbanks Clinic. Once again, Jordan stated on the patient intake form that his condition arose after \\\"moving in February.\\\" Later in May, Jordan consulted Dr. George Vrablik, another orthopedic surgeon at the Fairbanks Clinic. Jordan told Dr. Vrablik that he had first hurt his back \\\"at work,\\\" then later \\\"while moving.\\\" Dr. Vrablik ordered a CT scan, which revealed, for the first time, that Jordan had herniated discs at three levels of his lumbar spine, L3-L4, L4-L5, and L5-S1. Dr. Vrablik recommended that Jordan fill out \\\"workman's comp paperwork.\\\" This led to the filing of the formal Report of Injury on June 5, 1990.\\nIn June Jordan received a second opinion from Dr. George Brown, another orthopedic surgeon in Fairbanks. Dr. Brown confirmed Dr. Vrablik's diagnosis. With Dr. Vrablik out of town on vacation, Dr. Brown performed a three-level decompression laminec-tomy. Jordan recovered quickly from the surgery. In less than two months, he accepted a temporary job with the Fairbanks North Star Borough School District as a substitute custodian.\\nSubsequent to the surgery, the parties entered into a stipulation that Jordan's permanent impairment rating, based on the American Medical Association Guidelines to Permanent Impairment, should be 21.5% of the whole man. Prior to the stipulation, Osborne asked Dr. Robert Fu, an Anchorage orthopedic surgeon, to rate Jordan's impairment. Osborne also asked Dr. Fu to state an opinion as to the work-relatedness of Jordan's disability. In a letter to Osborne's counsel, Dr. Fu stated that, based on the history given him by Jordan and the records which Osborne provided, the start of his back trouble was on August 15, 1989, while working for Osborne, and the injury was aggravated by his subsequent moving of furniture.\\nC. The Workers' Compensation Claim\\nOsborne initially accepted Jordan's claim for workers' compensation benefits and paid temporary total disability (TTD) and medical costs from June 7,1990 to October 9,1990, at which time Jordan was released for light duty work as medically stable under AS 23.30.265(21). In January 1991, Jordan filed an Application for Adjustment of Claim requesting a hearing before the Board. Osborne filed an answer controverting the benefits requested by Jordan on the grounds that his back condition was not work-related.\\nA hearing before the Board was held on December 17, 1991, but was not concluded. When the Board reconvened on February 4, 1992, one of the three members of the panel considering Jordan's claim was not present. The remaining two members proceeded to hear the case under AS 23.30.005\\u00ae, which permits two of the three panel members to constitute a quorum.\\nIn a February 1992 Decision and Order, the two members of the panel hearing the claim announced that they could not agree on whether Jordan's claim was compensable. They decided to submit the recorded testimony from the February 4,1992, hearing to the third member to review and cast the deciding vote.\\nIn a second Decision and Order issued March 31, 1992, the absent member of the panel, having reviewed the record, decided the claim was not compensable. The majority concluded that Jordan was not a credible witness and that, as a result, the medical reports supporting his claim also were not credible since they were based on what Jordan had reported to the physicians.\\nThe third board member wrote a separate dissenting opinion. He wrote:\\nI do not find it particularly surprising that someone suffering sharp back discomfort would initially ascribe the pain to the most recent vigorous activity. Once it is apparent that the injury is more profound than originally assumed, the search for the underlying cause of the condition would of necessity become more intense. Regrettably, the employee's lack of reliability in this ease makes the determination of the ca[u]se of his injury more difficult for everyone concerned: the physicians, the employer and the insurer, and the board. In a nutshell, I am persuaded by Dr. Brown's opinion that the employee's claim simply fits the facts better than alternate explanations. I would find the employee's attempt to move a heavy industrial dirt compactor the most likely cause of his herniated disc. As a consequence, I would find his claim compensable.\\nJordan appealed the Board's decision to the superior court. The superior court reversed the Board and remanded with instructions to find Jordan's claim compensable. Osborne appeals this decision.\\nIII. DISCUSSION\\nUnder Alaska's workers' compensation statute, an employee's claim is presumed to be compensable. AS 23.30.120(a)(1). The application of this statutory presumption involves a three-step analysis. Louisiana Pacific Corp. v. Koons, 816 P.2d 1379, 1381 (Alaska 1991) (per curiam). First, the employee must establish a \\\"preliminary link\\\" between the disability and his or her employment. Id. Once this preliminary link has been established, \\\"it is the employer's burden to overcome the presumption by coming forward with substantial evidence that the injury was not work related.\\\" Id. (quoting Burgess Constr. Co. v. Smallwood, 623 P.2d 312, 316 (Alaska 1981)). While the employee still bears the burden of proof, the burden of going forward with evidence shifts to the employer. Municipality of Anchorage v. Carter, 818 P.2d 661, 665 (Alaska 1991). If the employer successfully rebuts the presumption of compensability, the presumption drops out and the employee must prove all of the elements of the case by a preponderance of the evidence. Koons, 816 P.2d at 1381.\\nThe Board found that Jordan successfully established a preliminary evidentiary link raising the presumption of compensability. This finding was based, on the testimony of Jordan's supervisors that he suffered a back injury on the job. Osborne does not dispute this finding. The real controversy in this appeal centers on whether Osborne adequately rebutted the presumption of com-pensability.\\nAn employer can rebut the presumption \\\"either by presenting affirmative evidence that the injury is not work-connected or by eliminating all possibilities that the injury was work-connected.\\\" Veco, Inc. v. Wolfer, 693 P.2d 865, 872 (Alaska 1985). Whether or not an employer has produced substantial evidence to rebut the presumption of compensability is a question of law to which this court applies its independent judgment. Id. at 871 n. 8. \\\"Substantial evidence is 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' \\\" Roth v. Valley Constr., 671 P.2d 871, 875 (Alaska 1983) (quoting Miller v. ITT Arctic Serv., 577 P.2d 1044,1049 (Alaska 1978)).\\nIn this case, Osborne sought to rebut the presumption of compensability by presenting evidence that Jordan originally attributed the onset of his 1980 disability to moving furniture and playing basketball. A majority of the board agreed, finding that \\\"[t]he available medical records of the employee's visits to the chiropractors and to Dr. Ha on March 19, 1990, all implicitly indicate that this back condition arose by the employee either playing basketball or moving furniture.\\\"\\nThe superior court reversed the board, observing that \\\"the evidence presented by Osborne, namely that Jordan initially cited to the furniture moving and basketball playing as the potential culprits of his back and leg pain, does not exclude the possibility that the injury he experienced after lifting the compactor was somehow the culprit.\\\" We agree. Under Alaska law, a disability arising after a non-work-related injury is still compensable if an earlier work-related injury substantially contributed to the employee's disability. See Walt's Sheet Metal v. Debler, 826 P.2d 333, 335 (Alaska 1992). Thus the fact that an employee has suffered a non-work-related injury does not, standing alone, rebut the presumption of compensability. Alaska Pacific Assur. Co. v. Turner, 611 P.2d 12,14 (Alaska 1980) (holding that where an employee suffers a work-related injury and then suffers an aggravation unrelated to his employment, the employer must show that the work-related injury was not a \\\"substantial factor contributing to the later injury\\\" in order to rebut the presumption of compensability).\\nIn Turner, an employee began to suffer from pain in his right leg while working as a heavy machine operator. Although his leg pain grew progressively worse, the employee did not consult a doctor. Approximately two months after he stopped working for his employer, in part because of his recurrent leg pain, the employee experienced a sharp pain in his back when he lifted the tongue of a boat trailer. Id. at 13. The employee then consulted a doctor who ultimately concluded that the employee had suffered a herniated disc as a result of his work as a heavy machine operator. Id. at 13-14. In reversing the board's finding that the employer had rebutted the presumption of compensability, we observed:\\nApparently the Board concluded that [the employee] either suffered no injury while working for [the employer] or that, if he did, such injury was not a substantial factor contributing to the later injury. In essence, the Board chose to disbelieve [the employee's] account of the onset of his symptoms and rejected Dr. Newman's evaluation of his injuries. The Board emphasized [the employee's] failure to seek medical attention until after the trailer lifting incident, and his failure to mention any back or leg pain while visiting a medical clinic for a skin problem in January, 1976. Relying on Dr. Newman's notes, which were later related by him in his testimony, the Board further emphasized what it perceived as conflicts in the medical history [the employee] purportedly gave to Dr. Newman. Based on this evidence, the Board concluded that [the employee's] disability resulted entirely from the trailer lifting incident.\\nSeemingly ignored by the Board was the testimony of [employee's] camp supervisor, Robert Terry, which strongly supported [the employee's] own testimony, and the opinion of his doctor, that his symptoms appeared and worsened while he was working for [the employer]. We note also that the record contains no medical opinion contrary to the one expressed by Dr. Newman .\\nId. at 14-15 (footnotes omitted). In the absence of conclusive medical evidence, the Turner court concluded that the employer had failed to present substantial evidence rebutting the presumption of compensability. Id. at 15.\\nAlthough expert medical evidence is not always necessaiy to rebut the statutory presumption, something more than proof of a non-work-related injury is required. See, e.g., Wolfer, 693 P.2d at 871-72. In Wolfer, an employee became disabled after he collapsed at work while tightening an overhead bolt in 1980. The employer sought to rebut the presumption of compensability by presenting circumstantial evidence suggesting that the employee's 1980 disability had actually been caused by an earlier 1979 injury. We summarized the employer's evidence as follows:\\n(1)[The employee] suffered a disabling back injury in December 1979. [The employee] testified, both in his deposition and at his hearing, that since 1979, his back bothered him recurrently whenever he engaged in manual labor.\\n(2) [The employee] testified that on two prior occasions (in March and April of 1980) he passed out while bending over. [The employee] related these incidents to his December 1979 injury.\\n(3) It is undisputed that when [the employee's] back gave out in October 1980, he was not engaged in strenuous activity and did not slip or fall.\\n(4) [The employee] wrote in his October 1980 Report of Occupational Injury or Illness that he had \\\"pulled something in his back\\\" which \\\"happens of [sic] and on every so often under hard labor since 1979.\\\"\\n(5) [The employee] testified that when he returned to Veco on October 23, 1980, he worked primarily as a supervisor. [The employee] continued working after October 26,1980, until he was laid off on November 27,1980 because of a reduction in the work force.\\n(6) [The employee's treating physician after November 1980] testified that [the employee] never mentioned the October 1980 incident when he described the medical history of his injury in December 1980. [The doctor] found [the employee's] complaints to be consistent with his description of the December 1979 injury. [A second doctor] also referred only to the December 1979 injury in his report.\\nId. at 871-72. On appeal, we held that a reasonable mind might rely on this evidence to conclude that the employee's 1980 injury did not cause his subsequent disability. Id. at 870-72 (rejecting the employee's claim that the employer was required to produce expert medical evidence to rebut the presumption of compensability). \\\"This evidence, if relied upon, tends to show that the October 1980 incident, did not change the type of work [the employee] could do, or aggravate his original injury.\\\" Id. at 872. We thus concluded that the circumstantial evidence presented by the employer, coupled with the employee's own statements concerning his back condition, created a reasonable inference that the 1980 injury was merely a \\\"flare-up\\\" of the employee's earlier injury. Id.\\nUnder Wolfer and Turner, Osborne has failed to present sufficient affirmative evi- denee to rule out the work-relatedness of Jordan's injury. The sole evidence presented by Osborne to show that Jordan's disability was not related to his 1989 work injury was that (1) Jordan experienced sudden leg and lower back pain after playing basketball and moving furniture in February 1990, and (2) Jordan failed to mention his 1989 work injury on his medical intake forms when he subsequently sought medical attention for his back pain. This alone does not constitute substantial evidence that Jordan's back problem was not work-related; it is entirely reasonable for a layperson to associate the onset of sudden pain with his most recent physical activity. Furthermore, it is undisputed that Jordan told Dr. Ha about his 1989 injury when he first consulted him in March 1990. Cf. Wolfer, 698 P.2d at 871 (where the employee did not mention his second injury at all when he consulted a doctor about his back condition); Turner, 611 P.2d at 15 & n. 6 (where it was unclear from the doctor's medical records when the employee first told the doctor about the work-related injury). In fact, none of the doctors who examined Jordan and who were told of his injury at work were willing to rule it out as the initial source of his back trouble. On this record, a reasonable mind could not conclude, based solely on Jordan's initial failure to cite his work injury on his medical intake forms, that his 1989 injury did not contribute to his 1990 disability. Neither the medical evidence nor the circumstances surrounding Jordan's two injuries support such a finding.\\nOn appeal, Osborne places great emphasis on Jordan's lack of credibility. The first argument raised in Osborne's brief is that \\\"[l]ying under oath is contrary to public policy.\\\" Osborne appears to argue that a claimant who has been proven not credible should not be entitled to the presumption of com-pensability. Osborne is essentially arguing for an oversimplification of the three-step analysis that applies in workers' compensation claims. As discussed above, the presumption only attaches once the claimant has established a \\\"preliminary link\\\" between the injury and the employment. If a claimant's testimony proved totally unreliable, this link would not be established. However, where there is corroborating evidence, as in this case, the link is clearly established.\\nOsborne also cites Resler v. Universal Services, 778 P.2d 1146 (Alaska 1989), for the proposition that a claimant's lack of credibility, coupled with other evidence, is sufficient to overcome the presumption. As Osborne correctly observes, \\\"[t]he issue before this court is narrowed to how much additional evidence, in combination with the lack of credibility, is required to support the board's conclusion.\\\" An examination of the facts of Resler is instructive. Resler claimed that she injured her shoulder while working as a housekeeper. Id. at 1147. However, several doctors who performed diagnostic tests failed to find an objective basis for Resler's pain. Id. at 1148 & n. 1. The Board found that the medical reports and the testimony of the doctors, along with the depositions of Res-ler's co-workers, constituted substantial evidence to rebut the presumption that Resler's injury was work-related. Id. at 1150. This court affirmed the superior court's affir-mance of the Board's decision. Id.\\nJordan's ease is distinguishable from Res-ler. There is no dispute that Jordan suffered an objectively measured injury. Furthermore, Jordan's supervisors, rather than disputing his claim of work-relatedness, provided corroborating evidence that he was injured while working for Osborne. Thus, Osborne has failed to produce \\\"some evidence,\\\" in addition to the employee's lack of credibility, to rebut the presumption of compensability under the Resler test.\\nIV. CONCLUSION\\nSince Osborne has failed to produce substantial evidence to rule out work-relatedness, Osborne has failed to rebut the pre sumption of compensability. Therefore, we AFFIRM the decision of the superior court, which reversed the Board.\\nEASTAUGH, J., with whom COMPTON, J., joins, dissents.\\n. Osborne's insurer, Alaska Insurance/AIAC Co., is co-appellant in this case.\\n. The correct month was August.\\n. The Board rejected this stipulation in a Decision and Order dated December 10, 1991, holding that the parties could not by agreement impede the Board's prerogative to order, if it so elected, its own independent medical evaluation under AS 23.30.095(k).\\n. We recently approved such a procedure in Schmidt v. Beeson Plumbing & Heating, 869 P.2d 1170, 1177-79 (Alaska 1994).\\n. Osborne emphasizes that the doctors' opinions regarding causation are only as reliable as the information received from Jordan. However, both Jordan's project supervisor and Jordan's father observed Jordan in pain after he moved the compactor at the Fort Wainwright project. Because the fact of Jordan's 1989 injury was corroborated by this testimony, Osborne must produce substantial evidence ruling out that episode as the source of Jordan's herniated discs. See Turner, 611 P.2d at 14-15.\\n. Having concluded that Osborne failed to rebut the presumption, we need not consider the next step in the workers' compensation analysis \\u2014 the weighing of the evidence to determine if the claimant has proved all elements by a preponderance of the evidence.\"}"
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+"{\"id\": \"10340302\", \"name\": \"STATE of Alaska, Appellant, v. Frank STEFFENSEN, Appellee\", \"name_abbreviation\": \"State v. Steffensen\", \"decision_date\": \"1995-09-15\", \"docket_number\": \"No. A-5041\", \"first_page\": \"340\", \"last_page\": \"343\", \"citations\": \"902 P.2d 340\", \"volume\": \"902\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Court of Appeals\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T18:43:34.517492+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before BRYNER, C.J., and COATS and MANNHEIMER, JJ.\", \"parties\": \"STATE of Alaska, Appellant, v. Frank STEFFENSEN, Appellee.\", \"head_matter\": \"STATE of Alaska, Appellant, v. Frank STEFFENSEN, Appellee.\\nNo. A-5041.\\nCourt of Appeals of Alaska.\\nSept. 15, 1995.\\nReview Denied Nov. 20, 1995.\\nCynthia L. Herren, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for appellant.\\nMarcia E. Holland, Assistant Public Defender, Fairbanks, and John B. Salemi, Public Defender, Anchorage, for appellee.\\nBefore BRYNER, C.J., and COATS and MANNHEIMER, JJ.\", \"word_count\": \"1831\", \"char_count\": \"11724\", \"text\": \"OPINION\\nMANNHEIMER, Judge.\\nThe State of Alaska appeals the superior court's decision to grant post-conviction relief to Frank Steffensen. As explained in more detail below, we remand this ease to the superior court for further proceedings.\\nIn 1988, Steffensen was charged with third-degree misconduct involving a controlled substance (possession of cocaine), AS 11.71.030(a). The cocaine was discovered on Steffensen's person after he was arrested on an outstanding bench warrant. Steffensen ultimately pleaded no contest to the cocaine charge. In his subsequent petition for post-conviction relief, Steffensen claimed that he had received ineffective assistance of counsel because his attorney did not seek suppression of the cocaine by attacking the legality of Steffensen's arrest. Superior Court Judge Mary E. Greene agreed with Steffensen that a competent attorney would at least have researched such a motion. Judge Greene further concluded that there was at least a reasonable possibility that the suppression motion would have been granted if it had been filed. Based on these findings, Judge Greene ordered that Steffensen be allowed to withdraw his plea.\\nWe agree with Judge Greene that the theory of suppression argued by Steffensen in his petition for post-conviction relief was reasonably apparent from existing search- and-seizure case law. However, a defense attorney's failure to pursue a potentially dis-positive motion is not always a sign of incompetence. Depending on the circumstances of the ease, an attorney may have sound reasons not to pursue such a motion.\\nFor example, during his testimony at the hearing in this case, Steffensen's attorney suggested that he might have knowingly refrained from filing the suppression motion because he intended to negotiate a \\\"package deal\\\" that would resolve several criminal charges pending against Steffensen, and because he felt that the State would probably insist on the same negotiated sentence regardless of whether he was successful in knocking out any one charge. The defense attorney's testimony only suggests, and does not establish, this possible explanation of his inactivity. Nevertheless, if Steffensen's attorney had a valid tactical reason for failing to pursue the suppression motion, then his failure to pursue the motion would not constitute ineffective assistance of counsel. Tucker v. State, 892 P.2d 832, 834 (Alaska App.1995); Steffensen v. State, 837 P.2d 1123, 1126-27 (Alaska App.1992).\\nEven assuming that the defense attorney had no valid reason for failing to pursue the suppression motion, the question remains whether Steffensen was prejudiced by his attorney's inaction. On appeal, the State argues that Steffensen's arrest was legal under the facts of this case and that the proposed suppression motion would have been denied. Steffensen, for his part, argues that his arrest was illegal and that the superior court would have suppressed the evidence against him if the proposed motion had been filed. Both parties' arguments are premature; the superior court has never ruled on Steffensen's proposed suppression motion. In her decision, Judge Greene did not reach the merits of Steffensen's suppression motion; she merely found that there was at least a reasonable possibility that the motion would have been granted if it had been filed and heard.\\nIt is evident that the number of color-able suppression motions (those that have some possibility of success) is greater than the number of winning ones. Many colorable motions are ultimately denied because, under the law and the facts of the case, they turn out to be meritless. If criminal convictions were overturned based merely on a showing that the defense attorney inexcusably failed to file a colorable (but ultimately meritless) motion, many convictions would be overturned for no good reason. That is, a defendant is not prejudiced by a defense attorney's failure to file a suppression motion if, after the motion is fully heard, the court finds that the motion should be denied.\\nJudge Greene's findings \\u2014 (1) that Steffensen's attorney failed to investigate a suppression motion, (2) that this motion had at least a colorable chance of success, and (3) that this motion would have been dispositive if granted \\u2014 are not a sufficient basis to allow Steffensen to withdraw his plea. Under Risher v. State, 523 P.2d 421, 425 (Alaska 1974), even after a defendant demonstrates that his or her attorney failed to act competently, the defendant must additionally demonstrate that there is at least a reasonable possibility that the attorney's lack of competency contributed to the defendant's conviction.\\nApplying this standard to the facts of Stef-fensen's case, we conclude that Risher requires proof that the proposed suppression motion would have been granted and, additionally, that there is at least a reasonable possibility that the outcome of the trial court proceedings would have been different had the evidence been suppressed. In Tucker, 892 P.2d at 834, this court reviewed a similar post-conviction relief claim and declared that the defendant had failed to establish grounds for relief because he had \\\"failed to establish that the warrantless seizure of his clothing was unlawful\\\" and because the defendant had \\\"similarly failed to create a reasonable doubt as to whether suppression of the clothing would have altered the jury's decision\\\". In an analogous case, the United States Supreme Court stated:\\nWhere defense counsel's failure to litigate a Fourth Amendment claim competently is the principal allegation of ineffectiveness, the defendant must . prove that his Fourth Amendment claim is meritorious and that there is a reasonable probability that the verdict would have been different absent the excludable evidence[.]\\nKimmelman v. Morrison, 477 U.S. 365, 375, 106 S.Ct. 2574, 2582, 91 L.Ed.2d 305 (1986).\\nIn the quoted passage, the Supreme Court refers to a \\\"reasonable probability\\\" that the verdict would have been different. This phrasing comes from Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984). In Alaska, under the Risher test, the question is whether there is a \\\"reasonable possibility\\\" that suppression of the challenged evidence would have led to a different result, because Risher holds that it is the defendant's burden to create a reasonable doubt concerning whether he or she was prejudiced by the trial attorney's incompetence.\\nState courts are split concerning whether to require proof that a defense attorney's incompetence had a \\\"reasonable probability\\\" of affecting the verdict (the Strickland test) or a \\\"reasonable possibility\\\" of affecting the verdict (the Risher test). However, regardless of which standard of proof courts apply, the courts unanimously agree that when a defendant asserts ineffective assistance of counsel based on his or her attorney's failure to challenge the government's evidence, the defendant must show that the proposed challenge would have been successful and then the defendant must show that the objectionable evidence might have affected the verdict. See State v. Berryman, 178 Ariz. 617, 622 & n. 3, 875 P.2d 850, 855 & n. 3 (App.1994), review denied (Ariz.1994) (To show ineffective assistance of counsel, the defendant must show that the proposed suppression motion would have succeeded and that, with the challenged evidence suppressed, there is a reasonable possibility that the result at trial would have been different.); State v. Kasten, 170 Ariz. 224, 228-29, 823 P.2d 91, 95-96 (App.1991), review denied (Ariz.1991) (the defendant must show that the suppression motion would have been granted); Huck v. State, 124 Idaho 155, 158-59, 857 P.2d 634, 637-38 (App.1993); State v. Richardson, 114 N.M. 725, 727-28, 845 P.2d 819, 821-22 (App. 1992), cert. denied, 114 N.M. 550, 844 P.2d 130 (1992); State v. Thompson, 69 Wash.App. 436, 848 P.2d 1317, 1321 (1993). See also People v. Mattson, 50 Cal.3d 826, 268 Cal.Rptr. 802, 836, 789 P.2d 983, 1017 (1990), cert. denied, 498 U.S. 1017, 111 S.Ct. 591, 112 L.Ed.2d 595 (1990) (\\\"A claim of ineffective assistance of counsel based on a trial attorney's failure to make a motion or objection must demonstrate not only the absence of a tactical reason for the omission . but also that the motion or objection would have been meritoriousf.]\\\").\\nThus, two issues remain to be resolved in Steffenseris post-conviction relief litigation: (1) whether Steffenseris attorney had a valid tactical reason to refrain from pursuing the proposed suppression motion; and (2) whether the proposed suppression motion is, in fact, meritorious. (Under the facts of this case, suppression of the cocaine obviously would affect the outcome of the criminal proceeding against Steffensen.)\\nThese two unresolved issues turn on questions of fact that have not been fully litigated. We therefore remand this ease to the superi- or court.\\nThis case is REMANDED to the superior court for further proceedings in light of this opinion. We do not retain jurisdiction of this ease.\\nBefore COMPTON, C.J., and RABINOWITZ, MATTHEWS, MOORE and EASTAUGH, JJ.\\nORDER\\nOn consideration of the petition for review filed on September 11, 1995, and the response filed on October 10, 1995,\\nIT IS ORDERED:\\nThe petition for review is DENIED.\\nEntered by direction of the Supreme Court at Anchorage, Alaska on November 20, 1995.\\n. The requirement that the merits of the proposed suppression motion be demonstrated conclusively (rather than to some lesser degree of certainty) appears grounded on the recognition that, once the facts are determined, a suppression motion presents a question of law that is susceptible of a conclusive answer. On the other hand, any ensuing assessment of how the fact-finder would have viewed the case if the challenged evidence had not been presented necessarily involves a weighing of probabilities.\\n. See State v. Richardson, 114 N.M. 725, 729, 845 P.2d 819, 823 (1992), cert. denied, 114 N.M. 550, 844 P.2d 130 (1992), holding that when a defendant's trial attorney appears to have acted incompetently but the record does not resolve whether the attorney had a justifiable tactical reason for the action/inaction, an appellate court's proper course is to remand the case to the trial court for a hearing on this issue. Compare the approach taken in In re Neely, 6 Cal.4th 901, 26 Cal.Rptr.2d 203, 205, 864 P.2d 474, 476 (1993), where the California Supreme Court, after determining that there were colorable grounds for the defendant's proposed suppression motion, appointed a superior court judge to be a \\\"referee\\\" (that is, a special master) and directed the referee to hold a hearing into (1) the factual merit of the defendant's proposed suppression motion and (2) the reasons why the defendant's trial attorney refrained from filing the motion. After making these findings, the referee sent the case back to the supreme court.\"}"
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+"{\"id\": \"10342994\", \"name\": \"Martin D. VICTOR, III; Patricia Victor, Plaintiffs, v. STATE FARM FIRE AND CASUALTY COMPANY, Defendant\", \"name_abbreviation\": \"Victor v. State Farm Fire & Casualty Co.\", \"decision_date\": \"1996-01-05\", \"docket_number\": \"No. S-6524\", \"first_page\": \"1043\", \"last_page\": \"1049\", \"citations\": \"908 P.2d 1043\", \"volume\": \"908\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T20:15:21.222917+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before MOORE, C.J., and RABINOWITZ, MATTHEWS, COMPTON and EASTAUGH, JJ.\", \"parties\": \"Martin D. VICTOR, III; Patricia Victor, Plaintiffs, v. STATE FARM FIRE AND CASUALTY COMPANY, Defendant.\", \"head_matter\": \"Martin D. VICTOR, III; Patricia Victor, Plaintiffs, v. STATE FARM FIRE AND CASUALTY COMPANY, Defendant.\\nNo. S-6524.\\nSupreme Court of Alaska.\\nJan. 5, 1996.\\nRaymond A. Nesbett, Raymond A. Nes-bett, P.C., Anchorage, for Plaintiffs.\\nDavid S. Cartel\\u2019, Hughes, Thorsness, Gantz, Powell & Brundin, Anchorage, Pamela A. Okano, Reed McClure, Seattle, Washington, for Defendant.\\nBefore MOORE, C.J., and RABINOWITZ, MATTHEWS, COMPTON and EASTAUGH, JJ.\", \"word_count\": \"3653\", \"char_count\": \"22727\", \"text\": \"OPINION\\nMATTHEWS, Justice.\\nI. FACTS AND PROCEEDINGS\\nThis case comes to us on certification from the United States District Court for the District of Alaska. We agreed to answer the following question:\\nUnder Alaska's Mandatory Motor Vehicle Insurance Act, may the insurer reduce its policy limit for uninsured and underin-sured motorist coverage by the amount of any payment the insured receives from or on behalf of a joint tortfeasor when the policy limit is lower than the amount of the insured's compensable damages attributable to the fault of the uninsured or under-insured motorist?\\nThe District Court's statement of facts and discussion of applicable law which accompanied the certification request is set forth in the appendix. Briefly, the facts are as follows: Martin Victor was injured in an automobile accident. He stopped his vehicle suddenly in order to avoid a wheel thrown from a trailer towed by a vehicle driven by Ronald Smith. In the process of making this emergency stop, Victor's vehicle was struck from behind by a vehicle driven by Norman Lichter. Victor settled a claim for his personal injuries against Lichter for $50,000. Smith was uninsured. Victor sued Smith and received a default judgment in excess of $300,-000. Victor has uninsured motor vehicle coverage of $100,000 per person written by State Farm Fire & Casualty Company. He sued State Farm to collect this coverage in superior court; the case was removed to the United States District Court, which ordered the parties to arbitrate Victor's claim in conformity with policy language. The arbitrators determined that Victor incurred damages totalling $293,626.80 and that Smith was 75% at fault and Lichter 25% at fault. State Farm then tendered $41,469.55, claiming that this was full payment based on Victor's $100,-000 policy limit, less an offset for the $50,000 Victor had received from his settlement with Lichter, and $8,530.45 which State Farm had paid Victor under his medical payments coverage. Victor claims that the $50,000 paid by Lichter should be deducted from his total damages, $293,626.80, not from the $100,000 policy limit.\\nII. DISCUSSION\\nWe conclude that the State Farm policy involved in this case requires that the amount paid by Lichter be deducted from Victor's damages, not from his policy limits. As the Alaska Mandatory Motor Vehicle Insurance Act does not preclude coverage broader than that required under the Act, it is unnecessary to independently construe the meaning of AS 28.22.211(b)(2). '\\nWe set out here the relevant provisions of the uninsured and underinsured endorsement to the policy:\\nSECTION III \\u2014 UNINSURED AND UN-DERINSURED MOTOR VEHICLE-COVERAGE U\\n(Damages for Bodily Injury and Property Damage Caused by Uninsured Motor Vehicles and Underinsured MQtor Vehicles)\\nYou have this coverage if \\\"U\\\" appears in the \\\"Coverages\\\" space on the declarations page.\\nWe will pay damages for bodily injury and property damage an insured is legally entitled to collect from the owner or driver of an uninsured motor vehicle or an un-derinsured motor vehicle.\\nLimits of Liability\\n1. Bodily Injury\\nThe amount of coverage is shown on the declarations page under \\\"Limits of Liability \\u2014 U\\u2014Bodily Injury, Each Person, Each Accident\\\". Under \\\"Each Person\\\" is the amount of coverage for all damages due to bodily injury to one person. Under \\\"Bodily Injury \\u2014 Each Accident\\\" is the total amount of coverage, subject to the amount shown under \\\"Each Person\\\", for all damages due to bodily injury to two or more persons in the same accident.\\n3. Any amount payable under this coverage for bodily injury shall be reduced by any amount paid or payable to or for the insured under:\\na. the liability coverage;\\nb. the medical payments coverage;\\nc. any worker's compensation law.\\n7. If the damages are caused by an uninsured motor vehicle, any amount payable under this coverage shall be reduced by any amount paid or payable to or for the insured by or for any person or organization who is or may be held legally liable for bodily injury to the insured or property damage.\\n8. If the damages are caused by an un-derinsured motor vehicle the most we pay will be the lesser of:\\na. the difference between the limits of liability of this coverage, and the amount paid to the insured by or for any person or organization who is or may be held legally liable for the bodily injury or property damage; or\\nb. the amount of the damages sustained but not recovered.\\nState Farm argues that the language under the Limits of Liability heading in clause 7, \\\"any amount payable under this coverage,\\\" refers to the limit of liability referred to in clause 1 under the same heading. Victor argues, on the other hand, that the questioned phrase refers to the language of the general insuring clause under Coverage U: \\\"We will pay damages . an insured is legally entitled to collect from the owner or driver of an uninsured motor vehicle.... \\\" In our view Victor has the better argument for a number of reasons.\\nFirst, structurally, clauses 7 and 1 under the Limits of Liability heading are parallel. Both modify the Coverage U insuring clause, but neither modifies, or is subordinate to, the other. This suggests that the reduction clause in clause 7 applies to \\\"damages . an insured is legally entitled to collect\\\" described in the general insuring clause rather than to the policy limits described in clause 1.\\nSimilar reasoning was employed by the Court of Appeals of Maryland in McKoy v. Aetna Casualty & Surety Co., 281 Md. 26, 374 A.2d 1170, 1172-73 (1977):\\nWhen the structure of the endorsement and the arrangement of the various clauses are considered, we believe that clause 111(d) should be construed as providing for a setoff against the total damages suffered and not against the face value of the endorsement. .\\nSection I, \\\"Uninsured Motorist Coverage,\\\" sets out the basic liability of Aetna, to pay all damages which the insured is legally entitled to recover resulting from an accident with an uninsured motorist. Section III, entitled \\\"Limits on Liability,\\\" begins \\\"the company's liability is limited as follows.\\\" This strongly suggests that the limitations which follow are to be understood as limits on the primary liability articulated in Section I.\\nSection 111(a) then limits liability to $20,-000 per person. Sections 111(b) and (c) concern limits on property damage and claims made under other insurance. Finally, Section 111(d) contains the setoff clause. There is no indication that 111(d) is in any way subordinated to 111(a). Both clauses stand on equal footing, and both must therefore be understood as independently modifying the primary liability of Section I. That is, amounts paid to an insured on behalf of the tortfeasor shall be deducted from \\\"all sums which the insured . (is) legally entitled to recover as damages from the owner or operator of an uninsured highway vehicle.\\\" Under the terms of this contract the setoff clause, 111(d), applies to the total damages incurred and is not a further limitation upon the $20,000 limit set forth in clause 111(a).\\nMoreover, the meaning of the reduction clause under clause 7 of the Limits of Liability column of the insurance policy can be inferred by contrasting the language used in clause 7 with that used in clause 8. Clause 8, relating to underinsured motor vehicle coverage, specifically requires deduction of amounts paid to the insured not from \\\"any amount payable\\\" but from \\\"the limits of liability of this coverage.\\\" If State Farm had intended that amounts received under clause 7, pertaining to uninsured motorist coverage, would likewise be deducted from the limits of liability, identical language could have been used.\\nFinally, the underlying purpose of reduction clauses such as that contained in clause 7 is to prevent double recoveries.\\nRelying on perceived statutory intent to make available to the insured the full extent of statutory UM coverage for the satisfaction of uncompensated damages, the majority of the courts have [sic] refused to enforce the tortfeasor reduction clause where its operation would render any part of the insured's statutory coverage limits unavailable for this purpose. These courts have, therefore, limited the junction of the tortfeasor reduction clause to the prevention of duplicate damages recoveries.\\n2 Irvin E. Schermer, Automobile Liability Insurance \\u00a7 26.02 (1994) (citing numerous cases) (emphasis added). This purpose is furthered by our interpretation of clause 7 and would not be furthered by an interpretation requiring a reduction from policy limits where total damages exceed policy limits.\\nIII. CONCLUSION\\nFor the above reasons we interpret the State Farm policy to require deduction of the $50,000 Lichter settlement from the total damages award rather than from policy limits.\\nAPPENDIX\\nThe United States District Court's Statement of Facts and Applicable Law which accompanied the Certification is as follows:\\nSTATEMENT OF FACTS\\nOn September 24, 1986, Martin Victor was injured in an automobile accident in Anchorage, Alaska. Victor abruptly stopped to avoid a wheel thrown by a trailer towed by Ronald Smith and was rear-ended by a vehicle driven by Norman Lichter. Victor received a default judgment against the uninsured Smith for over $300,000. Victor settled his claims against Lichter for $50,000.\\nAt the time of the accident, Victor was insured by State Farm Fire and Casualty Company (\\\"State Farm\\\"). His policy limits for uninsured and underinsured motor vehicle coverage (\\\"UIM\\\") were $100,000 per person/$300,000 per accident. The terms of Victor's UIM coverage were outlined in Section III of Endorsement 6895T of his ear insurance policy. Under Section III, State Farm agreed to provide the following coverage as follows:\\nWe will pay damages for bodily injury and property damage an insured is legally entitled to collect from the owner or driver of an uninsured motor vehicle or an underinsured motor vehicle. The bodily injury or property damage must be caused by accident arising out of the operation, maintenance or use of an uninsured motor vehicle or an underin-sured motor vehicle.\\nUnder the subheading \\\"Limits of Liability,\\\" Section III of the policy included the following reduction clauses:\\n3. Any amount payable under this coverage for bodily injury shall be reduced by any amount paid or payable to or for the insured under:\\na. the liability coverage;\\nb. the medical payments coverage;\\nc. any workers' compensation law.\\n7. If the damages are caused by an uninsured motor vehicle, any amount payable under this coverage shall be reduced by any amount paid or payable to or for the insured by or for any person or organization who is or may be held legally liable for bodily injury to the insured or property damage.\\nSee Docket No. 63, Exhibit E, pp. 18-20.\\nIn October 1991, Victor sued State Farm in the Superior Court of Alaska to recover damages under his UIM coverage, and the case was subsequently removed to the United States District Court. Under the Federal Arbitration Act, 9 U.S.C. \\u00a7 1, et seq., the Court ordered the parties to arbitrate their dispute in conformity with language in the insurance contract requiring arbitration, and stayed further proceedings pending the arbitration. See Docket Nos. 26 and 56. Following the arbitration proceedings on February 21 and 22, 1994, the arbitrators determined that Victor incurred damages totalling $293,626.80, with Smith 75% at fault and Lichter 25% at fault. See Arbitration Award, Docket No. 63, Exh. A. State Farm then issued a check to Victor for $41,469.55, which represented Victor's $100,000 policy limit, less an offset for the $50,000 Victor had received from his settlement with Lichter and $8,530.45 State Farm had already provided Victor under his medical payments coverage.\\nState Farm now moves to dismiss any remaining proceedings in this Court, arguing that it has satisfied its payment obligations under its insurance policy. Docket No. 61. State Farm argues that the phrase \\\"amounts payable\\\" in Section III of the policy refers to the policy's UIM coverage limit. Consequently, under the reduction clause at paragraph 7, it was appropriate to reduce the \\\"amounts payable\\\" by the amount of any payments Victor received from Lichter, a potentially liable person. Victor opposes the dismissal and moves for summary judgment, arguing that State Farms' [sic] obligations are unfulfilled under the policy because the amount Victor received from Lichter should not have been offset against the $100,000 policy limit. Docket No. 62. Victor contends that the phrase \\\"amounts payable\\\" in Section III of the policy should be interpreted to mean \\\"total damages caused by the uninsured motor vehicle.\\\" Thus, the payments Victor received from Lichter and from the medical payments coverage should offset Victor's total damages but not his UIM coverage limit.\\nAPPLICABLE LAW\\nAt the time of the accident, in 1986, Alaska's statute regarding motor vehicle liability insurance required that the insurer provide protection from damages caused by uninsured or underinsured motorists in the same amounts as the insured's liability coverage. AS 28.22.010(3). The insurer's liability for UIM coverage was limited as follows:\\nSec. 28.22.110. Maximum liability of carrier, (a) The maximum liability of the insurance carrier under the uninsured and underinsured motorists coverage required under this chapter shall be the difference between the coverage limit of liability and the amount paid to the insured by or on behalf of the uninsured and underinsured motorist.\\n(b) Amounts payable under the uninsured motorists and underinsured motorists coverage required to be offered under this chapter shall be reduced by\\n(1) amounts paid or to be paid under any workers' compensation law;\\n(2) amounts paid or payable under any valid and collectible automobile medical payments insurance or bodily injury or death liability insurance; and\\n(3) amounts paid by or on behalf of the uninsured or underinsured motorist.\\nAS 28.22.110 (1984). The current version of this provision is identical. AS 28.22.211 (1989). Under the statute, the Alaska Supreme Court has held that an insurer's UIM limit of liability will be reduced by any amount the insured received from his medical payments coverage. Burton v. State Farm Fire and Casualty Co., 796 P.2d 1361, 1364 (Alaska 1990). In light of the holding in Burton, one could argue that the phrase \\\"amounts payable\\\" in the statute and the insurance policy must refer to the UIM limit of liability for purposes of offsetting payments received from other legally responsible persons. While Burton certainly forecloses Victor's contention that the medical payments he received should be reduced from his total damages rather than his UIM coverage limit, the opinion does not attempt to interpret the phrase \\\"amounts payable,\\\" nor does it address the issue of payments received from another tortfeasor.\\nThe courts in other jurisdictions have addressed similar language in reduction clauses found in various insurance contracts, i.e., \\\"any amount otherwise payable for damages under this coverage,\\\" and \\\"any amount payable under the Uninsured Motorists Coverage.\\\" Some jurisdictions accept the insurer's argument and interpret the policies to provide offsets against the coverage limits. See, e.g., Aetna Casualty & Sur. Co. v. Kenner, 570 A.2d 1172 (Del.1990); Geisler v. Motorists Mut. Ins. Co. [382 Pa.Super. 622], 556 A.2d 391, 396 (Pa.Super.Ct.1989) (citing Bateman v. Motorists Mut. Ins. Co. [377 Pa.Super. 400], 547 A.2d 428 (Pa.Super.Ct.1988)); Nikiper v. Motor Club of America Cos. [232 N.J.Super. 393], 557 A.2d 332 (N.J.Super.Ct.App.Div.1989); Davenport v. Aid Ins. Co. (Mutual), 334 N.W.2d 711 (Iowa 1983). Others favor the insured's argument and interpret the policies to provide offsets only against total damages. See, e.g., Mullis [Mulliss] v. American Protection Ins. Co., 653 F.Supp. 685, 688 (D.Vt. 1987); Allied Mut. Ins. Co. v. Gordon [248 Kan. 715], 811 P.2d 1112, 1124 (Kan.1991); Gromolka [Gomolka] v. State Automobile Mut. Ins. Co. [15 Ohio St.3d 27], 472 N.E.2d 700, 702 (Ohio 1984); Dunkel v. Motorists Mut. Ins. Co. [41 Ohio App.3d 130], 534 N.E.2d 950, 953 (Ohio Ct.App.1987).\\nCourts favoring insurers find that the reduction clause language is unambiguous and that the phrase \\\"under this coverage\\\" refers to the maximum policy limit \\u2014 the greatest amount that the insurer would ever be called upon to pay. See Aetna, 570 A.2d at 1174. Courts adopting the insured's argument find that the language is ambiguous and that such ambiguities should be interpreted in favor of the insured. See id. at 1178 (Moore, J., dissenting). They reason that the phrase \\\"any amounts payable\\\" refers to the general coverage clause and should be interpreted to mean \\\"any damages compensable.\\\" See Mullis [Mulliss], 653 F.Supp. at 689 (citing McKoy v. Aetna Casualty & Sur. Co. [281 Md. 26], 374 A.2d 1170, 1172 (Md. 1977)); Gromolka [Gomolka], 472 N.E.2d at 702. If the reduction clause were meant to apply to the policy limits rather than total damages, it would state, \\\"limits of liability shall be reduced.\\\" See Aetna, 570 A.2d at 1179 (Moore, J., dissenting). Cf. Gromolka [Gomolka], 472 N.E.2d at 702 (policy used \\\"amounts payable\\\" language) with James v. Michigan Mut. Ins. Co. [18 Ohio St.3d 386], 481 N.E.2d 272 (Ohio 1985) (policy used \\\"limits of liability\\\" language).\\nCourts interpreting their respective motor vehicle insurance statutes and insurance contracts formed pursuant to state law look to public policy to justify their conclusions. Generally, the intent of the statutes mandating UIM coverage is to afford a person injured in an accident caused by an uninsured motorist the same benefits that the victim would have had if injured by an identifiable motorist covered. by an applicable standard automobile liability insurance policy. 7 Patrick D. Kelly, Blashfield Automobile Law and Practice \\u00a7 315.1 (rev. 3d ed. 1987 & Supp.1994). The majority in Aetna explained that \\\"uninsured/underinsured coverage is best viewed as a supplemental form of coverage that allows the insured to achieve a recovery from all tortfeasors that is equal to his own liability coverage.\\\". 570 A.2d at 1176. Thus, provisions in a policy that operate to reduce uninsured motorist coverage where other coverage or other benefits are available to the insured are valid if such provisions do not operate to deny payments to the insured of less than the statutory minimum. See Davenport, 334 N.W.2d at 714.\\nThe dissent in Aetna complained, however, that the majority seemed to impose a ceiling on the insured's recovery, while the law was designed to impose a floor. 570 A.2d at 1177 (Moore, J., dissenting). UIM coverage is a type of gap-filling coverage that should be liberally construed to provide the intended protection. See Allied Mut. Ins. Co., 811 P.2d at 1122. Once the insured purchases uninsured motorist coverage, he or she is entitled to the full extent of the benefit which law requires to be offered. \\\"Attempts by insurers to reduce this benefit by hypertechnical language or exclusion clauses are equally repugnant to the public policy of protecting persons injured in auto accidents.\\\" Aetna, 570 A.2d at 1180 (Moore, J., dissenting).\\nThe general purpose of a reduction clause is to prevent double recoveries. 46A C.J.S. Insurance, \\u00a7 1681. Thus, the Alaska Supreme Court's decision in Burton appropriately reduced the UIM coverage limit by the amount of medical payments the insured had already received from his insurer. In this case, the percentage of Victor's total damages attributable to the comparative fault of the uninsured Smith exceeds State Farm's UIM policy limit, and the payment received from Liehter is less than the amount of damages attributable to Liehter's comparative fault. Thus, there is no danger of double recovery if Victor receives the full amount of his UIM policy limit, offset only by the medical payments he has already received from State Farm.\\n. AS 28.22.121(a) provides in relevant part: \\\"A policy that grants the coverage required for a motor vehicle liability policy may also grant lawful coverage in excess of or in addition to the coverage specified for a policy and the excess or additional coverage is not subject to the provisions of this chapter.\\\" The only purpose for barring coverage beyond that mandatorily required would be to prevent a double recovery to reduce the temptation for fraudulent claims. See Werley v. United Servs. Auto. Ass'n, 498 P.2d 112, 116-17 (Alaska 1972). There is no risk of a double recovery here.\\n. Our focus is thus on the State Farm policy rather than on the Mandatory Motor Vehicle Insurance Act. That state courts have the power to reformulate certified questions is widely recognized. A leading text states:\\nIn one of its earliest uses of certification, the Fifth Circuit found out, seven years after it had first ordered questions certified, that it had asked the state court the wrong question. To guard against a recurrence of this it is now the common practice of many courts, when certifying, to emphasize that the particular phrasing used in the certified question is not to restrict the state court and that the state court is free to reformulate the questions as it see fit. State courts have availed themselves of this freedom whether or not it is expressly stated in the certificate.\\n17A Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice & Procedure \\u00a7 4248, at 177-178 (1988). Other commentators state:\\nRegardless of the clarity of the record, facts, and issues certified, the answering court must have the power to reformulate the questions posed. Although the court should not answer questions unrelated to the case at hand, the answering court should have the same freedom to analyze the factual circumstances that it would have if the entire case were before the court. Indeed, the ability of the answering court to reshape or add to the issues is necessary to further the goals of certification. The answering court may be best situated to frame the question for precedential value and to control the development of its laws.\\nCorr & Robbins, Interjurisdictional Certification and Choice of Law, 41 Vand.L.Rev. 411, 426 (1988).\"}"
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+"{\"id\": \"10355053\", \"name\": \"Robert R. ROSS, Appellant, v. STATE of Alaska, Appellee\", \"name_abbreviation\": \"Ross v. State\", \"decision_date\": \"1994-07-08\", \"docket_number\": \"No. A-4786\", \"first_page\": \"777\", \"last_page\": \"784\", \"citations\": \"877 P.2d 777\", \"volume\": \"877\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Court of Appeals\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T20:47:28.252040+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before BRYNER, C.J., COATS, J., and ANDREWS, Superior Court Judge.\", \"parties\": \"Robert R. ROSS, Appellant, v. STATE of Alaska, Appellee.\", \"head_matter\": \"Robert R. ROSS, Appellant, v. STATE of Alaska, Appellee.\\nNo. A-4786.\\nCourt of Appeals of Alaska.\\nJuly 8, 1994.\\nLinda K. Wilson, Asst. Public Defender, and John B. Salemi, Public Defender, Anchorage, for appellant.\\nShannon D. Hanley, Asst. Dist. Atty., Edward E. McNally, Dist. Atty., Anchorage, and Charles E. Cole, Atty. Gen., Juneau, for appellee.\\nBefore BRYNER, C.J., COATS, J., and ANDREWS, Superior Court Judge.\\nSitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution.\", \"word_count\": \"4236\", \"char_count\": \"27368\", \"text\": \"OPINION\\nBRYNER, Chief Judge.\\nRobert R. Ross was convicted by a jury of one count of kidnapping and five counts of first-degree sexual assault. He later entered a plea of no contest to a separate charge of second-degree sexual assault. Superior Court Judge Peter A. Michalski sentenced Ross to consecutive sentences totalling eighty-four years' imprisonment.\\nIn Ross v. State, 836 P.2d 378 (Aaska App.1992), this court upheld Ross' convictions but remanded his case for resentencing. On remand, Judge Michalski reimposed the original eighty-four-year composite term. Ross again appeals, contending that his sentence is excessive. We affirm.\\nFACTS AND PROCEDURAL BACKGROUND\\nWe addressed the facts surrounding Ross' convictions in our original opinion:\\nRoss' convictions stem from two incidents that occurred approximately a week apart. On January 30, 1987, Ross met V.B. in a downtown Anchorage bar; at Ross' invitation, V.B. and several friends accompanied Ross to his nearby house for some beer. There, after V.B.'s friends left, Ross physically and sexually assaulted V.B.\\nOn February 6, 1987, Ross approached S.A. in a downtown Aiehorage bar, grabbed her arm, and commanded her to do as she was told. He forced S.A. to walk to his house. There, Ross held S.A. hostage for approximately eight hours, repeatedly subjecting her to physical and sexual assaults. In the early morning hours of February 7, S.A. managed to escape Ross' house and ran to the house of an acquaintance!.]\\nRoss, 836 P.2d at 379.\\nAt the time of these offenses, Ross was thirty-four years old. We described Ross' background and his sentences for these offenses as follows:\\nRoss had one prior felony: a 1982 conviction for first-degree sexual assault that involved circumstances similar to the assaults Ross committed against V.B. and S.A. For the earlier crime, Ross received an eight-year* term; he was on parole for that offense when he committed the current offenses.\\nFor the incident involving S.A., Ross was convicted of kidnapping and five counts of first-degree sexual assault. Kidnapping, an unclassified felony, is punishable by a maximum term of 99 years and a minimum of five; the crime is not subject to presumptive sentencing. AS 11.41-300(c); AS 12.55.125(b). First-degree sexual assault, also an unclassified felony, is punishable by a maximum of thirty years; as a second felony offender, Ross was subject to presumptive terms of fifteen years for each of his first-degree sexual assault convictions. AS 11.41.410(b); AS 12.55.-125(f)(3).\\nFor the incident involving V.B., Ross was convicted of one count of second-degree sexual assault, a class B felony. He was subject to a four-year presumptive term for that offense. AS 11.41.420(b); AS 12.55.125(d).\\nIn imposing sentence, Judge Michalski concluded that Ross was an extremely dangerous offender who had little chance for rehabilitation. The judge thus stressed the need to isolate Ross for the protection of the community. Judge Miehalski sentenced Ross to fifty years for kidnapping. The judge imposed fifteen years for each count of first-degree sexual assault, making the two counts involving anal penetration concurrent to each other and the three counts involving vaginal penetration concurrent to each other, but ordering each group of concurrent sentences to be consecutive to the other group, as well as to the kidnapping. This yielded a total of eighty years' imprisonment for the offenses involving S.A.\\nFor the second-degree sexual assault conviction involving V.B., Judge Miehalski imposed an additional consecutive term of four years. Relying on Ross' dangerousness and the need to isolate him for the maximum possible time, Judge Miehalski ordered that Ross' eligibility for discretionary parole be restricted on the kidn\\u00e1pping charge. Ross thus received a composite term of eighty-four years without possibility of parole.\\nId. at 382-83.\\nIn deciding to remand Ross' case for re-sentencing, this court relied on Williams v. State, 800 P.2d 955 (Alaska App.1990) (Williams I), modified on reconsideration, 809 P.2d 931 (Alaska App.1991) (Williams II). In Williams I, we conducted an extensive review of past sentencing decisions involving offenders simultaneously convicted of rape \\u2014 or first-degree sexual assault \\u2014 and kidnapping. Our opinion in Ross summarized the review of the case law that we conducted in Williams I as follows:\\nOur review indicated \\\"a fair degree of uniformity\\\" in sentencing in such cases. Williams, 800 P.2d at 958. We noted that the cases fell into three benchmark categories. The initial category consisted of first felony offenders. For offenders in this category, we observed that sentences exceeding twenty years of unsuspended time had rarely been approved. Id. at 959. The second benchmark category included kidnap/rape cases involving offenders who had one or more prior felony convictions but whose criminal history was not sufficiently extensive to place them in the dangerous offender category. As to this category, we found that \\\"precedents firmly establish thirty years as the maximum composite sentence that should ordinarily be imposed_\\\" Id. In the third benchmark category, we found \\\"a handful of decisions\\\" approving composite sentences of more than thirty years of unsuspended time; we observed that \\\"[wjithout exception, those eases have involved kidnappings of prolonged duration or offenders whose prior criminal histories established them as persistent, violent criminals.\\\" Id. at 960.\\nRoss, 836 P.2d at 383.\\nOur opinion in Ross then emphasized the significance of the dual statutory sentencing goals of promoting uniformity and eliminating unjustified disparity:\\nWilliams [II] . reaffirmed the fundamental need for consideration of historical sentencing practices \\u2014 as reflected in benchmark sentences \\u2014 in the sentencing process; . this need springs from the legislature's concern with promoting sentencing uniformity and eliminating unjustified disparity \\u2014 a concern the legislature expressed with \\\"unmistakable clarity\\\" in AS 12.55.005(1), which requires the sentencing court to consider \\\"the seriousness of the defendant's present offense in relation to other offenses.\\\" [In Williams II] we concluded:\\nAt a minimum, . the principle of reasonable sentencing uniformity requires a sentencing judge who decides that an offender deserves a sentence which is significantly different from sentences previously given to similarly situated offenders to expressly find some legitimate basis for the difference \\u2014 some basis related to 'legally relevant sentencing criteria.' That basis should be spelled out on the sentencing record, so that the defendant and a reviewing court can understand the reasons for the disparity.\\nRoss, 836 P.2d at 383-84.\\nWe went on in Ross to compare Ross' eighty-four-year composite term to sentences received by similarly situated offenders convicted of similar crimes. We found that Ross' sentence was \\\"seemingly unprecedent ed\\\" and \\\"vastly exceeded]\\\" the sentencing benchmark applicable to his case.\\nBecause Judge Michalski had \\\"failed to discuss the seriousness of Ross' conduct in relation to other similarly situated offenders\\\" and \\\"made no findings to explain the apparent disparity between Ross' composite sentence and sentences previously given to similarly situated offenders,\\\" we remanded the case for additional findings in light of the two Williams decisions:\\nHere, the sentencing court's failure to make express findings concerning the seriousness of Ross' offenses in relation to other similar cases and the court's consequent failure to explain the apparent disparity of the sentence it elected to impose preclude meaningful appellate review. We must therefore remand this case for resen-tencing in light of Williams. On remand, the sentencing court should make express findings in conformity herewith.\\nRoss, 836 P.2d at 384-85.\\nOn remand, Judge Michalski compared Ross' case to cases this court discussed in Williams I. The judge found Ross' case distinguishable from those of other second offenders convicted in kidnap/rape cases because of the nature and character of Ross' past and current criminality \\u2014 that is, because Ross' prior felony conviction was also for first-degree sexual assault and because Ross' past and current offenses revealed a seemingly escalating pattern of violence. Reiterating the view that Ross was a remorseless and extremely dangerous offender, Judge Michalski determined that the original sentence was appropriate, even though the sentence exceeded the applicable Williams I benchmark. Judge Michalski thus resen-tenced Ross to the same eighty-four-year composite term that Ross had originally received but eliminated a parole restriction that would have made Ross ineligible for discretionary release for the first fifty years of his sentence.\\nDISCUSSION\\nOur function on appeal is to conduct an independent review of the entire sentencing record and decide whether Ross' sentence is clearly mistaken. McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974). In applying this standard, we use the Williams benchmarks for kidnap/rape cases as a mechanism to protect against the disparate treatment of similarly situated offenders when sound reason for disparity cannot be found. At the same time, however, we remain mindful that sentencing benchmarks can at most serve as an imprecise starting point for determining appropriate sentences in individual cases. See Williams II, 809 P.2d at 933. Sentencing benchmarks place no hard and fast restrictions on the scope of the sentencing court's authority in any given case. See State v. Wentz, 805 P.2d 962, 965 (Alaska 1991).\\nAs we indicated in Williams II, 809 P.2d at 936 n. 5, case law establishes that, for more serious cases involving second-felony offenders who have simultaneously been convicted of sexual assault and kidnapping\\u2014 Williams I \\u215b second benchmark category \\u2014 a composite sentence exceeding thirty years will seldom be warranted. As a rule, higher composite sentences will be appropriate only in genuinely exceptional cases. See, e.g., Yearty v. State, 805 P.2d 987 (Alaska App.1991) (forty years).\\nThe primary factor relied on by the superior court to distinguish Ross from other second-category offenders was that Ross' pri- or felony conviction involved an incident of first-degree sexual assault \\u2014 one that was in many respects quite similar to the sexual assaults for which Ross currently stands convicted. We acknowledged the importance of this factor in our original opinion remanding Ross' case, but we expressed skepticism as to whether this factor could in itself justify the significant disparity between Ross' eighty-four-year composite term and the thirty-year composite term indicated by the applicable Williams I benchmark:\\nIt seems to us that the aggravated nature of Ross' conduct and the disturbing similarity of his prior sexual assault make his case at least comparable to, and perhaps more serious than, Yearty v. State. We are thus inclined to think that a sentence exceeding Williams ' second category benchmark of thirty years would be justified here, as was the case in Yearty. On the other hand, given Ross' limited criminal history, we are skeptical that a sentence placing Ross in the third benchmark category could be justified!)]\\nRoss, 836 P.2d at 384.\\nHaving reviewed the entire sentencing record and having carefully considered the superior court's findings on remand, we find our initial skepticism unwarranted.\\nIn 1982, Ross was convicted of first-degree sexual assault and received an eight-year sentence for an incident involving conduct that was in many respects disturbingly similar to the conduct involved in his current cases. Not long after being paroled on his previous sexual assault conviction, Ross resumed his pattern of sexual predation. Within a one-week period, he engaged in two incidents of sexual assault against separate victims. In the second of these incidents, Ross kidnapped his victim and held her hostage in his own house for eight hours, subjecting her to repeated acts of sexual assault and to gratuitous and deliberately cruel acts of physical violence that resulted in significant injury. The incident was ended by the fortuitous escape of Ross' victim. Although Ross' conduct involved no imminent threat of death to his victim, the potential for death, serious injury, and prolonged captivity was certainly there.\\nAs Judge Michalski accurately observed, the nature and seriousness of Ross' prior felony conviction, the close factual and temporal relationship between Ross' prior and current offenses, and the escalating seriousness of Ross' behavior \\u2014 as reflected in the act of kidnapping by which he carried out his most recent sexual assault \\u2014 are all strongly indicative of Ross' poor prospects for rehabilitation. These same considerations establish the magnitude of danger Ross poses and the need to protect the public by isolating him from society. When Ross' past and current crimes are viewed as a whole, they reveal an alarmingly dangerous pattern of sexual violence. This pattern does not appear to stem from any momentary impulse; rather, it evidently arises from some more urgent and enduring compulsion whose origin is poorly understood and even more poorly controlled by conventionally available means short of incarceration.\\nThe similarity and proximity of Ross' past and current offenses plainly set Ross' case apart from cases within Williams I \\u215b second benchmark category. Indeed, Ross' case appears to be unique: we have found no reported cases involving offenders convicted of kidnapping and rape who had previously been convicted of rape. And because Ross is not situated similarly in this respect to offenders in Williams I \\u215b second benchmark category, the Williams I benchmark itself should not govern Ross' case, for the aim of sentencing benchmarks is not to compel uniformity among disparate offenders.\\nThe pertinent question, then, is whether the unique circumstances that set Ross' case apart from the cases included in Williams I's second benchmark category are sufficiently significant to warrant a composite term of eighty-four years. The eighty-four-year term imposed below places Ross squarely within the third benchmark category of Williams I, a category encompassing \\\"a handful of decisions in kidnap/rape cases\\\" that approve sentences sufficiently lengthy to keep offenders incarcerated for the remainder of their lives. Williams I, 800 P.2d at 960. Our approval of virtual lifetime sentences for offenders in this category has typically been based on our finding of an \\\"ingrained, compulsive criminal pattern.\\\" Schuenemann v. State, 781 P.2d 1005, 1009 (Alaska App.1989). \\\"Without exception, those cases have involved kidnappings of prolonged duration or offenders whose prior criminal histories established them as persistent, violent criminals.\\\" Williams I, 800 P.2d at 960.\\nRoss does not fit neatly into Williams I 's third category: his kidnapping was not of \\\"prolonged duration,\\\" and his criminal history is not extensive. Yet even when an offender's criminal history is not extensive, the nature of the past and current crimes can be as telling an indicator of an \\\"ingrained, compulsive criminal pattern\\\" as a lengthy history of prior convictions. This point, we think, is aptly demonstrated in Coleman v. State, 621 P.2d 869 (Alaska 1980).\\nColeman was originally convicted of two counts of rape and one count of robbery. The convictions stemmed from two incidents of sexual assault, the second occurring while Coleman was released on bail for the first. As a result of these convictions, Coleman, then a first offender, was sentenced to serve ten years in prison. Coleman v. State, 553 P.2d 40, 52 (Alaska 1976). Two months after being paroled on this sentence, Coleman raped and. physically assaulted another victim. For the new offenses, he was subject to a maximum term of sixty years. The sentencing court found Coleman to be a worst offender based on \\\"the proximity of the three criminal episodes in terms of time during which Coleman was free from prison,\\\" Coleman, 621 P.2d at 885, and sentenced him to serve forty years for his new offenses, imposing the term consecutively to approximately five years of remaining time that Coleman was required to serve by virtue of the revocation of his parole. Id. at 883-84.\\nOn appeal, the supreme court affirmed Coleman's sentence. In particular, the court upheld the trial court's finding that Coleman was a worst offender:\\nBehavior showing dangerous propensities which pose a clear risk to the public, the nature and circumstances of a crime, and other factors contained in the presentence report may justify a \\\"worst offender\\\" classification, as well as prior criminal convictions. The extreme danger which Coleman has shown he poses to the rest of society leads us to conclude that the superior court was not clearly mistaken in classifying him as a \\\"worst offender.\\\"\\nId. at 885 (citations omitted).\\nColeman teaches that even a relatively limited criminal history can justify a worst-offender finding (and, by implication, the conclusion that the offender may properly be sentenced to the statutory maximum term) when a defendant's past and current crimes consist of repeated acts of serious sexual assault that are separated by a substantial period of incarceration but, apart from incarceration, occur in close proximity. Ross fits the Coleman criteria. Both Ross and Coleman were subject to sentencing as second felony offenders. Ross, like Coleman, has now been convicted of a total of three episodes of sexual assault involving three victims. Like Coleman, Ross committed these offenses in close proximity to one another in terms of the time he was free from prison. And Ross, like Coleman, has thereby shown himself to be an \\\"extreme danger\\\" to society.\\nThe salient feature distinguishing Ross' case from Coleman's is the significantly greater seriousness of the conduct in Ross' case. Unlike Coleman, Ross' most recent offense consisted not of a single sexual assault but of repeated acts of rape committed during a criminal episode that lasted eight hours and involved deliberate cruelty. For this conduct, Ross was convicted of five counts of first-degree sexual assault and of the unclassified felony of kidnapping. Whereas Coleman was subject to a total maximum term of sixty years and received forty, Ross was subject to a total maximum of two hundred fifty-nine years and received eighty-four. In imposing this sentence, Judge Michalski properly found Ross to be an extremely dangerous offender whose prospects for rehabilitation are limited, at best.\\nGiven the persistence and proximity of Ross' criminality, the extreme and increasing seriousness of his crimes, and the lack of any clear prospects for his deterrence or rehabilitation, the remote possibility of some future change in Ross' behavior hardly seems to justify the substantial risk of exposing future victims to the same crimes that Ross has now committed on three occasions. The virtual lifetime sentence imposed below was justifiably calculated to assure that Ross will have no future opportunity to commit similar' crimes.\\nHaving independently reviewed the entire sentencing record, we cannot say that the sentence imposed below is clearly mistaken.\\nThe sentence is AFFIRMED.\\nCOATS, J., dissents.\\nMANNHEIMER, J., not participating.\\n. In our previous opinion, we stated Ross' age to be 35 at the time of his offenses. Ross v. State, 836 P.2d at 382. However, the presentence report indicates Ross' date of birth to be January 17, 1953, which would place Ross several weeks past his thirty-fourth birthday when he committed these offenses.\\n. Referring to Williams I, we specifically observed:\\nIn the present case, Ross' composite sentence of eighty-four years without eligibility for parole vastly exceeds the second felony offender benchmark and, indeed, substantially exceeds even the sentences imposed in some of the cases falling within Williams ' third benchmark category. Unlike other offenders in Williams' third benchmark category, Ross' criminal history \\u2014 consisting of a misdemeanor conviction for driving while intoxicated and a single prior felony, albeit for a similar crime\\u2014 is not so extensive as to qualify him as an habitual offender, see, e.g., Contreras v. State, 767 P.2d 1169, 1175 (Alaska App.1989), and does not appear to \\\"establish an ingrained, compulsive criminal pattern\\\" of violent misconduct. Schuenemann v. State, 781 P.2d 1005, 1009 (Alaska App.1989). And unlike other cases in the third benchmark category, Ross' kidnapping did not entail an extraordinarily lengthy abduction. See, e.g., Morrell v. State, 575 P.2d 1200, 1202-03 (Alaska 1978) (virtual enslavement of victim with repeated sexual assaults over eight days).\\nRoss, 836 P.2d at 384.\\nWe further noted:\\nNor does Ross' conduct appear to have exposed his victims to the type of imminent, life-threatening danger that justified an exceptionally severe first-offense sentence of thirty years in Wilson v. State, 670 P.2d 1149, 1154 (Alaska App.1983). See also Williams v. State, 800 P.2d at 958.\\nRoss, 836 P.2d at 384 n. 5.\\n. See infra note 5.\\n. Coleman was prosecuted as a second-felony offender under former AS 12.55.050(1), a habitual offender statute that subjected a second-felony offender \\\"to twice the longest term prescribed for the felony of which that person is convicted.\\\" Coleman v. State, 621 P.2d at 884 n. 25.\\n. It is significant that Ross was convicted of kidnapping for conduct going beyond the type of temporary abduction and eventual release that is common among many of the kidnap/rape cases that factored into the Williams I benchmark sentences. As we have already observed, Ross held his victim hostage for eight hours and, during this time, subjected her to serious physical and sexual violence. He did not release his victim; rather, she escaped. These circumstances involve the type of potential for death or prolonged captivity that justifies classifying kidnapping as among the most serious of felonies. See, e.g., Garrison v. State, 762 P.2d 465, 469-74 (Alaska App.1988) (Singleton, J., concurring). The fact that this potential danger remained unrealized here mitigates Ross' crime to a certain extent; but the scope of mitigation must be tempered by the recognition that the potential for more serious harm may have gone unrealized in this case only by virtue of S.A.'s escape \\u2014 an event beyond Ross' control. See id. at 472-74 (discussing Morrell v. State, 575 P.2d 1200 (Alaska 1978), and Nylundv. State, 716 P.2d 387 (Alaska App.1986)). Given these circumstances, a fifty-year kidnapping sentence for a second-felony offender would not have been obviously excessive, even in the absence of multiple sexual assaults.\\n. Ross' second-degree sexual assault conviction, for assaulting V.B., was a class B felony and was punishable by a maximum of ten years. Each of the five counts of first-degree sexual assault involving S.A. was punishable by a maximum of thirty years. Ross' kidnapping was punishable by a maximum of ninety-nine years.\"}"
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+"{\"id\": \"10355817\", \"name\": \"Thomas G. MULLIN, Appellant, v. STATE of Alaska, Appellee\", \"name_abbreviation\": \"Mullin v. State\", \"decision_date\": \"1994-12-30\", \"docket_number\": \"Nos. A-4809, A-4819\", \"first_page\": \"1323\", \"last_page\": \"1328\", \"citations\": \"886 P.2d 1323\", \"volume\": \"886\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Court of Appeals\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T17:50:20.448280+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before BRYNER, C.J., and COATS and MANNHEIMER, JJ.\", \"parties\": \"Thomas G. MULLIN, Appellant, v. STATE of Alaska, Appellee.\", \"head_matter\": \"Thomas G. MULLIN, Appellant, v. STATE of Alaska, Appellee.\\nNos. A-4809, A-4819.\\nCourt of Appeals of Alaska.\\nDec. 30, 1994.\\nMargaret W. Berck, Juneau, for appellant.\\nCynthia M. Hora, Asst. Atty. Gen., Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Atty. Gen., Juneau, for appellee.\\nBefore BRYNER, C.J., and COATS and MANNHEIMER, JJ.\", \"word_count\": \"2943\", \"char_count\": \"18042\", \"text\": \"OPINION\\nMANNHEIMER, Judge.\\nFollowing a jury trial in the Juneau superi- or court, Thomas G. Mullin was found guilty of seven counts of first-degree sexual abuse of a minor, AS 11.41.434(a)(1), and one count of second-degree sexual abuse of a minor, AS 11.41.436(a). Because Mullin was a third-felony offender, he faced a presumptive term of 25 years' imprisonment for the seven counts of first-degree sexual abuse (as well as a 6-year presumptive term for the one count of second-degree sexual abuse). AS 11.41.434(b) and AS 12.55.125(i)(4); AS 11.41.436(b) and AS 12.55.125(d)(2). Superi- or Court Judge Walter L. Carpeneti found five aggravating factors and sentenced Mul-lin to a composite term of 60 years' imprisonment with 20 years suspended (40 years to serve). Judge Carpeneti additionally revoked Mullin's probation from a prior felony and imposed (consecutively) 1 year of imprisonment that had previously been suspended. Thus, Mullin's total sentence is 61 years with 20 years suspended (41 years to serve).\\nMullin concedes that his offenses are \\\"atrocious and worthy of the utmost community condemnation\\\". However, he contends that 41 years to serve, when compared to the sentences imposed in similar cases, is an unjustifiably severe term of imprisonment. We affirm.\\nMullin's convictions for sexual abuse of a minor stem from a five-year sexual relationship that Mullin had with M.R.D., the daughter of Mullin's longtime girlfriend, L.D. Mullin and L.D. lived together, on and off, over several years. In May 1992, M.R.D. revealed Mullin's sexual abuse to Child Protective Services in the State of Washington. The Washington authorities contacted Mul-lin's probation officer in Juneau on May 29th. (As explained below, Mullin was on probation from two prior felonies.) On June 1st, Mul-lin's probation officer had the Juneau police check with Alaska Airlines; they found out that Mullin had booked passage out of state for June 4th. Acting on this information, the probation officer arrested Mullin when he appeared for his appointment on June 2nd.\\nMullin was ultimately convicted of engaging in genital, anal, and oral penetration with M.R.D. during the months of November 1991 to April 1992. However, M.R.D. testified that Mullin had had sexual relations with her on a weekly basis from the time she was five years old. (M.R.D. was approaching her tenth birthday in April 1992.)\\nDuring the investigation of these offenses, the authorities discovered that Mullin had also sexually abused two other children. One of these children was ten-year-old E.C., Mullin's son from a previous marriage. The other child was a teenager who used to babysit M.R.D.; this girl told the authorities that in 1987 (when she was eleven years old) Mullin had had sex with her at least 25 times.\\nMullin's first criminal conviction occurred in 1978; he was convicted of assault and battery for attacking a woman in the laundry room of the Hilton Hotel in Juneau. According to a later pre-sentence report, Mullin \\\"struck [the woman], threw her on the floor, grabbed her throat, and placed his knee on her body while putting his hand over her mouth to prevent her from screaming.... Mr. Mullin desisted after being kicked in the groin by [the victim].\\\" For this offense, Mullin was sentenced to 180 days in jail with 150 days suspended. Later in 1978, he was sentenced to serve another 30 days of this sentence when he violated his probation by drinking.\\nIn 1980, Mullin was convicted of disorderly conduct for striking a man; he received a 5-day jail sentence, all suspended, and was ordered to pay a $175 fine. Mullin was later arrested for failing to pay his fine. In 1984, Mullin was convicted of fourth-degree assault for striking a woman; he was sentenced to a fine plus restitution.\\nIn 1986, Mullin was convicted of his first Alaska felonies. He pleaded no contest to two counts of fourth-degree misconduct involving controlled substances (possession of cocaine). The investigator who interviewed Mullin to prepare the pre-sentence report in that 1986 case wrote:\\nMr. Mullin states that he does not recall the present offense at all. He states it was his day off and he was probably drinking heavily. [However,] Mr. Mullin also states that he does not use cocaine and that he has no problem with alcohol. He states his use of alcohol is n\\u00f3 more than anyone else.\\nThe pre-sentence investigator interviewed L.P., a woman who was married to Mullin from 1975 to 1977. L.P. reported that Mullin often beat her up during the marriage, that Mullin raped her following their divorce, and that, when she started to see another man 8 months after the divorce, Mullin came to her house and \\\"cut up all her property with a knife\\\". L.P. also told the pre-sentence investigator about another incident in which Mul-lin threatened to kill their infant son. According to L.P., when their child was one year old, Mullin pointed a gun at the sleeping boy and told L.P. that, if she did not love him, there was no use in their son's living.\\nThe pre-sentence investigator also interviewed C.C., a woman who was married to Mullin from 1980 to 1984. C.C. reported that Mullin beat her up four to six times during the marriage and that, one time when he was angry, he ripped C.C.'s couch to pieces with a knife.\\nIn 1984, Mullin was charged by the State of Washington with making harassing phone calls to C.C. after she left him. According to the complaint, Mullin made three threatening telephone calls to his estranged wife at her place of work. Mullin told her that \\\"she was a dead woman\\\" and that he would obtain custody of the children if she were dead. Mullin failed to appear for the trial of this charge; the Washington court issued an arrest warrant that was still outstanding in 1986, when Mullin committed his first Alaska felonies.\\nFor the 1986 drug offenses, Mullin was sentenced to 2 years' imprisonment with all but 45 days suspended. The court allowed Mullin to serve these 45 days periodically, on Mullin's days off from work, so that he could keep his job.\\nIn February 1987, Mullin submitted a urine specimen that tested positive for both marijuana and cocaine. His probation officer considered filing a petition to revoke Mullin's probation, but Mullin cheeked himself into the Juneau Recovery Unit for detoxification and drug treatment. Mullin stayed there from February 9 to March 11, 1987, successfully completing the program.\\nHowever, another of Mullin's conditions of probation required him to attend MEN, Inc. an anger/violence counseling program. Mul-lin refused to participate in the program; he missed all of his appointments. According-to his probation officer, Mullin \\\"maintain[ed] that he [did] not need the program and [that he] missed [the] appointments either because of work or [because of] scheduling problems created by the MEN program.\\\"\\nIn addition, over the first year of his probation, Mullin served only 4 days of his 45-day sentence: 2 days in December 1986, 1 day in March 1987, and 1 day in August 1987. Mullin was reluctant to provide his probation officer with his work schedule for most of these months. He ultimately admitted that \\\"there were times he could have served [more days of his sentence] but did not.\\\"\\nBased on Mullin's refusal to attend the counseling program and on his failure to serve his jail sentence on his available days off, Mullin's probation officer petitioned the superior court to revoke his probation. The superior court revoked Mullin's probation and sentenced him to serve an additional 90 days.\\nOn September 5, 1987, just days before Muhin's scheduled sentencing hearing for this probation revocation, Mullin committed another felony. Muhin was working for Temseo Helicopters; he was entrusted with $4,116.50 that Temseo had received from a cruise ship company. Muhin was responsible for depositing this money into Temsco's bank account, but the money never arrived at the bank. Three days later, Muhin gave $1800 in cash to his girlfriend, telling her that he had made this money in a drug deal.\\nCharged with second-degree theft, Muhin reached a plea agreement with the State. Muhin pleaded no contest to the theft charge on two conditions: that his time to serve would be limited to 2 years (i.e., any additional imprisonment would be suspended), and that no additional jail time would be imposed from his drug felonies.\\nMuhin was imprisoned for this theft conviction from May 1988 to September 1989. While incarcerated, Muhin participated in a counseling program for batterers. According to the termination summary prepared by the director of the program, Muhin \\\"exhibited] a style of manipulation and denial[.] [He] evidenced [a] need to control his treatment.] He denies his need of treatment and views other factors (job, car, etc.) as his priorities.\\\"\\nIn June 1990, Muhin furnished liquor to his 13-year-old son and a group of his son's friends. One girl passed out from drinking; she apparently spent the night in Muhin's bedroom behind a locked door. The next morning, when she was taken to the hospital, the girl's blood alcohol level was still .26 percent. The Juneau police informed Mul-lin's probation officer that they were investigating this incident. When the probation officer confronted Muhin, Muhin \\\"adamantly denied\\\" giving alcohol to the children. \\\"He claimed [that] the kids got into the booze that had been left there by his friends.\\\" Despite his denial, Muhin was convicted of furnishing liquor to minors in July 1991 and was sentenced to 90 days in jail with 85 days suspended.\\nThus, when Mullin appeared for sentencing for the sexual abuse offenses in this case, he had a 15-year criminal record that included two prior felonies, several misdemeanors, several probation revocations, and 15 traffic violations. In addition, Muhin had committed numerous acts of violence or threatened violence against his wives and children for which he had not been prosecuted.\\nAs a third-felony offender, Muhin faced a 25-year presumptive term of imprisonment for first-degree sexual abuse of a minor. AS 11.41.434(b) and AS 12.55.125(i)(4). Superior Court Judge Walter L. Carpeneti found that the State had proved five aggravating factors under AS 12.55.155(c). Of these, the judge found three to be important to Mullin's sentence: (c)(18)(B) \\u2014 that Mullin had sexually abused other minors; (c)(10) \\u2014 that Mullin's conduct was among the most serious included in the definition of first-degree sexual abuse of a minor; and (e)(20> \\u2014 that Mullin had been on felony probation when he committed the sexual abuse offenses.\\nAfter reviewing Mullin's record, Judge Carpeneti concluded that he should give no weight to the goal of Mullin's rehabilitation when fashioning his sentence:\\nI agree with [the prosecutor] that rehabilitation is not a factor to be considered in this case. Mr. Mullin has been before the Court a number of times, and there is no doubt in my mind that essentially rehabilitative sentences have been tried a number of times [but] obviously without success. I read the four pre-sentence reports this morning, and the theme that struck me in all of them is that the defendant was given a number of chances, both [by] this court' and [by] Judge Pegues ., and the rehabilitative approach obviously was unsuccessful. . [T]he argument that [the prosecutor] makes concerning Mr. Mullin going through the MEN program \\u2014 and apparently successfully completing it \\u2014 at a time when these offenses were going on is really a point that can't be ignored[.] It just doesn't appear to this Court that rehabilitation is at all a factor that ought to be considered in this case; it just doesn't seem to be there.\\nFor similar reasons, Judge Carpeneti discounted the goal of deterring Mullin:\\nI don't think that's something that should be given a great amount of weight here, because of the fact that the defendant has been through the court so many times, and he has successively greater sentences, and it seems not to have made any difference.\\nJudge Carpeneti concluded that deterrence of others and community condemnation of Mullin's conduct were important sentencing goals when fashioning Mullin's sentence. However, the judge found that isolation should be the paramount goal attained by Mullin's sentence:\\nThe next factor is isolation. I agree with [the prosecutor's] analysis that [this] is the most important factor in this case. Mr. Mullin [is] a person who's been through the court system a number of times, who's had a number of opportunities to move from a criminal life to one that is not. He has not taken advantage of any of those opportunities. He has committed all different types of offenses, as [the pre-sentence report] points out. He now has a criminal record spanning several types of offenses: sexual abuse, drugs, theft, assault. He has a record of domestic violence [and] a long traffic record. It seems to me that isolation is the most important factor in trying to come up with an appropriate sentence in this case.\\nJudge Carpeneti found that Mullin was a worst offender for purposes of imposing the maximum sentence. See Tommy v. State, 551 P.2d 179 (Alaska 1976). Judge Carpeneti further found that a sentence beyond the 30-year maximum for any one count of first-degree sexual abuse was necessary to protect the public from Mullin. See Mutschler v. State, 560 P.2d 377, 381 (Alaska 1977). As noted above, Judge Carpeneti sentenced Mullin to serve 41 years in prison (61 years with 20 suspended).\\nIn State v. Andrews, 707 P.2d 900 (Alaska App.1985), aff'd, 723 P.2d 85 (Alaska 1986), this court outlined three criteria that might justify sentencing a first-felony offender convicted of sexually abusing a minor to a term of imprisonment substantially greater than the presumptive 8-year term. These criteria are: (1) that the defendant abused multiple victims; (2) that the defendant committed multiple assaults on the same victim; and (3) that the defendant inflicted serious injury on one or more victims. Andrews, 707 P.2d at 913-14.\\nUsing these Andreivs criteria, Mul-lin's sexual abuse offense was aggravated. Mullin abused M.R.D. repeatedly over the course of five years, and he abused two other children as well, his son and a babysitter. These factors support a sentence greater than the 25-year presumptive term that Mul-lin faced as a third-felony offender. Moreover, Judge Carpeneti found that Mullin was a \\\"worst offender\\\" (essentially, a person for whom there was no realistic expectation of rehabilitation) and that a sentence greater than 30 years' imprisonment (the maximum sentence for any one of Mullin's counts of sexual abuse) was necessary to protect society from Mullin.\\nIn prior cases involving first-degree sexual assault and first-degree sexual abuse of a minor, Alaska sentencing decisions have grouped aggravated cases into two categories. For the more serious category of offenders, represented by such cases as Nix v. State, 653 P.2d 1093 (Alaska App.1982), Hancock v. State, 741 P.2d 1210 (Alaska App.1987), and Yearly v. State, 805 P.2d 987 (Alaska App.1991), this court has approved sentences of up to 40 years to serve. However, for a second category of serious offenders, represented by such cases as Hintz v. State, 627 P.2d 207 (Alaska 1981), Tookak v. State, 648 P.2d 1018 (Alaska App.1982), Patterson v. State, 689 P.2d 146 (Alaska App.1984), and Williams v. State, 809 P.2d 931 (Alaska App.1991), sentences have been limited to 30 years to serve. Mullin argues that the facts of his case are analogous to the 30-year cases, while the State argues that Mul-lin's ease is more similar to the 40-year cases.\\nOne aspect of Mullin's case distinguishes it from all the cases listed in the previous paragraph: Mullin was a third-felony offender and faced a presumptive term of 25 years' imprisonment. This presumptive term represents the legislature's judgement as to the appropriate sentence for a typical third-felony offender who commits a typical act of sexual abuse upon a minor. Juneby v. State, 641 P.2d 823, 833, 838 (Alaska App.1982). Judge Carpeneti found that Mullin was not a typical offender but was instead a worst offender. Judge Carpeneti further found that Mullin's offenses were not typical but were instead significantly aggravated. The record supports both of these findings.\\nMullin engaged in years-long sexual abuse of M.R.D.; he also sexually abused two other children. The record reveals that, besides these acts of sexual abuse, Mullin has engaged in significant acts of violence both toward strangers and toward members of his own households, that Mullin has already served a substantial prison sentence (for his felony theft conviction), that Mullin has persistently resisted both rehabilitative programs and probation supervision, and that Mullin's criminal behavior has escalated in seriousness over the past 15 years.\\nThese factors place Mullin's case among the most aggravated category of sexual abuse and sexual abuse offenders. These factors thus support Judge Carpeneti's conclusion that Mullin posed a substantial degree of danger to society and that, in order to protect society, he needed to sentence Mullin to a term of imprisonment exceeding the 30-year maximum for any single count of first-degree sexual abuse.\\nAccordingly, we conclude that the sentence imposed by the superior court is not clearly mistaken. McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974). The sentencing decision of the superior court is AFFIRMED.\\n. Mullin had earlier been convicted of felony theft in the State of Washington for stealing a television valued at $250.00. He received a deferred sentencing, and the charge was dismissed after a year.\"}"
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+"{\"id\": \"10357002\", \"name\": \"F.T., Appellant, v. STATE of Alaska, Appellee\", \"name_abbreviation\": \"F.T. v. State\", \"decision_date\": \"1993-11-05\", \"docket_number\": \"No. S-4626\", \"first_page\": \"857\", \"last_page\": \"864\", \"citations\": \"862 P.2d 857\", \"volume\": \"862\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T23:59:15.268428+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before MOORE, C.J., and RABINO WITZ, BURKE, MATTHEWS and COMPTON, JJ.\", \"parties\": \"F.T., Appellant, v. STATE of Alaska, Appellee.\", \"head_matter\": \"F.T., Appellant, v. STATE of Alaska, Appellee.\\nNo. S-4626.\\nSupreme Court of Alaska.\\nNov. 5, 1993.\\nKenneth C. Kirk, Kirk & Robinson, Anchorage, for appellant.\\nJ. Stefan Otterson, Asst. Atty. Gen., Anchorage, Charles E. Cole, Atty. Gen., Juneau, for appellee.\\nRoger E. Holl, Anchorage, Guardian Ad Litem.\\nBefore MOORE, C.J., and RABINO WITZ, BURKE, MATTHEWS and COMPTON, JJ.\", \"word_count\": \"3780\", \"char_count\": \"23242\", \"text\": \"OPINION\\nMATTHEWS, Justice.\\nThe superior court adjudicated G.T. a child in need of aid (CINA). F.T., G.T.'s father, timely appealed the adjudication. We reverse.\\nFACTUAL AND PROCEDURAL BACKGROUND\\nGordon, born August 12, 1983, is seriously emotionally disturbed and given to outbursts of rage and verbal and physical attacks.\\nThe Department of Health and Social Services, Division of Family and Youth Services (DFYS) first became involved with Gordon's family in 1985. No child protection issues were substantiated, so the case was closed and no court action was filed. The next DFYS involvement was in February 1989. This involvement was also resolved without court action. By this time, Frank was separated from his wife and Gordon was in the wife's custody. The basis for DFYS involvement was \\\"substantiated child abuse\\\" on Frank's part. The record contains no details about this abuse. The transcript of the adjudication proceedings describes only one event, in which Frank \\\"pushed Gordon into a chair or a bench, something that made him hit his head.\\\"\\nDFYS's next involvement was on the basis of a referral in December 1989, for neglect on the mother's part.\\nBetween 1985 and 1989 Frank's wife obtained five domestic violence restraining orders against him. All began as ex parte petitions. Three were never pursued. The other two were extended to 90 and 135 days respectively.\\nThe present case began in May 1990. While Gordon was in his mother's custody, he had been hospitalized in a unit for emotionally disturbed children at Charter North Hospital three times. During the third hospitalization the hospital staff concluded that it had exhausted its resources and that the situation at the mother's home was continuing to deteriorate. DFYS then filed a petition for emergency custody of Gordon.\\nFollowing DFYS's intervention, Gordon was released from the hospital into the care of family friends. Gordon did not do well in his foster home. Growing conflicts led his foster parents to conclude that they could no longer take care of him. Apparently DFYS, the foster parents, and the family's pastor then agreed that \\\"Frank should be given a chance to take Gordon home.\\\"\\nIn preparation for this transfer, Frank was instructed to undertake \\\"psychological evaluation, a parenting skills class, and Male Awareness Program, as well as to get a day time job, an apartment large enough for Gordon to have his own bed and space, and a telephone.\\\" DFYS acknowledges that Frank was \\\"very cooperative\\\" and made \\\"definite progress\\\" complying with these directives. Among other things, Frank submitted to a psychological evaluation, quit his job and found day-time employment, moved to a larger apartment with room for Gordon, and enrolled in parenting classes.\\nPending the transfer to Frank's care, Gordon was moved from his first foster home to a second foster home. Within days Gordon's condition deteriorated to the point that on February 11, 1991, he was hospitalized in Charter North for a fourth time. DFYS then abandoned its plans to place him in Frank's care.\\nAn adjudication hearing was held February 27, 1991. Frank contested the adjudication. DFYS argued against returning Gordon to his father's custody, urging that Gordon was improving in the hospital and needed a stable environment.\\nJudge Reese adjudicated Gordon to be a child in need of aid under AS 47.10.-010(a)(2)(A) and (C). Judge Reese based his decision in part on the domestic violence orders, of which he took judicial notice. Three months later a disposition hearing was held before Master Brown. The State's earlier, optimistic forecasts notwithstanding, Gordon was still hospitalized in Charter North. Frank asked that Gordon be placed in his custody. DFYS argued for continued hospitalization followed by institutionalization in a \\\"consistent, very structured type of environment.\\\" Master Brown adopted DFYS' recommendation. Frank objected to the master's report. Judge Michalski then entered a disposition order placing custody of Gordon in DFYS. This appeal followed.\\nDISCUSSION\\nFrank challenges the superior court's CINA adjudication on several grounds. As a threshold matter, we note Frank's claim that the superior court actually based its adjudication on a best-interest analysis instead of the statutorily prescribed bases for assuming jurisdiction. The transcript of the adjudication hearing lends some support to this argument. Both the State and the superior court focused on whether a CINA adjudication would be in Gordon's best interest. The State's witnesses testified to this effect, and the State, the guardian ad litem, and the mother's attorney all presented the case in this light in their closing arguments.\\nBasing a CINA adjudication entirely on a best-interest analysis is reversible error. Cf. Cooper v. State, 638 P.2d 174, 180 n. 9 (Alaska 1981). The statutory ground for a CINA adjudication must first be established. In this case, Judge Reese's oral decision on the record made express use of the statutory language in AS 47.10.-010(a)(2)(C). In his written Adjudication of Child in Need of Aid and Interim Order of Disposition, Judge Reese expressly based his CINA adjudication on AS 47.10.-010(a)(2)(A) and (C). On review we must therefore determine whether the evidence presented at the adjudication hearing could have supported a CINA adjudication under either of these grounds.\\nA. Did the trial court err in concluding that a preponderance of the evidence supported a CINA adjudication under AS 47.10.010(a)(2)(A)?\\nApplied to the specific facts of this case, AS 47.10.010(a)(2)(A) would support a CINA adjudication only if Gordon had no parent, guardian, custodian, or relative caring or willing to provide care. Specifically, the parties' dispute whether Frank was willing to provide care.\\nThe State advances two arguments in support of its contention that Frank was not willing to provide care. It argues that Frank did not \\\"manifest[ ] a willingness to assume immediate care of Gordon.\\\" It also argues that Frank could not have been willing to provide care because he was unable to meet Gordon's needs.\\nThe State's first argument is without merit. Frank unequivocally expressed his desire to care for Gordon. He also indicated his willingness to leave Gordon in foster care during a transition period in order to minimize disruption in Gordon's routine. The State concludes that Frank was not willing to assume immediate care of Gordon. The statute imposes no such requirement, and the State's inference is in any case unreasonable.\\nThe State's second argument has no more substance. As the State points out, we have held that, abandonment depends on objective conduct and not on subjective intent. D.E.D. v. State, 704 P.2d 774, 783 (Alaska 1985); E.J.S. v. Department of Health & Social Serv., 754 P.2d 749, 751 (Alaska 1988). The State combines this point with the statutory definition of \\\"caring\\\" to reach the conclusion that if a child has needs a parent cannot meet, then the parent cannot be \\\"willing to provide care\\\" for that child.\\nThe State is correct to emphasize the importance of objective conduct. But by any reasonable measure Frank's conduct objectively bespeaks willingness to care for Gordon. In addition, the State's conflation of willingness to care and ability to satisfy needs leads to absurd conclusions. By the State's logic, the parent of any child with an incurable disease is not willing to care for that child, since by definition the parent will not be able to meet the child's medical need for a cure.\\nIn sum, there is no basis in the record for a CINA adjudication under AS 47.10.-010(a)(2)(A). To the extent that the court's adjudication rests on this subsection, it is clearly erroneous.\\nB. Did the trial court err in concluding that a preponderance of the evidence supported a CINA adjudication under AS 47.10.010(a)(2)(C)?\\nAdapted to the facts of this case, AS 47.10.010(a)(2)(C) would support a CINA adjudication only if the court found either that Gordon has \\\"suffered substantial physical harm . as a result o/the actions done by or the conditions created by\\\" Frank, or that Gordon will suffer \\\"substantial physical harm\\\" as a result of Frank's actions or inaction.\\nThe superior court made both of these findings. It found that Frank's \\\"conduct and his attitude and the way he deals with things is what has caused a great deal of\\\" Gordon's problems. It also found that \\\"[t]o put Gordon into [Frank's custody] would likely subject Gordon to a very high risk of violence as has been the situation in the family in the past. And imminent and substantial risk for Gordon of physical harm.\\\"\\nFrank argues that the record does not support these findings. We agree. There is no evidence in the record to support the claim that Frank's conduct caused Gordon's problems. Indeed, the evidence was to the contrary. Gordon's crises occurred only after Frank left the household. Each of the hospitalizations occurred while he was in his mother's custody or with foster parents. The record provides no support for the court's speculations about the etiology of Gordon's condition.\\nThe superior court's conclusion that Gordon faced \\\"imminent and substantial risk . of physical harm\\\" if released into Frank's custody calls for more extensive discussion. As Frank notes, the court might have relied on two kinds of evidence in concluding that. Gordon would be exposed to \\\"a very high risk of violence as has been the situation in the family in the past.\\\" The first is evidence that Frank physically abused his children; the second, evidence that he physically abused his wife.\\nHearsay evidence that Frank physically abused his children was introduced by Gordon's social worker, Margie Karamolegos, for the sole purpose of providing the basis for her expert opinion as to Gordon's needs. The court explicitly allowed it on that basis. Its use to establish whether Frank abused his children would therefore be improper.\\nThere was no other testimony that Frank had ever physically abused his son. In fact, although the petition for adjudication alleges physical abuse, the State declined to pursue this in any detail. It chose to present no direct evidence of any kind concerning Frank's alleged physical abuse.\\nThe domestic violence restraining orders are therefore the only possible bases for the superior court's finding that Frank's conduct would place Gordon in imminent and substantial risk of substantial physical harm. The petition for adjudication cited these orders. Frank was asked about them during the hearing and gave a rambling response. He denied that the allegations of violence were accurate and invited the State to pursue the matter in more detail.\\nThe State declined to do this. The restraining orders were not entered into evidence and the State presented no direct testimony to support allegations of violence. However, at the conclusion of the hearing the superior court announced that it had reviewed all court records involving Frank. Speaking of the domestic violence restraining orders, the court stated that \\\"we have records that I can take judicial notice of that show his history of violence.\\\"\\nOn appeal, Frank challenges the superior court's decision to take judicial notice, arguing that the factual allegations judicially noticed were unsuitable for such notice. The State responds that since it is attested to in court documents, Frank's \\\"history of violence\\\" is the kind of fact suitable for judicial notice.\\nArticle II of the Alaska Rules of Evidence governs taking judicial notice. A court may take judicial notice \\\"at any stage of the proceeding,\\\" Alaska R.Evid. 203(b), and may do so \\\"whether requested or not,\\\" Alaska R.Evid. 201(c). In addition, the Rules leave considerable discretion to the court to take judicial notice of judicially noticeable facts. However, they leave no discretion to the court about which kinds of fact may be judicially noticed. Alaska R.Evid. 201(b). See Alaska Evidence Rules Commentary, Rule 201(c) and (d): \\\"Under subdivision [201](c) the judge has a discretionary authority to take judicial notice, as long as subdivision [201]'(b), supra, is satisfied.... The question of whether or not to take judicial notice of fact that satisfies the conditions of subdivision [201] '(b) is thus left primarily to the court's discretion.\\\" (Emphasis added.)\\nThe question is therefore whether the proposition that Frank had a \\\"history of violence\\\" was a judicially noticeable fact. The rules set out the applicable standard: \\\"A judicially noticed fact must be one not subject to reasonable dispute.\\\" Alaska R.Evid. 201(b) (emphasis added). The Commentary to the Alaska Evidence Rules fleshes out this standard as follows:\\nThe court taking judicial notice of a fact as that term is used in Rule 201 is held to a . demanding standard \\u2014 the same standard required for it to direct a verdict; it must be right, meaning that rational minds would not dispute the fact that the court notices.\\nEvidence Rules Commentary, Rule 201(a); see also 1 Jack B. Weinstein & Margaret A. Berger, Weinstein's Evidence, It 200[01], at 200-2 (1990) (judicial notice of fact \\\"is restricted to discrete facts which are so well known or authoritatively established as to be essentially indisputable.\\\"). Applying that standard, as laid out in Barber v. National Bank of Alaska, 815 P.2d 857 (Alaska 1991), yields the following: This court will affirm taking judicial notice only if, viewing the evidence in the light most favorable to the party against whom judicial notice is to be taken, fair-minded jurors could not disagree about the truth of the proposition to be noticed.\\nThe State argues that this standard was met in this case because the court derived the judicially noticed proposition that Frank has a \\\"history of violence\\\" from court records. It argues that court records are particularly suited for judicial notice and points out that courts routinely notice such records.\\nWe agree that courts freely take notice of court records, especially their own. However, they typically do so in order to take judicial notice of such facts as that a prior suit was filed, who the parties were, and so forth. These are indeed facts not subject to reasonable dispute.\\nCourts are far more circumspect about taking judicial notice of the facts alleged in court records. Liberty Mut. Ins. Co. v. Rotches Pork Packers, Inc., 969 F.2d 1384, 1388-89 (2d Cir.1992) (judicial notice of another court's factual findings may be used only to establish the fact of litigation and related filings, not the truth of the matters asserted); Marshall v. Bramer, 828 F.2d 355, 358 (6th Cir.1987) (\\\"it is generally not appropriate to judicially notice findings of fact made in other cases\\\"); United States v. Sixty Acres, More or Less with Improvements, Located in Etowah County, Alabama, 736 F.Supp. 1579, 1581 (N.D.Ala.1990) (courts \\\"cannot judicially know for the purposes of [the present] case evidence received in another case\\\"). We conclude that the trial court erred in taking judicial notice of the restraining orders for the purpose of establishing that Frank had committed acts of violence in the past.\\nFor the above reasons there is insufficient evidence to support the trial court's adjudication under AS 47.10.010(a)(2)(C).\\nAccordingly, we REVERSE the superior court's adjudication of Gordon as a child in need of aid under AS 47.10.010(a)(2)(A) and (C), and VACATE its order committing Gordon to DFYS's custody.\\n. In order to preserve the anonymity of the parties, and for the reader's convenience, we will use \\\"Gordon\\\" and \\\"Frank\\\" as placeholders for G.T.'s and F.T.'s names.\\n. These orders are not part of the record on appeal before this court.\\n. In pertinent part, AS 47.10.010(a)(2) provides as follows:\\nSec. 47.10.010. Jurisdiction, (a) Proceedings relating to a minor under 18 years of age residing or found in the state are governed by this chapter, except as otherwise provided in this chapter, when the court finds the minor\\n(2) to be a child in need of aid as a result of\\n(A)the child being habitually absent from home or refusing to accept available care, or having no parent, guardian, custodian, or relative caring or willing to provide care, including physical abandonment by\\n(i) both parents,\\n(ii) the surviving parent, or\\n(iii) one parent if the other parent's rights and responsibilities have been terminated under AS 25.23.180(c) or AS 47.10.080 or voluntarily relinquished;\\n(B) the child being in need of medical treatment to cure, alleviate, or prevent substantial physical harm, or in need of treatment for mental harm as evidenced by failure to thrive, severe anxiety, depression, withdrawal, or untoward aggressive behavior or hostility toward others, and the child's parent, guardian, or custodian has knowingly failed to provide the treatment;\\n(C) the child having suffered substantial physical harm or if there is an imminent and substantial risk that the child will suffer such harm as a result of the actions done by or conditions created by the child's parent, guardian, or custodian or the failure of the parent, guardian, or custodian adequately to supervise the child[.]\\n(Emphasis added.)\\n. Whether the superior court failed to apply the jurisdictional elements of AS 47.10.010(a)(2) \\\"is a question of statutory interpretation, which this court will decide using its independent judgment adopting the rule of law that is most persuasive in light of precedent, reason, and policy.\\\" In re J.L.F., 828 P.2d 166, 168 n. 5 (Alaska 1992). However, the \\\"factual findings supporting the trial court's determination that a minor is a Child in Need of Aid will not be overturned on review unless clearly erroneous.\\\" A.H. v. State, 779 P.2d 1229, 1231 (Alaska 1989).\\n. AS 47.10.990(1) defines \\\"caring\\\" as follows:\\n\\\"[Cjare\\\" or \\\"caring\\\" under AS 47.10.010-(a)(2)(A) . means to provide for the physical, emotional, mental, and social needs of the child[J\\n. Frank also argues that the State abandoned AS 47.10.010-(a)(2)(C) as a basis for the CINA adjudication. Since we find insufficient evidence in the record to support an adjudication under AS 47.10.010(a)(2)(C), we do not reach this contention.\\n. By way of illustration, Gordon's last hospitalization occurred after he was placed in a foster home to which Frank had no access. During this placement his contact with Gordon was limited to one weekly meeting; the foster parents did not even allow Frank to call Gordon, because his calls were at inconvenient times. Within two weeks Gordon had to be hospitalized. Gordon's psychiatrist testified that the hospitalization was the result of the \\\"major environmental stress\\\" produced by this change in foster placement.\\n. The State's claim that Frank never objected to introduction of hearsay evidence of his alleged physical violence is incorrect. As soon as Kara-molegos began to present hearsay evidence Frank objected on hearsay grounds. The State responded that it was offering the testimony only as the basis for Karamolegos' expert opinion as to Gordon's needs. The court accepted it on that basis.\\nFrank also appeals the admission of hearsay testimony at the subsequent disposition hearing. Since we reverse the CINA adjudication we do not reach this issue.\\n.In addition, even if Karamolegos' hearsay testimony were allowed to prove Frank's abuse, it is inadequate to support the court's determination. Karamolegos made clear that Gordon would lead any parent to use force on occasion. The record fully confirms this assessment. Gordon's first foster parent acknowledges needing to \\\"restrain\\\" Gordon on occasion, including \\\"[pjhysically sit on him if that was necessary.\\\" At first this occurred as often as three or four times a day. Karamolegos described teachers at Gordon's school needing to \\\"control\\\" Gordon, and \\\"upon a number of different occasions\\\" needing to \\\"restrain him\\\" by having \\\"to actually hold him down.\\\" His psychiatrist describes similar events.\\nThe State's own testimony therefore establishes that some degree of' physical force is sometimes appropriate in order to cope with Gordon's violent outbursts. The State presented no evidence that the physical force it alleged Frank used on Gordon on three or four occasions was not of this kind.\\n. Whether the superior court properly took judicial notice is a question of law. This court may substitute its judgment for that of the superior court. No deference to the court's decision is needed, for \\\"[a]n appellate court is often in as good a position as the trial court to ascertain the degree of probability of a judicially ascertainable fact.\\\" 2 Jack B. Weinstein & Margaret A. Berger, Weinstein's Evidence \\u00b6201 [04], at 201-49 (1992).\\n. The State also suggests that any error in taking judicial notice would be harmless, since there was other evidence of violence to support the adjudication under AS 47.10.010(a)(2)(C). We disagree. As we have noted, the State offered no direct evidence of physical abuse on Frank's part.\\n.Alaska Rule of Evidence 201 provides, in pertinent part:\\n(b) General Rule. A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within this state or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.\\n(c) When Discretionary. A court may take judicial notice as specified in subdivision (b), whether requested or not.\\n(d) When Mandatory. Upon request of a party, the court shall take judicial notice of each matter specified in subdivision (b) if the requesting party furnishes sufficient information and has given each party notice adequate to enable the party to meet the request.\\n. The superior court may have meant to invoke the doctrine of issue preclusion; that doctrine is also not applicable to this case. Under the general rule of issue preclusion, an issue of fact which is actually litigated in a former action may, under certain circumstances, be regarded as conclusive in a subsequent case. Restatement (Second) of Judgments \\u00a7 27 (1982). Whether domestic violence orders issued under AS 25.35.010 or AS 25.35.020 can cause issue preclusion in a subsequent child in need of aid proceeding is a topic of some complexity. It is sufficient for our purposes in this opinion to state that issue preclusion in such cases would by no means be inevitable. The issue as to whether the individual in question had committed acts of domestic violence must have actually been litigated; a judgment entered by default does not qualify as actual litigation. Id. \\u00a7 27 cmt. e. Further, various exceptions to the rule of issue preclusion may apply in this case. See Id. \\u00a7 28(3), 28(5), 29(2), 29(5). None of these matters were explored in the trial court and therefore issue preclusion by reason of the domestic violence orders would have been plainly inappropriate.\"}"
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+"{\"id\": \"10366676\", \"name\": \"STATE of Alaska, Appellant, v. Gary NEWCOMB, Appellee\", \"name_abbreviation\": \"State v. Newcomb\", \"decision_date\": \"1994-03-11\", \"docket_number\": \"No. A-4772\", \"first_page\": \"1193\", \"last_page\": \"1195\", \"citations\": \"869 P.2d 1193\", \"volume\": \"869\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Court of Appeals\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T18:40:58.497062+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before BRYNER, C.J., COATS, J., and ANDREWS, Superior Court Judge.\", \"parties\": \"STATE of Alaska, Appellant, v. Gary NEWCOMB, Appellee.\", \"head_matter\": \"STATE of Alaska, Appellant, v. Gary NEWCOMB, Appellee.\\nNo. A-4772.\\nCourt of Appeals of Alaska.\\nMarch 11, 1994.\\nCynthia L. Herren, Asst. Atty. Gen., Office of Sp. Prosecutions and Appeals, Anchorage, and Charles E. Cole, Atty. Gen., Juneau, for appellant.\\nSuzanne Weller, Asst. Public Defender, and John B. Salemi, Public Defender, Anchorage, for appellee.\\nBefore BRYNER, C.J., COATS, J., and ANDREWS, Superior Court Judge.\\nSitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution.\", \"word_count\": \"958\", \"char_count\": \"6081\", \"text\": \"OPINION\\nBRYNER, Chief Judge.\\nOn March 3, 1987, Anchorage police officers located and arrested Gary Newcomb, a fugitive who had escaped from the Wildwood Correctional Center. In the course of the arrest, Newcomb shot and wounded two officers. After taking Newcomb into custody, the police discovered $666 in cash on his person and seized it.\\nNewcomb was charged with attempted murder, first-degree assault, misconduct involving weapons, and escape. While these charges were pending, Newcomb moved for return of the funds seized from him upon his arrest. The superior court denied this motion, ruling that the matter was under investigation and that the money was being properly held as potential evidence. Newcomb was eventually convicted; this court affirmed his conviction and sentence in Newcomb v. State, 800 P.2d 935, 937 (Alaska App.1990).\\nWhile his appeal was pending, Newcomb requested the District Attorney's Office to return his money. The Anchorage Police Department, which had control of the money, declined to return it based on an investigating officer's belief that it might be stolen.\\nOn June 24, 1992, more than a year after his conviction had become final, Newcomb filed a motion in his closed criminal case, seeking return of the money. The state opposed the motion, arguing that the superi- or court lacked jurisdiction and that New-comb's proper remedy would be a civil action against the municipality. Superior Court Judge Milton M. Souter initially denied New-comb's motion, but subsequently granted a motion to reconsider his ruling and ordered the money returned. The state appeals, renewing the jurisdictional arguments it raised below.\\nNewcomb rejoins that the trial court has broad ancillary powers over the disposition of property seized in connection with a criminal case. See, e.g., United States v. Elias, 921 F.2d 870, 872 (9th Cir.1990); United States v. Maez, 915 F.2d 1466, 1468 (10th Cir.1990); United States v. Wingfield, 822 F.2d 1466, 1470 (10th Cir.1987); United States v. LaFatch, 565 F.2d 81, 83 (6th Cir.1977); United States v. Wilson, 540 F.2d 1100, 1104 (D.C.Cir.1976). He argues that the court did not abuse its discretion in this case.\\nAlthough a trial court unquestionably exercises authority over the disposition of evidence upon the conclusion of a criminal case, the court's involvement in such issues typically does not extend beyond assuring that property submitted to the court in the course of the litigation be returned to the submitting party. See, e.g., Criminal Rule 26.1(g), (h); Alaska Court System Office of the Administrative Director, Administrative Bulletin No. 9 \\u00a7 VIII(4) (July 15, 1991). In the interest of judicial economy and fairness, however, a trial court may also exercise authority to decide ancillary issues regarding the disposition of property involved in a criminal proceeding, particularly when the decision of such ancillary issues is incidental to the court's decisions on issues squarely presented in the course of the proceeding. See, e.g., Wilson, 540 F.2d at 1103-04. See also United States v. Martinson, 809 F.2d 1364, 1367-68 (9th Cir.1987). Nevertheless, in matters calling for an exercise of ancillary jurisdiction, the scope of the trial court's discretion is necessarily circumscribed by the principles from which its ancillary powers derive: judicial economy, procedural fairness, and sound public policy. Wilson, 540 F.2d at 1103-04; Martinson, 809 F.2d at 1367-68.\\nIn this ease, prior to Newcomb's trial, the court was required to determine the state's right to retain possession of the money seized from Newcomb upon his arrest. However, prior to the termination of the criminal proceedings, the trial court was never called upon to resolve the competing claims of New-comb and the Municipality of Anchorage as to ownership of the money. This issue is in no sense incidental to issues addressed or decided by the trial court during the cqurse of the criminal litigation; rather, Newcomb belatedly raised it long after his criminal case had been finally resolved.\\nNewcomb could as readily have pursued his claim in a separate civil action. Because his conviction had long since become final and his criminal case had been closed, and because his motion raised issues that the trial court had not been required to resolve during the pendency of the prosecution, adjudication of Newcomb's claim in the context of the closed criminal case offered no advantage of efficiency. To the contrary, as evidenced by the expenditure of state resources vastly disproportionate to the value of the funds in controversy, the superior court's exercise of its equitable powers of ancillary jurisdiction in this case can hardly be defended in the name of judicial economy.\\nWe further fail to see how the interest of fairness was served by allowing Newcomb to proceed in a forum where the Municipality of Anchorage \\u2014 which has actual possession and control of Newcomb's money and is primarily responsible for the resistance he has encountered in seeking its return \\u2014 is not formally a party. Finally, we think it highly questionable whether public policy favors allowing Newcomb to pursue what is essentially a private civil action for money in a procedural setting where he is served by court-appointed counsel at public expense.\\nUnder the circumstances, we conclude that the superior court abused its discretion in entertaining Newcomb's motion and deciding it on its merits in the context of his closed criminal case.\\nThe order entered below is VACATED.\\nMANNHEIMER, J., not participating.\"}"
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+"{\"id\": \"10371576\", \"name\": \"In the DISCIPLINARY MATTER INVOLVING Ronald T. WEST, Respondent\", \"name_abbreviation\": \"In the Disciplinary Matter Involving West\", \"decision_date\": \"1991-01-25\", \"docket_number\": \"No. S-3558\", \"first_page\": \"351\", \"last_page\": \"362\", \"citations\": \"805 P.2d 351\", \"volume\": \"805\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T20:11:36.813540+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before MATTHEWS, C.J., and RABINO WITZ, COMPTON and MOORE, JJ.\", \"parties\": \"In the DISCIPLINARY MATTER INVOLVING Ronald T. WEST, Respondent.\", \"head_matter\": \"In the DISCIPLINARY MATTER INVOLVING Ronald T. WEST, Respondent.\\nNo. S-3558.\\nSupreme Court of Alaska.\\nJan. 25, 1991.\\nWalter R. Arden, Anchorage, for respondent.\\nStephen J. Van Goor, Bar Counsel, Anchorage, for Alaska Bar Ass\\u2019n.\\nBefore MATTHEWS, C.J., and RABINO WITZ, COMPTON and MOORE, JJ.\", \"word_count\": \"7062\", \"char_count\": \"44258\", \"text\": \"OPINION\\nRABINO WITZ, Justice.\\nThis appeal concerns issues of attorney misconduct stemming from Ronald T. West's actions with regard to a negotiated property loss settlement. A disciplinary action against West was heard by an Area Hearing Panel (\\\"Panel\\\"). The Panel concluded that West violated certain disciplinary rules and recommended a 90-day suspension from practice.\\nWest and the Bar Association appealed to the Disciplinary Board of Governors of the Alaska Bar Association (\\\"Board\\\"). In its decision, the Board found that West's conduct constituted \\\"serious criminal misconduct\\\" and recommended a two-year suspension. The Board further recommended that West be required to petition for reinstatement, demonstrating his fitness to practice law and passage of the Multistate Professional Responsibility Exam (MPRE).\\nWest now brings this appeal from the findings, conclusions, and recommendations of the Board.\\nI. FACTS AND PROCEEDINGS.\\nA. The Release.\\nThomas Briggs, an independent truck owner and operator, was involved in an accident on the Dalton Highway. The accident was caused by a washed out approach to a bridge over the Nutilinktak River. Briggs was insured for the truck itself, but not for spare parts, personal effects, or loss of its use. Briggs retained West, on a one-third contingency fee basis plus costs, to represent him in a suit against the State of Alaska to recover damages for these uninsured items.\\nWest filed a complaint against the state and subsequently entered into settlement negotiations with Northern Adjusters, which was acting on the state's behalf. The state made an offer to settle the suit but this offer was rejected by Briggs. A short time later, on March 7, 1986, Briggs died of a heart attack. His widow, Sandra Briggs, contacted West to inform him of her husband's death and inquire about the lawsuit's future. West discussed the claim with her and suggested that they accept the settlement offer, if it was still open. Mrs. Briggs agreed. West then contacted Northern Adjusters to discuss the settlement. An agreement was reached where, for $5,500 consideration, West would dismiss the case with prejudice and release the state from liability.\\nWest then requested that Mrs. Briggs come to his office to sign the contemplated release. West, concerned that the settlement offer would be withdrawn if the state learned of Mr. Briggs' death, instructed Mrs. Briggs to sign the release form in both her name and her husband's name.\\nAfter Mrs. Briggs signed the release, West notarized it as follows:\\nOn the 26 day of March, 1986, before me personally appeared the above [referring to Thomas and Sandra Briggs] to me known to be the person(s) named herein and who executed the foregoing Release and they acknowledged to me that they voluntarily executed the same.\\nWest then signed and dated the release in his capacity as a notary public.\\nWest exchanged the release for the $5,500 settlement check, which was made out to \\\"Thomas Briggs and Ron West, Attorney.\\\" West subsequently filed in the superior court a stipulation dismissing the case with prejudice. West deposited the check in a trust account, deducted one-third plus costs as his compensation, and wrote a check to the \\\"Estate of Tom Briggs\\\" for the remainder.\\nB. Bar Association Proceedings.\\nThe Panel found that West violated the Code of Professional Responsibility: DR 1-102(A)(4), (5), (6), as well as DR 7-102(A)(5). In determining the appropriate sanction, the Panel used the ABA Standards for Imposing Lawyer Sanctions (1986) as guidelines. The Panel recommended a 90-day suspension for West.\\nThe Board affirmed the Panel's findings as to West's violations of the Code of Professional Responsibility. The Board disapproved of the Panel's recommended 90-day suspension; it concluded that a two-year suspension was more appropriate. The Board also required that West petition for reinstatement and pass the MPRE.\\nII. DISCUSSION.\\nWest specifies eleven separate errors.\\nA. DR 1-102(A)(4).\\nWest contends that the Panel and Board erred in concluding that his misconduct involved fraud and that he, therefore, violated DR 1-102(A)(4).\\nViolations of DR 1-102(A)(4) are restricted to intentional acts of misconduct. In re Simpson, 645 P.2d 1223, 1227 (Alaska 1982), methodology modified by Disci plinary Matter Involving Buckalew, 731 P.2d 48 (Alaska 1986). The ABA Standards for Imposing Lawyer Sanctions provide that \\\"intent\\\" encompasses the \\\"conscious objective or purpose to accomplish a particular result.\\\" ABA Model Standards, Lawyer Sanctions, Definitions, ABA/BNA at 01:807 (1986).\\nThe Panel found West in violation of DR 1-102(A)(4). It concluded that West \\\"intentionally notarized a signature that he knew to be false and, in the course of doing so, made statements and representations which he knew were false.\\\" The Panel further concluded that West's purpose was to cause the state \\\"to enter into settlement at a time when [West] believed that if the facts were known the settlement might not be agreed to.\\\" The Board affirmed the Panel's conclusion with regard to DR 1-102(A)(4).\\nWest asserts that he did not violate DR 1-102(A)(4) because his actions, while possibly negligent, were not intentional. West further contends that his actions in regard to the release were neither fraudulent nor material since the release was not relied upon by the state in making the settlement.\\nWe reject West's contentions. It is clear that West violated DR 1 \\u2014 102(A)(4). The evidence shows that West intended the consequences of his actions. He intended that the state go through with the settlement even though Mr. Briggs was dead. Thus, we conclude that West engaged in dishonest conduct in violation of DR 1-102(A)(4).\\nB. DR 1-102(A)(5).\\nWest further contends that the Panel and Board erred in holding that his actions constituted conduct prejudicial to the administration of justice in violation of DR 1-102(A)(5). More particularly, West argues that his actions, although admittedly improper, were intended to \\\"facilitate\\\" justice. Additionally, West asserts that justice was not obstructed since the questioned release was never intended to be filed in court.\\nWest's contentions are devoid of merit. The record clearly reveals that West violated DR 1 \\u2014 102(A)(5). West admits that he notarized a statement which he knew to be false. It is beyond dispute that such conduct is in fact prejudicial to the administration of justice.\\nC. DR 1-102(A)(6).\\nWest first contends that DR 1-102(A)(6) applies to such \\\"other conduct\\\" as is not proscribed by DR l-102(A)(3)-(5) and is only to be used when the other subsections of DR 1-102 are inapplicable. Alternatively, West asserts that DR 1-102(A)(6) is constitutionally infirm because reasonable attorneys \\\"must guess what conduct it proscribes.\\\"\\nIn our view, West's first contention has merit. DR 1-102(A)(6) is intended as a \\\"catch-all\\\" for such \\\"other conduct\\\" as is not proscribed by the preceeding provisions of DR 1-102. The Board has presented no argument to support a position that West can be found to have violated both DR 1-102(A)(4) & (5), and also DR 1-102(A)(6).\\nWe reject West's alternative contention that DR 1-102(A)(6) is void for vagueness. Regarding vagueness, we have said that\\nThe Code of Professional Responsibility is necessarily written in broad terms. It would be extremely difficult, if not impossible, to develop standards specifically detailing all forms of attorney misconduct. Although capable of broad interpretation, we believe the meaning of the Disciplinary Rules cited in this case is sufficiently clear to satisfy the requirements of due process.\\nIn re Vollintine, 673 P.2d 755, 758 (Alaska 1983). See also Committee on Professional Ethics v. Durham, 279 N.W.2d 280, 284 (Iowa 1979) (DR 1-102(A)(6) not violative of a \\\"reasonable attorney\\\" due process standard as applied to alleged intimate physical contact by attorney with inmate client during prison visits). West's conduct involved dishonesty which clearly reflected upon his fitness to practice law. Therefore, we conclude that DR 1-102(A)(6), as applied to West, does not violate due process.\\nD. Appropriate Sanctions.\\nIn Buckalew, we stated that \\\"we will refer to the ABA Standards [for Imposing Lawyer Sanctions] and methodology as an appropriate model for determining sanctions for lawyer misconduct in this state,\\\" 731 P.2d at 52. The ABA Standards provide a four-pronged test for determining disciplinary sanctions:\\n(1) What ethical duty did the lawyer violate? (A duty to a client, the public, the legal system, or the profession?)\\n(2) What was the lawyer's mental state? (Did the lawyer act intentionally, knowingly, or negligently?)\\n(3) What was the extent of the actual or potential injury caused by the lawyer's misconduct? (Was there a serious or potentially serious injury?)\\n(4) Are there any aggravating or mitigating circumstances?\\nABA Standards, Theoretical Framework, ABA/BNA at 01:805-06.\\nId. These questions are addressed within a three-step methodology:\\nUnder the foregoing methodology, our task., in this case is threefold. The initial step requires that we answer the first three \\\"prongs\\\" of the ABA test set forth above. Next, we must look to the ABA Standards to discern what sanction is recommended for the \\\"type\\\" of misconduct found in our initial inquiry. After determining the recommended sanction, we must ascertain whether any aggravating or mitigating circumstances exist which warrant increasing or decreasing the otherwise appropriate sanction. See, ABA Standards, Methodolgy [sic], ABA/BNA at 01:803-04.\\nId.\\n(i). Ethical Duties.\\nAs previously discussed, West violated DR 1-102(A)(4) (fraudulent conduct); DR 1-102(A)(5) (conduct prejudicial to the administration of justice); and DR 7-102(A) (knowingly making a false statement of law or fact while representing a client). Each of these violations constituted breaches by West of ethical duties. See ABA Model Standards, Lawyer Sanctions \\u00a7 4.6 (Duties Owed to Clients; Lack of Candor); \\u00a7 5.1 (Duties Owed to Public, Failure to Maintain Personal Integrity); \\u00a7 6.1 (Duties Owed to the Legal System; False Statements, Fraud and Misrepresentation); \\u00a7 6.2 (Duties Owed to the Legal System; Abuse of Legal Process). See also ABA Model Code of Professional Responsibility EC 1-5 (1980) (\\\"Because of his position in society, even minor violations of law by a lawyer may tend to lessen public confidence in the legal profession. Obedience to law exemplifies respect for law. To law yers especially, respect for the law should be more than a platitude.\\\").\\n(ii). Mental State.\\nThe second prong of the test requires determining West's mental state. The Panel, with the Board affirming, concluded that West's misconduct was both knowing and intentional. The Panel based it conclusion on the fact that West intended the state to believe that Mr. Briggs actually signed the release. We affirm. The requisite intent does not have to include malfeasance, only \\\"the conscious objective or purpose to accomplish a particular result.\\\" ABA Model Standards, Definitions, ABA/BNA at 01:807.\\n(iii). Injury or Potential Injury.\\nThe Panel, with the Board affirming, found actual injury to both the public and the legal profession as a result of West's misconduct. At a minimum, it impairs confidence in attorneys' honesty. Additionally, the Panel, with the Board affirming, found the potential for injury \\\"to the estate, Mrs. Briggs, and the state as settling party, as a result of [West's] actions in permitting [the] false release to be signed and used in settlement of the Briggs' lawsuit.\\\"\\nWest asserts that his misconduct caused no actual injury to anyone. West points out that the estate was satisfied with the settlement, and the state considered the settlement amount fair, stating that its position would not have changed had it known of Mr. Briggs' death. West maintains that to find actual injury here provides no guidance in those situations where actual harm really exists. For essentially the same reasons, West also asserts that there was no potential injury. West suggests that no potential injury exists if later facts show the potential injury to be \\\"highly theoretical.\\\"\\nBar counsel supports the Panel's finding that the public and the legal system suffer whenever a notary public engages in misconduct. Additionally, Bar counsel asserts that West's conduct \\\"created potential injury and expense to the legal system had the settlement been withdrawn because of the false release and further proceedings ensued over the enforceability of that false release.\\\"\\nRegarding this point, the Panel concluded\\n. actual injury to both the public and the legal profession occurs whenever an attorney falsifies documents, intentionally misuses his notary seal, or similarly deceives the public or an opposing party. Such actions fall well below the standard of conduct expected of attorneys and, if nothing else, destroys both the public's and the legal system's confidence in the honesty of the attorneys with whom they have dealings.\\nWe cannot fault these observations, although we agree with West that little or no actual injury to the estate or the State of Alaska occurred. As West points out, no one has challenged the settlement or suggested that they would have acted in any other manner.\\nConcerning West's contentions that there was no potential injury as a consequence of his conduct we take a different view. It was \\\"reasonably foreseeable\\\" that, at the time West notarized the release, harm could come to the Briggs' estate, the public, the legal system and the legal profession. As Bar counsel points out, had the settlement been withdrawn because of West's misconduct, the ensuing legal entanglements would have injured the following: the estate, at the least, in not receiving the settlement money; the state, in spending time and resources to assert its position and defend its actions; the legal system, in expending time and resources to settle any dispute arising from the false release; and the public, in ultimately paying for the implications of West's misconduct.\\n(iv). Recommended Sanctions in Light of West's Misconduct.\\nThe Board's decision found\\n. that Mr. West's conduct constituted serious criminal misconduct involving intentional interference with the administration of justice, false swearing and misrepresentation, and this is more appropriately described under paragraphs 5.11 and 5.12 [sanction standards]. The Board disapproves of the committee's recommended sanction of 90 days suspension as not severe enough for these serious violations. The lack of proof of a selfish motive, the remoteness of prior offenses and the presence of personal and medical problems serve to mitigate the otherwise appropriate sanctions of disbarment, or more lengthy suspension.\\nThe Board, therefore, concludes that the most appropriate sanction is a 2 year suspension for Mr. West, coupled with a requirement that Mr. West as a condition of readmission to the bar be required to petition for reinstatement and demonstrate his fitness to practice, and to take and pass the Multistate Professional Responsibility Examination.\\nSections 5.11 and 5.12 of the ABA Model Standards for Imposing Lawyer Sanctions provide that either disbarment or suspension are appropriate sanctions in the factual context of this case. We affirm the Board's determination that disbarment or suspension are generally appropriate sanctions given the nature of West's miscon duct, and specifically reject West's assertion that Section 5.13 (Reprimand) is applicable in this factual context.\\n(v). Aggravating or Mitigating Factors.\\nIn addressing the subject of aggravating factors, the Panel gave \\\"little weight\\\" to the previous disciplinary actions which involved West, finding that the prior conduct was dissimilar from that involved in the present case. Additionally, the Panel found no selfish or dishonest motive in West's actions. The Panel did, however, find that West's length of practice was an aggravating factor in that he must have known of his conduct's impropriety.\\nPrior disciplinary offenses are relevant in an aggravating factors analysis. ABA Model Standards, Lawyer Sanctions, \\u00a7 9.21(a), ABA/BNA at 01:841. West violated the Code of Professional Responsibility on three occasions prior to the present action. On each occasion, West received a private admonition as a sanction. Thus, we find no merit in West's contention that neither the Panel nor the Board should have considered these prior disciplinary offenses.\\nA dishonest or selfish motive is also relevant in an aggravating factors analysis. ABA Model Standards, Lawyer Sanctions, \\u00a7 9.21(b), ABA/BNA at 01:841. West had a one-third contingency fee plus costs arrangement with Briggs. West's share of the settlement proceeds was $1,650. It is conceivable that the collection of this money provided a motive for West to act as he did.\\nFinally, an attorney's experience in the practice of law is relevant in an aggravating factors analysis. ABA Model Standards, Lawyer Sanctions, \\u00a7 9.21(i), ABA/BNA at 01:842. West has been a member of the Alaska Bar Association since 1971. In our view, West's extensive practice experience provides the only significant aggravating circumstance in this case.\\nIn regard to mitigating factors, the Panel, in its findings and conclusions regarding sanctions, found the following:\\nRespondent argues in mitigation that he was suffering from severe personal and emotional problems and that he was suffering from mental disability or impairment at the time of misconduct. The testimony at the sanctions hearing established that, at the time of Respondent's misconduct, he was involved in contested and very expensive litigation relating to personal business matters and that this litigation threatened to ruin him financially. As a result of the pressures in his personal life, Respondent was suffering from intermittent depression which, ultimately, caused him to seek psychiatric assistance. Respondent is presently under the care and counseling of a psychiatrist. Respondent also called several attorneys as witnesses to his good character and reputation. This testimony was not substantially refuted by the Bar and is accepted as a mitigating factor by the panel.\\nIn our view, the Panel's findings concerning mitigating circumstances are fully supported by the record.\\nIII. CONCLUSION.\\nOur study of the record and the arguments of the parties to this appeal persuades us that the Panel's recommended sanction should be adopted as the appropriate sanction in this case. In its conclusions regarding sanctions, which we expressly adopt, the Panel stated,\\nBar counsel has recommended that Respondent be suspended for a period of time not to exceed two years as a result of his conduct. Conversely, Respondent argues that he should be issued a private reprimand. The panel has concluded that a private reprimand is not sufficient to express the seriousness of Respondent's conduct. The bar and the public have a right to expect that lawyers will not counsel their clients to affix false signatures to legal documents, misuse their notary power to verify what the attorney knows is a false signature or use documents falsely signed and notarized in settlement of legal disputes:\\n[W]e cannot ignore the fact that our paramount duty, \\\"lies in the assurance that the public will be protected in the performance of the high duties of . attorney[s].... Our primary concern must be the fulfillment of proper professional standards, whatever the unfortunate cause, emotional or otherwise for the attorney's failure to do so.\\\"\\nDisciplinary Matter Involving Buckalew, 731 P.2d 48, 54 (Alaska 1986) (quoting In re Possino [37 Cal.3d 163, 207 Cal.Rptr. 543, 548], 689 P.2d 115, 120 (Cal.1984)). Respondent's conduct in this case was less serious than that involved in Buckalew. Respondent was not trying to cover-up the consequences of his own malpractice. Indeed, the irony of this situation is that if Respondent had followed proper procedures and opened an estate so that the proper legal representative could affix his or her signature, the same settlement could probably have been effected just a few weeks later. Nor is Respondent's conduct as serious as that in Disciplinary Matter Involving Walton, 676 P.2d 1078 (Alaska 1983), in which the false document was created by the attorney and then used affirmatively in court proceedings. On the other hand, Respondent's conduct is more serious than that in Matter of Conti [75 N.J. 114], 380 A.2d 691 (New Jersey 1977) in which an attorney directed his secretary to sign the clients' names to deeds after contacting the clients, who had moved away, and being instructed to do whatever was necessary to have the deeds recorded. The discipline in Buckalew was disbarment. The discipline in Walton was suspension for 18 months. The discipline in Conti was a reprimand. The seriousness of Respondent's conduct suggests that a suspension for a period of 90 days is appropriate. The panel recommends a 90 day suspension.\\nRonald T. West is suspended from the practice of law for a period of 90 days.\\n. West emphasizes throughout his briefing before us that he \\\"considered Mrs. Briggs to be the de facto personal representative of\\\" Mr. Briggs' estate at the time she signed the release. Mrs. Briggs was not officially named as one of the two co-personal representatives of the estate until April 10, 1988, two weeks after the release was signed. The other co-representative was Gary Briggs, a son of Mr. Briggs by an earlier marriage. West explained the delay in having Mrs. Briggs named personal representative: he believed the length of such a proceeding might cause the state to learn of Mr. Briggs' death and thus withdraw the settlement offer.\\n. West justified his actions by asserting that the claim was valid, the settlement amount fair, and the state would possibly and unjustly withdraw the offer if it knew of Brigg's death. West's actions were discovered by an attorney working on the Briggs estate. In a letter to the firm handling the estate, West explained his conduct as follows:\\nI was faced with the choice of doing something according to the rules and seeing a client get screwed or not telling the defendant and getting something. I guess I wonder what one is to do when faced with the situation where if you do the right thing, your client might suffer or suffer a great deal and bending the rules to get something for the client.... It just really bothers me that if we had done nothing, the defendant would have prevailed, when they were so clearly at fault. Prior to sending the letter to the firm han-\\ndling the estate. West contacted the Alaska Bar Association and told them what happened. Thereafter, disciplinary proceedings were instituted against West.\\n. The appropriate standard of review for attorney disciplinary proceedings is well established.\\nThough this court has the authority, if not the obligation, to independently review the entire record in disciplinary proceedings, findings of fact made by the Board are nonetheless entitled to great weight. The deference owed to such findings derives from the responsibility to conduct disciplinary proceedings which this court has delegated to the Bar Association. Where findings of fact entered by the Board are challenged on appeal to this court, . the respondent attorney bears the burden of proof in demonstrating that such findings are erroneous.... As a general rule, moreover, we ordinarily will not disturb findings of fact made upon conflicting evidence. .\\nIn deciding the appropriate punishment, we need not accept the Disciplinary Board's recommendation, but may exercise our own independent judgment....\\nIn re Simpson, 645 P.2d 1223, 1226-28 (Alaska 1982) (citations omitted), methodology modified by Disciplinary Matter Involving Buckalew, 731 P.2d 48 (Alaska 1986).\\n.Disciplinary Rule 1-102(A)(4) provides that:\\n(A) A lawyer shall not:\\n(4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.\\n. This court has found DR 1-102(a)(4) violations where an attorney fabricated a deed and attached it to an amended complaint, Disciplinary Matter Involving Walton, 676 P.2d 1078, 1081-86 (Alaska 1983), appeal dismissed mem. sub. nom. Walton v. Alaska Bar Assoc., 469 U.S. 801, 105 S.Ct. 54, 83 L.Ed.2d 6 (1984), and where an attorney falsified documentary evidence and falsely affirmed their authenticity. Matter of Stump, 621 P.2d 263 (Alaska 1980), methodology modified by Buckalew, 731 P.2d 48.\\n. Disciplinary Rule 1-102(A)(5) provides that (A) A lawyer shall not:\\n(5) Engage in conduct that is prejudicial to the administration of justice.\\n. This court has found DR 1 \\u2014 102(A)(5) violations where an attorney fabricated a deed and attached it to an amended complaint, Walton, 676 P.2d at 1081-88; where an attorney submitted an inaccurate interrogatory response, Simpson, 645 P.2d at 1228; and, where an attorney signed an affidavit, which was filed with the court, stating that a note was prepared and sent on a certain date when the note was actually prepared five years later, Stump, 621 P.2d at 267.\\n. DR 1-102(A)(6) provides:\\n(A) A lawyer shall not:\\n(6) Engage in any other conduct that adversely reflects on his fitness to practice law.\\n. We note that the Panel, with the Board affirming, also found West in violation of DR 7-102(A)(5) (\\\"In his representation of a client, a lawyer shall not . knowingly make a false statement of law or fact.\\\"). Review of the record shows that West admits he violated DR 7-102(A)(5), but contends the \\\"violation was de minimis \\\" in view of his overall \\\"legitimate goal of receiving the proceeds of the prior settlement of the estate while retaining the client's confidences.\\\" In our view, such action is not de minimis.\\n.As we explained in Buckalew, 731 P.2d at 53 nn. 18 & 19:\\nThe ABA Standards define \\\"Intent\\\" as: \\\"the conscious objective or purpose to accomplish a particular result.\\\" ABA Standards, Definitions, ABA/BNA at 01:807. Accord AS 11.81.-900(a)(1) (defining criminal intent as a conscious objective to cause a particular result).\\nThe ABA Standards define \\\"knowledge\\\" as: \\\"The conscious awareness of the nature or attendant circumstances of the conduct . without a conscious objective . to accomplish a particular result.\\\" ABA Standards, Definitions, ABA/BNA at 01:807. Accord AS 11.81.900(a)(2) (knowingly for criminal acts defined as an awareness that conduct is of a particular nature or that a particular circumstance exists).\\nThe ABA Standards define \\\"Negligence\\\" as: \\\"The failure of a lawyer to- heed a substantial risk that circumstances exist or that a result will follow, which failure is a deviation from the standard of care that a reasonable lawyer would exercise in the situation.\\\" ABA Model Standards, Definitions, ABA/BNA at 01:807. Accord AS 11.81.900(a)(4) (defining criminal negligence as \\\"fail[ing] to perceive a substantial and unjust-\\u00a1fiable risk that the result will occur or that the circumstance exists.\\\")\\n. We have found an attorney's actions to be knowing and intentional \\\"[w]hen he prepared [a] forged 'settlement agreement' . with the conscious objective to deceive Whittier Fuel into believing its case had been settled.\\\" Buckalew, 731 P.2d at 53.\\n. The ABA Model Standards provide definitions for \\\"injury\\\" and \\\"potential injury\\\":\\n\\\"Injury\\\" is harm to a client, the public, the legal system, or the profession which results from a lawyer's misconduct. The level of injury can range from \\\"serious\\\" injury to \\\"little or no\\\" injury; a reference to \\\"injury\\\" alone indicates any level of injury greater than \\\"little or no\\\" injury.\\n\\\"Potential injury\\\" is the harm to a client, the public, the legal system or the profession that is reasonably foreseeable at the time of the lawyer's misconduct, and which, but for some intervening factor or event, would probably have resulted from the lawyer's misconduct. ABA Model Standards, Definitions, ABA/BNA at 01:807.\\n. The Board specifically disapproved of the Panel's finding that ABA Sanctions guideline 5.13 was applicable. Standard 5.13 reads as follows:\\nReprimand is generally appropriate when a lawyer knowingly engages in any other conduct that involves dishonesty, fraud, deceit, or misrepresentation and that adversely reflects on the lawyer's fitness to practice law.\\n. Section 5.11 provides the following:\\nDisbarment is generally appropriate when:\\n(a) a lawyer engages in serious criminal conduct a necessary element of which includes intentional interference with the administration of justice, false swearing, misrepresentation, fraud, extortion, misappropriation, or theft; or the sale, distribution or importation of controlled substances; or the intentional killing of another; or an attempt or conspiracy or solicitation of another to commit any of these offenses; or\\n(b) a lawyer engages in any other intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on the lawyer's fitness to practice.\\nSection 5.12 states:\\nSuspension is generally appropriate when a lawyer knowingly engages in criminal conduct which does not contain the elements listed in Standard 5.11 and that seriously adversely reflects on the lawyer's fitness to practice.\\n. The Panel concluded that Section 6.12 applied to West's misconduct. This standard reads:\\nSuspension is generally appropriate when a lawyer knows that false statements or documents are being submitted to the court or that material information is improperly being withheld, and takes no remedial action, and causes injury or potential injury to a party to the legal proceeding, or causes an adverse or potentially adverse effect on the legal proceeding.\\nWe reject West's contention that his actions should not be construed as involving a false statement made to the court. In submitting the release, West knew that his misstatement of fact would be implicated in a legal proceeding.\\n. Aggravating factors \\\"may justify an increase in the degree of discipline to be imposed.\\\" ABA Model Standards, Lawyer Sanctions, \\u00a7 9.21, ABA/BNA at 01:841. These factors include the following:\\n(a) prior disciplinary offenses;\\n(b) dishonest or selfish motive;\\n(c) a pattern of misconduct;\\n(d) multiple offenses;\\n(e) bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with rules or orders of the disciplinary agency;\\n(f) submission of false evidence, false statements, or other deceptive practices during the disciplinary process;\\n(g) refusal to acknowledge wrongful nature of conduct;\\n(h) vulnerability of victim;\\n(i) substantial experience in the practice of law;\\n(j) indifference to making restitution.\\nId. \\u00a7 9.22, at 01:841-42.\\n. We agree with the Panel and the Board that two of the prior disciplinary actions are remote in time, and that all are dissimilar to the misconduct at issue. Additionally, the amount of money West stood to gain is not, in our view, sufficient to have induced West to risk getting caught.\\n. Mitigating factors \\\"may justify a reduction in the degree of discipline to be imposed.\\\" ABA Model Standards, Lawyer Sanctions, \\u00a7 9.31, ABA/BNA at 01:842. These factors include the following:\\n(a) absence of a prior disciplinary record;\\n(b) absence of a dishonest or selfish motive;\\nfc) personal or emotional problems;\\n(d) timely good faith effort to make restitution or to rectify consequences of misconduct;\\n(e) full and free disclosure to disciplinary board or cooperative attitude toward proceedings;\\n(f) inexperience in the practice of law;\\n(g) character or reputation;\\n(h) physical or mental disability or impairment;\\n(i) delay in disciplinary proceedings;\\n(j) interim rehabilitation;\\n(k) imposition of other penalties or sanctions;\\n(/) remorse;\\n(m) remoteness of prior offenses.\\nABA Model Standards, Lawyer Sanctions, \\u00a7 9.32, ABA/BNA at 01:842.\\n. In its decision, the Board found that the \\\"lack of proof of a selfish motive, the remoteness of prior offenses and presence of personal and medical problems serve to mitigate the otherwise appropriate sanctions of disbarment, or more lengthy suspension.\\\"\\n. West has additionally argued that Bar counsel's disclosure to the Panel of other grievances concerning West was a breach of confidence in violation of Alaska Bar Rule 22(b) and constituted prejudicial error. West, prior to the Panel's decision in the Briggs matter, alleged that Bar counsel had breached a confidentiality. Bar counsel brought this matter to the attention of the Panel in a closed proceeding at which West's counsel, John Strachan, was present. The Panel inquired as to the basis for the allegations. Bar counsel stated that he had discussed with another of West's attorneys, Richard Crabtree, \\\"other grievances\\\" in which West was involved. It is the reference to \\\"other grievances\\\" that West argues constitutes prejudicial error.\\nRegardless of the merits of the initial breach of confidentiality claim, no prejudicial error is found in Bar counsel's conduct. First, a reference to \\\"other grievances\\\" is not enough, in our opinion, to prejudice the Panel. Second, the precedential effect of West's position would be to make Bar counsel unable to respond to allegations of improper conduct involving himself or herself which were initiated by another party-\\nWest also argues that, due to the Panel's confusion and uncertainty in dealing with procedural motions, good cause exists for his failure to file a peremptory challenge motion within the specified time period and, as a result of the error in denying his challenge, he suffered prejudice. There is no evidence of this \\\"confusion\\\" and \\\"uncertainty.\\\" Indeed, the Panel found that the Bar Association had repeatedly attempted to inform West of the Panel's membership, yet West did not accept his mail. The Panel's decision was not, in our opinion, erroneous.\\nWe have reviewed West's remaining assertions of error and conclude they are without merit.\"}"
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+"{\"id\": \"10373030\", \"name\": \"STATE of Alaska; City of Hoonah, Alaska; Frank Willie Lee, individually and as a police officer, Hoonah, Alaska; Matthew J. Walker, individually and as a police officer, Hoonah, Alaska; Gerald J. Shanahan, individually and as a police officer with Alaska State Troopers, Appellants, v. Thomas C. WILL, Appellee\", \"name_abbreviation\": \"State v. Will\", \"decision_date\": \"1991-03-15\", \"docket_number\": \"Nos. S-2904, S-2950\", \"first_page\": \"467\", \"last_page\": \"471\", \"citations\": \"807 P.2d 467\", \"volume\": \"807\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T18:06:07.613925+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before MATTHEWS, C.J., and RABINO WITZ, BURKE, COMPTON and MOORE, JJ.\", \"parties\": \"STATE of Alaska; City of Hoonah, Alaska; Frank Willie Lee, individually and as a police officer, Hoonah, Alaska; Matthew J. Walker, individually and as a police officer, Hoonah, Alaska; Gerald J. Shanahan, individually and as a police officer with Alaska State Troopers, Appellants, v. Thomas C. WILL, Appellee.\", \"head_matter\": \"STATE of Alaska; City of Hoonah, Alaska; Frank Willie Lee, individually and as a police officer, Hoonah, Alaska; Matthew J. Walker, individually and as a police officer, Hoonah, Alaska; Gerald J. Shanahan, individually and as a police officer with Alaska State Troopers, Appellants, v. Thomas C. WILL, Appellee.\\nNos. S-2904, S-2950.\\nSupreme Court of Alaska.\\nMarch 15, 1991.\\nRehearing Denied April 16, 1991.\\nWilliam G. Mellow, Asst. Atty. Gen., Juneau, and Douglas B. Baily, Atty. Gen., Juneau, for appellants State of Alaska and Gerald J. Shanahan.\\nKenneth P. Jacobus and Gregory W. Lessmeier, Hughes, Thorsness, Gantz, Powell & Brundin, Juneau, for appellants City of Hoonah, Frank Willie Lee and Matthew J. Walker.\\nThomas G. Nave, Gullufsen & Nave, Juneau, and Peter M. Page, Juneau, for ap-pellee.\\nBefore MATTHEWS, C.J., and RABINO WITZ, BURKE, COMPTON and MOORE, JJ.\", \"word_count\": \"2517\", \"char_count\": \"14893\", \"text\": \"OPINION\\nCOMPTON, Justice.\\nThis appeal arises out of an action for damages by a mentally impaired individual, Thomas C. Will, who was shot by law enforcement officers who were attempting to contain and help him. Based on the jury's special verdict, the trial court entered judgment awarding damages to Will against Hoonah Police Chief Frank Willie Lee, Officer Matthew J. Walker, the City of Hoo-nah, Alaska State Trooper Gerald J. Shana-han, and the State of Alaska. All of the defendants appealed. Following oral argument on the appeal, Will reached an amicable settlement with the City of Hoonah, Chief Lee and Officer Walker. Therefore, we address only the liability of Trooper Shanahan and the State of Alaska.\\nI. FACTUAL AND PROCEDURAL BACKGROUND\\nThomas C. Will sought damages for injuries he suffered in a confrontation with law enforcement officers on September 11, 1984, in Hoonah, Alaska. At the time, Will was a commercial fisherman who resided in Sitka. He did not return to Sitka after the 1984 halibut season ended in early September, since his wife had informed him in August that she was divorcing him. Instead, Will went to Elfin Cove where he spent several days fraternizing and drinking with other fishermen.\\nWhile in Elfin Cove, Will exhibited acute paranoia, fearing that unknown persons were going to kill him. Apparently another fisherman had planted the seed for Will's delusions, having told Will that people were out to kill him because they thought he was a narcotics agent who would turn people in for running narcotics. Although initially Will did not believe the tale, soon he became increasingly frightened of the people around him.\\nWill started acting irrationally. He left Elfin Cove hastily in his boat, the FV Ed-rie. In an effort to mislead those he imagined intended to kill him, Will told a friend via radio that he was heading to Pelican. Will in fact went to Gustavus. His paranoia increased. Will told an acquaintance in Gustavus that he did not want to call the Alaska State Troopers (troopers) because he feared that whoever responded, even if in uniform, could be the person out to kill him. After one night in Gustavus, Will cut his anchor line and departed for Pleasant Island.\\nWill anchored off of Pleasant Island using a makeshift anchor. He became more afraid, jumped off his boat, and swam about 75 yards to the boat of another friend. When Will climbed onto the friend's boat, he was heavily armed and said that he was a Navy S.E.A.L. Shortly thereafter, he jumped into the water again and swam to the boat of yet another friend. Although it was late at night, Will woke his friend and they spent three hours cruising around in Icy Strait.\\nWill returned to his boat and stayed there until daybreak when he departed for Point Adolfus. There he left his boat adrift, paddled his skiff to shore, and headed into the woods. He was dressed only in cutoffs and boots.\\nAfter Will's boat was found adrift in Icy Strait, family members contacted the Hoo-nah Police Department (HPD) and the troopers on September 10, 1984, to report Will missing. They told the HPD and troopers about Will's mental instability. They explained that Will's paranoia made it likely that he would react unfavorably to the sight of uniformed police officers and suggested that they be permitted to approach him first. Several of Will's friends told the HPD that Will was armed with a pistol and was a threat to any uniformed officers.\\nWill turned up at Port Frederick on September 11 and got a ride to Hoonah. Several Hoonah residents called the HPD and reported that Will was in town, armed with a pistol. Will visited some friends and then went to the Hoonah harbor, where his boat had been towed after it was found adrift. Will located his boat, but was unable to get it started. He remained on his boat, threatening persons who walked nearby. At about 9:30 p.m., while he was still on his boat, he fired a shot with his pistol. This action was reported to Chief Frank Lee, who arrived at the harbor a few minutes later with several other officers, including Matthew Walker. Walker was a reserve officer who had no formal police training. Chief Lee had also called for and obtained back-up from off-duty Trooper Gerald Shanahan. Relying on information that Will might be afraid of persons in uniform, they removed their uniforms before approaching the area.\\nThe officers covertly surrounded the boat and began to warn away anyone who came toward the dock. Chief Lee had not formulated a specific plan of action and did not instruct the officers how to respond in the event Will left his boat. At one point Chief Lee left the harbor to get an additional weapon at the police station.\\nFor about an hour and a half the officers watched the FV Edrie from hiding places behind crab pots piled on the dock. Will was unaware that the officers had surrounded him. They made no attempt to communicate with him. Ultimately, Chief Lee wanted to bring a relative or friend of Will's to the scene. Harbormaster Paul Dybdahl tried to reach Will's brother Craig by marine radio, but was unsuccessful. The HPD was unsuccessful in trying to get in touch with Will's wife in Sitka. Sandy Will later called the HPD from Juneau, but was unable to get to Hoonah.\\nDuring the surveillance Will left the FV Edrie for approximately ten minutes and visited another boat docked nearby. After returning to the FV Edrie, Will again tried to start the boat. After he failed to start it for the second time, he left the boat and walked or ran up the dock ramp, armed with a pistol. Chief Lee, Shanahan and Walker were still concealed behind crab pots on the dock above the ramp. Will stopped at the top of the ramp, apparently to adjust his eyes to the light. After seeing two flashes to his right, he fired his pistol in that direction. Shanahan and Walker fired back, wounding Will at least five times. Will returned their fire at least twice. Thinking that Will was reaching for his pistol, Walker fired another shot after Will had fallen to the ground. Will was charged with assault in the third degree on Trooper Shanahan, a charge to which he pleaded nolo contendere (guilty but mentally impaired).\\nClaiming damages for battery, negligence, and violations of his constitutional rights, Will sued the State of Alaska (state), the City of Hoonah (city), and the three law enforcement officers involved in the shooting. The trial court entered judgment on the jury's special verdict against all the defendants, awarding Will $2,240,-000.00 plus interest. The trial court denied defendants' motions for judgment notwithstanding the verdict, judgment consistent with the verdict, new trial, and remittitur. The remaining appellants challenge the denial of these motions as well as the trial court's earlier denial of their motion for summary judgment.\\nII. STANDARD OF REVIEW\\nThe following standards of review apply to the issues raised by appellants. Under Civil Rule 56(c), summary judgment may be granted only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Southeast Alaska Constr. Co. v. State, Dep't of Transp., 791 P.2d 339, 342 (Alaska 1990). In reviewing denial of motions for a directed verdict or judgment notwithstanding the verdict, this court must determine whether the evidence, when viewed in the light most favorable to the non-moving party, is such that reasonable persons could not differ in their judgment as to the facts. Mullen v. Christiansen, 642 P.2d 1345, 1348 (Alaska 1982). This court must affirm the denial of a motion for a new trial if there is an evidentiary basis for the jury's decision. Id.\\nThe same legal issues underlie each of the appellants' motions. We consider these matters of law de novo and adopt the rules of law which are most persuasive in light of precedent, reason and policy. Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979).\\nIII. DISCUSSION\\nA. LIABILITY OF TROOPER SHANA-HAN.\\nThe jury found that Trooper Shana-han was justified in firing at Will and that he had not committed assault or battery. The jury also found that he was not negligent. The trial court, however, determined that as a matter of law Trooper Shanahan is liable for the negligence of the city and Chief Lee under a theory of \\\"acting in concert.\\\" We disagree with the trial court's conclusion and hold that Trooper Shanahan is not liable to Will for the damages Will suffered in the shoot-out.\\nWe have stated that \\\"[o]ne who acts in concert with others to plan or assist in the commission of a tort is liable as a tort-feasor.\\\" Williams v. Alyeska Pipeline Serv. Co., 650 P.2d 343, 348 (Alaska 1982). In Williams we held an individual defendant liable for the battery inflicted on the plaintiff by others, even though he personally only threatened the plaintiff. The purpose underlying the \\\"acting in concert\\\" theory of liability is to hold all individuals engaged in a joint enterprise with a tor-tious purpose accountable for the harm any member of the enterprise may inflict. W. Prosser, The Law of Torts \\u00a7 46, at 322-23 (5th ed. 1984).\\nOur holding in Williams is inapplicable to this case. Williams involved the commission of collective intentional torts, yet in this case the trial court held Trooper Shanahan liable for the negligence of the city and Chief Lee. An individual who acts with reasonable care cannot be deemed negligent simply because those with whom he cooperates act negligently. Restatement (Second) of Torts \\u00a7 876 comment c (1979). Law enforcement officers frequently must act jointly to accomplish their duties. The mere fact that two or more officers may cooperate to apprehend an individual does not make all of the participating officers liable for the negligence of one. The Second Restatement of Torts provides the following illustration of this principle:\\nA is drunk and disorderly on the public street. B, C and D, who are all police officers, attempt to arrest A for the misdemeanor committed in their presence. A resists arrest. B and C take hold of A, using no more force than is reasonable under the circumstances. A breaks away and attempts to escape. D draws a pistol and shoots A in the back. B and C are not liable to A for the shooting.\\nRestatement (Second) of Torts \\u00a7 876 comment c, illustration 3 (1979). See also Day v. Walton, 199 Tenn. 10, 281 S.W.2d 685, 689-90 (1955) (\\\"where there is no joint negligence, no encouragement to do the particular act, no unlawful common enterprise or objective, then there is no joint liability for an unlawful act committed by one of several parties\\\") (emphasis in original).\\nIn this case, the jury found that Trooper Shanahan was not negligent. He responded to an emergency call for assistance from the city. The state argues persuasively that holding an innocent participant liable for the negligence of another under an \\\"acting in concert\\\" theory will discourage those capable of helping from providing rescue assistance. We agree.\\nWhether a defendant acted with reasonable care is a question of fact for the jury to determine. The trial court incorrectly relied on the \\\"acting in concert\\\" theory to create negligence where the jury found there was none. Therefore, we conclude that Trooper Shanahan is not liable for Will's injuries.\\nB. LIABILITY OF THE STATE OF ALASKA.\\nThe jury found that the state was negligent, but further that the state's negligence was not the legal cause of Will's injury. We cannot know the basis for the jury's conclusion that the state was negligent. Presumably the jury determined that the state was negligent because of its failure to aid Will after family members notified the troopers of Will's difficulties one day prior to the shooting. Even if an individual is negligent, that person is not liable at common law for another's injuries unless the negligence is a legal (i.e., proximate) cause of those injuries. Alvey v. Pioneer Oilfield Serv., Inc., 648 P.2d 599, 600 (Alaska 1982). Since the jury found that the state's negligence did not legally cause Will's injuries, the state is not directly liable to Will for its own negligence.\\nThe trial court, however, concluded that the state is vicariously liable to Will because of Trooper Shanahan's participation in the events prior to the shooting. Under the theory of respondeat superior, an employer is liable for the negligence of an employee as long as that employee is acting within the scope of his or her employment. Williams, 650 P.2d at 349. As discussed in the preceding section, the trial court incorrectly held that Trooper Shana-han was negligent because of his participation in the conflict with Will. Since Trooper Shanahan is not negligent, no basis exists for finding the state liable for Will's injuries.\\nIV. CONCLUSION\\nBecause we conclude that the trial court incorrectly applied the \\\"acting in concert\\\" theory, the trial court's judgment against Trooper Shanahan and the State of Alaska is REVERSED and the case REMANDED with instructions to enter judgment in their favor consistent with the jury's special verdict.\\n. In an order filed February 8, 1991, we dismissed the appeal of the City of Hoonah, Chief Lee and Officer Walker.\\n. The state and Shanahan do not discuss the remittitur issue in their brief. Therefore, we consider appeal of the trial court's denial of remittitur waived. Weaver v. O'Meara Motor Co., 452 P.2d 87, 93 (Alaska 1969).\\n. \\\"The issue of proximate cause is normally a question of fact for the jury to decide and becomes a matter of law only where reasonable minds could not differ.\\\" Dura Corp. v. Harried, 703 P.2d 396, 406 (Alaska 1985). Here, there is no persuasive reason for us not to accept the jury's finding that the state's negligence was not the legal cause of Will's injuries.\\n. We do not need to address whether either Trooper Shanahan or the state violated Will's constitutional rights since the judgment for Will on the claims under title 42, section 1983 of the United States Code was against the City of Hoo-nah only.\"}"
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+"{\"id\": \"10375240\", \"name\": \"FAIRBANKS NORTH STAR BOROUGH, Appellant, v. STATE of Alaska, Appellee\", \"name_abbreviation\": \"Fairbanks North Star Borough v. State\", \"decision_date\": \"1992-02-28\", \"docket_number\": \"No. S-4345\", \"first_page\": \"760\", \"last_page\": \"765\", \"citations\": \"826 P.2d 760\", \"volume\": \"826\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-11T00:10:33.025144+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.\", \"parties\": \"FAIRBANKS NORTH STAR BOROUGH, Appellant, v. STATE of Alaska, Appellee.\", \"head_matter\": \"FAIRBANKS NORTH STAR BOROUGH, Appellant, v. STATE of Alaska, Appellee.\\nNo. S-4345.\\nSupreme Court of Alaska.\\nFeb. 28, 1992.\\nRehearing Denied March 24, 1992.\\nRonald L. Baird, Bradbury, Bliss & Rior-dan, Anchorage, for appellant.\\nE. John Athens, Jr., Asst. Atty. Gen., Fairbanks, and Charles E. Cole, Atty. Gen., Juneau, for appellee.\\nBefore RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.\", \"word_count\": \"2962\", \"char_count\": \"18442\", \"text\": \"OPINION\\nMOORE, Justice.\\nI. INTRODUCTION\\nThis appeal arises from an action filed by the Fairbanks North Star Borough (FNSB) against the State of Alaska for trespass, inverse condemnation, quiet title, ejectment, and rescission and restitution. The superior court held that, to the extent that FNSB's action turned upon a review of matters that were raised or could have been raised in a prior administrative hearing, the action was barred as an untimely appeal of an administrative determination. The superior court also held that the rescission and restitution claims were barred by the six-year statute of limitations provided by AS 09.10.120, and that res judica-ta barred the appeal. The superior court dismissed the case pursuant to Rule 54(b) of the Alaska Rules of Civil Procedure. FNSB appeals the superior court's decision to dismiss the action. We affirm.\\nII. FACTS AND PROCEEDINGS\\nIn June 1979, FNSB filed an application, pursuant to the municipal land entitlement program, for certain lands designated ADL 400700. In April 1981, the Department of Natural Resources (DNR) approved the selections of those lands. On April 22, 1981, FNSB and the state executed a Cooperative Easement Agreement (CEA) in order to provide a means for the future designation of easements for access to and across lands selected by FNSB as part of the municipal land entitlement program. The CEA provides in paragraph 2:\\nIf access to State . lands is required prior to development . of Borough lands, the State in consultation with the Borough may designate an access easement or easements across the conveyed lands.\\nThe CEA also provides that its terms will be incorporated by reference within all state patents conveying land to FNSB \\\"where access easements appear necessary and have yet to be identified.\\\" In September 1981, DNR issued patent number 5978 which conveyed to FNSB Tracts G and H of ADL 400700, the land at issue in this case. The patent specified that it was issued subject to the CEA.\\nIn August 1984, the Northern Regional Office of DNR stated in a letter to FNSB that it was invoking the CEA to designate an easement over Tracts G and H for the construction of a segment of the South Fairbanks Expressway. By letter dated September 6, 1984, FNSB rejected this proposed easement. In rejecting the invocation of the CEA, FNSB argued that the CEA was inapplicable to the project because the state did not seek a right of way for access, but rather \\\"to facilitate traffic movement itself.\\\" In addition, FNSB claimed that the CEA was inapplicable because it is to be utilized only \\\"where access easements appear necessary and have yet to be identified.\\\" FNSB complained that invocation of the CEA would result in a taking of more than 27 acres of land previously conveyed by the state and charged against FNSB's municipal entitlement.\\nThereafter, pursuant to the procedure provided for in the CEA, the matter was appealed to the Director of the Division of Forest, Land and Water Management of DNR. The Director upheld the decision of the Northern Regional Office of DNR to invoke the CEA to obtain an easement for the South Fairbanks Expressway.\\nIn January 1985, FNSB appealed the Director's decision to the Commissioner of DNR. FNSB again argued that the CEA could not be used to obtain the right-of-way for the South Fairbanks Expressway, claiming that the right-of-way sought by the state was intended to facilitate through traffic, not access to adjacent lands. On May 14, 1985, Commissioner Wunnicke rendered a decision upholding the Director's decision.\\nAlmost a year later, in January 1986, FNSB formally asked Commissioner Wun-nicke to reconsider her decision. In seeking reconsideration, FNSB acknowledged that \\\"[t]he question at hand seems to be one of interpretation of the Cooperative Easement Agreement.\\\" In April 1986, the request to reconsider was denied because it was untimely and presented no new information. FNSB was told that construction of the highway project had already begun.\\nFNSB again sought reconsideration of Commissioner Wunnicke's decision on August 8, 1988, this time before Commissioner Brady, the new Commissioner of DNR. In repeating its arguments for reconsideration, FNSB again acknowledged that the dispute turned on the interpretation of the CEA. Reconsideration was again denied for reasons similar to those previously identified. FNSB did not appeal the decision further.\\nOn February 21, 1990, FNSB filed an action against the state as a result of the state's decision to invoke the CEA to designate an easement on Tracts G and H. FNSB argued that the CEA is unenforceable, void, or voidable because: (1) it is against public policy; (2) it was entered into as a result of unilateral or mutual mistake regarding the applicability of certain Alaska statutes; or (3) FNSB's assent to the CEA was induced by the innocent or negligent misrepresentation of the state regarding the applicability of those statutes. FNSB's complaint set forth four causes of action: trespass and inverse condemnation; quiet title; ejectment; and rescission and restitution. In its quiet title cause of action, FNSB claimed that the state has no interest in Tracts G and H and all other lands subject to the CEA.\\nThe state moved to dismiss this action, arguing that the matters raised in the complaint were administratively adjudicated in 1984 and 1985, and thus barred by Alaska Rule of Appellate Procedure 602(a)(2) as an untimely appeal of an administrative decision. The state also argued that, to the extent FNSB's fourth cause of action for rescission and restitution was not a challenge to agency action, it should be dismissed because AS 09.10.120 imposes a six-year statute of limitations for actions in the name of political subdivisions.\\nFNSB responded to the state's motion to dismiss by arguing that the CEA authorizes DNR to adjudicate only those issues involving the width and location of easements, and that DNR's determinations of issues other than the width and location of easements were therefore not barred by Rule 602(a)(2). FNSB also argued that DNR had no authority under the agreement to determine whether the agreement itself was enforceable, and that DNR's determinations did not bar FNSB's claim that the CEA is unenforceable, void, or voidable. As to the state's claim that the statute of limitations barred the claims for rescission and restitution, FNSB argued that the statute of limitations was inapplicable because the claim was filed within six years of the state's entry on the plot.\\nJudge Saveli held that Rule 602(a)(2) mandates dismissal of those FNSB claims which involve matters that were raised or could have been raised in DNR proceedings. He also held that the agreement between the state and FNSB was valid and that FNSB's rescission and restitution claims were barred by the six-year statute of limitations set forth in AS 09.10.120. He dismissed the complaint with the exception of the claim to quiet title to lands, not contained in Tracts G and H, which the state claims are governed by the CEA. This appeal followed.\\nIII. DISCUSSION\\nAppellate Rule 602(a)(2) provides that an appeal from an administrative agency to the superior court must be taken within 30 days from the date of the administrative decision. However denominated, a claim is functionally an administrative appeal if it requires the court to consider the propriety of an agency determination. Haynes v. State, 746 P.2d 892, 893 (Alaska 1987); Owsichek v. State, 627 P.2d 616, 620 (Alaska 1981); State v. Lundgren Pac. Constr. Co., 603 P.2d 889, 893 (Alaska 1979); Winegardner v. Greater Anchorage Area Borough, 534 P.2d 541, 545 (Alaska 1975).\\nFNSB disagrees with the superior court's conclusion that Appellate Rule 602(a)(2) mandates dismissal of those claims that were raised or could have been raised in the DNR proceedings. FNSB claims that the CEA only authorized DNR to determine the optimal width and location of easements on lands subject to the agreement. DNR did not have authority to decide other issues, FNSB argues, and Rule 602(a)(2) therefore should not apply to those DNR decisions not involving the width and location of easements.\\nFNSB's argument that Rule 602(a)(2) is inapplicable to its suit is unconvincing for two reasons. First, as the superior court concluded, FNSB's argument that the administrative process created by the CEA applies only to the optimal width and location of land subject to the agreement \\\"is without merit.\\\" Paragraph 3 of the Agreement provides:\\nThe width, location and number of easements required shall be determined according to the following criteria....\\nParagraph 6 of the Agreement then provides for administrative resolution of \\\"[a]ny rejections\\\" of the proposed easements of the other party. There is nothing in the CEA to suggest that the term \\\"rejections\\\" in Paragraph 6 refers only to the width and location of proposed easements. On the contrary, the CEA unambiguously envisioned an administrative determination of the width, location, and number of easements.\\nThe second, and more fundamental, problem with FNSB's argument is that FNSB already challenged both the invocation of the CEA and the decisions made pursuant to it during the administrative process. Although FNSB's suit is styled as an independent action advancing different issues than were considered by DNR, the relief sought is essentially the same as that sought before DNR. For example, FNSB explicitly contested the applicability of the CEA during the DNR administrative proceedings, at one point even arguing that the \\\"question\\\" was \\\"one of interpretation of the CEA.\\\" Because FNSB had ample opportunity to advance such objections at the administrative level, and because FNSB alleges no surprise or injustice, Appellate Rule 602(a)(2) applies. Having fully availed itself of the administrative review process afforded by the CEA, FNSB was required to challenge the administrative determination within thirty days of that determination.\\nFNSB attempts to avoid the time limit on administrative appeals by distinguishing each of its present claims from the issues which were, or could have been, considered by DNR. Relying largely upon Owsichek v. State, 627 P.2d 616 (Alaska 1981), FNSB maintains that its claim for inverse condemnation arises under the takings clauses of both the Alaska and United States Con stitutions, and is therefore subject to our statement in Owsichek that \\\"the Alaska Constitution can sometimes serve as the jurisdictional basis for an action that might otherwise be characterized as an appeal from an administrative decision.\\\" Owsichek, 627 P.2d at 620 n. 7. This argument fails. We explained in Owsichek that the Alaska Constitution can serve as such a jurisdictional basis for only certain types of actions:\\nWe held in [Moore v. State, 553 P.2d 8, 29 (Alaska 1976)] that the plaintiffs' action was not barred by the statute of limitations specified in Appellate Rule 45 because the action was independent of the earlier administrative proceedings and was based on article VIII, section 10, of the Alaska Constitution. This section sets forth the due process requirements applicable to the lease or sale of state lands. Our holding in Moore was based in part on the fact that the plaintiffs were not parties to the earlier administrative proceedings and could not have appealed from the agency's decision. 553 P.2d at 29.\\nOwsichek relies upon much broader constitutional provisions and could have appealed from the Guide Board's decision. We therefore conclude that our holding in Moore is inapplicable to this case.\\n627 P.2d at 620 n. 7. Because FNSB relies on a rather broad constitutional provision, and because FNSB was a party to the DNR proceedings and could have appealed from DNR's determinations, FNSB's claim for inverse condemnation should be viewed as an appeal of the administrative determination.\\nThe borough argues in the alternative that, even if inverse condemnation claims based on regulatory takings are subject to the time limit on administrative appeals, its condemnation claim challenges the state's physical invasion of borough lands, and therefore is not subject to the time limit. A permanent physical taking is qualitatively more intrusive than regulatory takings, FNSB claims, and therefore warrants greater protection under the takings clauses. The borough maintains that the state, as the party entering on the land of another and disturbing another's possession, bears the burden of proving a privilege to do so. This argument fails primarily because it is not possible to divorce the state's use of the land from the administrative action. The right-of-way exists only because of the administrative action. FNSB's claim that the state has no legal right to construct the highway on its lands is a direct challenge to the administrative decision, and is therefore impermissible under Lundgren Pacific Construction Co. since it is untimely filed.\\nFNSB next argues that its claims for quiet title and ejectment are independent of any appeal from the administrative pro-c\\u00e9edings because these claims arose from the state's entry on borough land. In reality, these actions are but another attempt by FNSB to do indirectly what it could not do directly. After Lundgren Pacific Construction Co. and its progeny, these actions must be dismissed because they force the court to reconsider the propriety of an agency determination.\\nFNSB claims that its final causes of action, rescission and restitution, are distinguishable from the administrative appeal because DNR had no authority to determine the validity of the CEA itself. The crux of the borough's argument is that the CEA should be rescinded because AS 38.-04.050 and AS 38.04.055, which the CEA explicitly relies upon, specifically pertain to private land and therefore were not intended to have any application to the disposal of lands by the state pursuant to the municipal land entitlement program.\\nFNSB also argues that the CEA is void because it contravenes the public policy reflected in former 29.18.201 et seq. that DNR was to concern itself solely with the external boundaries and not the internal subdivision of lands to be conveyed under the municipal entitlement program. Even if the CEA is not void as a matter of law, the borough claims the CEA should be rescinded because it was entered into as a result of unilateral or mutual mistake regarding the applicability of AS 38.04.050 and AS 38.04.055.\\nWe find it unnecessary to consider whether FNSB's claims for rescission and restitution are barred by Rule 602(a)(2) because those claims are clearly without merit. While municipal entitlement land may not normally be thought of as private land, DNR evidently considered that the land would become private land and, as such, AS 38.04.050 and AS 38.04.055 were applicable. \\\"The construction of a statute by those charged with its administration is entitled to substantial deference.\\\" United States v. Rutherford, 442 U.S. 544, 553, 99 S.Ct. 2470, 2476, 61 L.Ed.2d 68 (1979). More importantly, the CEA indicates that it was not executed solely because of those statutes. The CEA provides:\\nWhereas it is in the best interest of residents of the Fairbanks North Star Borough and State of Alaska that access to public and private lands be appropriate to the need being served;\\nThus, regardless of the applicability of AS 38.04.050 and AS 38.040.055, there exist valid independent purposes for the CEA. Furthermore, contrary to FNSB's arguments, former AS 29.18.201 et seq. do not clearly indicate a legislative intent to reserve to local governments the power to subdivide lands conveyed pursuant to the municipal entitlement program. Because the CEA does not contravene public policy,- and because FNSB and the state were authorized to enter into an agreement of this nature, the CEA is not void.\\nAFFIRMED.\\n. FNSB apparently concedes that the DNR determinations made pursuant to the CEA's dispute resolution provisions are \\\"administrative determinations\\\" for purposes of Rule 602(a)(2). In State v. Lundgren Pacific Construction Co., 603 P.2d 889 (Alaska 1979), we held that where a corporation which had contracted with the Department of Highways appealed a decision made pursuant to the contract's dispute resolution provisions, the appeal was an appeal of an administrative decision. Similarly, in Kollodge v. State, 757 P.2d 1028 (Alaska 1988), this court held that a contractually-created Step IV employee grievance hearing, which was conducted by a hearing officer whose recommendations were acted upon by the Commissioner of Administration, was \\\"agency\\\" action. The DNR determinations made pursuant to the CEA's dispute resolution provisions differ in no material respects from the administrative determinations in Lundgren Pacific Construction Co. and Kollodge.\\n. In Owsichek v. State Guide Licensing, 627 P.2d 616 (Alaska 1981), this court relaxed the time limit on administrative appeals provided by Rule 45, the predecessor of Appellate Rule 602(a)(2), in order to avoid surprise and injustice to the appealing party. Id. at 622. See also State v. Burgess Constr. Co., 575 P.2d 792, 796 (Alaska 1978) (\\\"It is generally held to be incumbent upon the party seeking relaxation of the rules to make a sufficient showing that enforcement of the rule will result in surprise and injustice to that party.\\\"). The Borough does not allege surprise or injustice in the present case.\\n. The CEA provides:\\nWhereas AS 38.04.050 states that \\\"Wherever State land is surveyed for purposes of private use, adequate rights-of-way and easements shall be reserved as necessary for access .\\\" and AS 38.04.055 states that \\\"The director shall reserve easements and rights-of-way on and across land which is made available for private use as necessary to reach or use . public and private land.\\\"; and\\n. Because we hold that the Borough's claims are barred, we find it unnecessary to consider whether res judicata or the statute of limitations bar the Borough's actions.\"}"
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+"{\"id\": \"10380998\", \"name\": \"SEA LION CORPORATION, Appellant, v. AIR LOGISTICS OF ALASKA, INC., et al., Appellees\", \"name_abbreviation\": \"Sea Lion Corp. v. Air Logistics of Alaska, Inc.\", \"decision_date\": \"1990-02-09\", \"docket_number\": \"No. S-2967\", \"first_page\": \"109\", \"last_page\": \"119\", \"citations\": \"787 P.2d 109\", \"volume\": \"787\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T18:20:32.898824+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before MATTHEWS, C.J., and RABINO WITZ, BURKE, COMPTON and MOORE, JJ.\", \"parties\": \"SEA LION CORPORATION, Appellant, v. AIR LOGISTICS OF ALASKA, INC., et al., Appellees.\", \"head_matter\": \"SEA LION CORPORATION, Appellant, v. AIR LOGISTICS OF ALASKA, INC., et al., Appellees.\\nNo. S-2967.\\nSupreme Court of Alaska.\\nFeb. 9, 1990.\\nDavid E. Kohfield, Ronald E. Cummings and William K. Walker, Anchorage, for appellant.\\nKevin G. Clarkson and Clark R. Nichols, Perkins Coie, Anchorage, for appellees.\\nBefore MATTHEWS, C.J., and RABINO WITZ, BURKE, COMPTON and MOORE, JJ.\", \"word_count\": \"5774\", \"char_count\": \"34335\", \"text\": \"COMPTON, Justice.\\nThis appeal is from a grant of summary judgment in favor of Air Logistics of Alaska, Inc. (Air Log). The principal question presented is whether Sea Lion Corporation (Sea Lion) should be held liable on a contract executed between Air Log and an entity referred to in the contract as \\\"Bush Transport Systems\\\" (BTS). We conclude that Sea Lion ratified the contract and therefore affirm.\\nI. FACTUAL AND PROCEDURAL BACKGROUND\\nThe facts, resolving disputes in the evidence in favor of Sea Lion, are as follows. Myron Naneng (Naneng) was at all relevant times the president and chairman of the board of directors of Sea Lion. Between 1982 and October 1984, Larry D. Gillespie (Gillespie) was employed by Sea Lion as a consultant in connection with Sea Lion's operation of an air taxi service. Gillespie also owned and operated his own air cargo service, Air Valley. Sea Lion had financed Gillespie's formation of Air Valley by means of a loan.\\nIn the summer of 1984, Gillespie and Sea Lion began discussions with a view toward merging their operations in the air transport business. Contemplated was the eventual formation of a limited partnership with Gillespie as the general partner and Sea Lion, inter alia, as a limited partner. The limited partnership was to take the name of BTS, then being used by Gillespie as a d/b/a of his own flight service. Around the same time, Air Log, which owned cargo aircraft, decided to shut down a portion of its Alaska operations and send surplus aircraft to the \\\"lower 48.\\\"\\nGillespie, hoping to use Air Log's planes in connection with BTS operations, approached Air Log and asked what it would take for Air Log not to shut down its Alaska operations. Air Log replied that BTS would need to pay all expenses which would result from maintaining the operation. Gillespie then represented to Air Log that \\\"Sea Lion had the financial depth to make this agreement work.\\\"\\nA second meeting was held between representatives of Air Log, Gillespie, and two officers of Sea Lion, Naneng and James Joseph (Joseph). Joseph was at all relevant times the secretary/treasurer of Sea Lion, its general manager and a member of its board. Air Log made clear to both Naneng and Joseph that there would be no deal between itself and BTS unless \\\"Sea Lion signed the contract and agreed to back up\\\" the obligations of BTS.\\nOn October 1, 1984, Gillespie and Nan-eng met with Air Log in order to execute a flight service agreement (FSA) whereby BTS would obtain aircraft and services from Air Log. The 1984 FSA consisted of a five page Agreement for Flight Service (Agreement) containing the bulk of the substantive elements of the contract, and two \\\"Side Letters.\\\" All three items were presented to Gillespie and Naneng as a single document. The FSA expired by its terms on December 31, 1984. The Agreement was signed under the name of BTS \\\"by\\\" Gillespie and Naneng, without reference to Sea Lion. The accompanying Side Letters contained supplementary and clean up terms to the Agreement.\\nThe signature block of the first Side Letter is identical to that of the Agreement. The second Side Letter notes that its purpose \\\"is to explain, clarify, define or expand the intent\\\" of the FSA. It contains arbitration, choice of law, and force majeur clauses. Furthermore, it contains an \\\"identification\\\" clause, which states \\\"... given the prudent requirement to maintain nondisclosure of the identities of the principals, let it now be revealed that the participants of Bush Transport System are: Sea Lion Corporation, P.0. Box 44, Hooper Bay, AK 99604,\\\" inter alia. The second Side Letter was signed BTS \\\"by\\\" Gillespie and \\\"by\\\" \\\"Myron Naneng, Sea Lion Corporation.\\\" There is no evidence to suggest that Naneng signed in any capacity other than as a purported Sea. Lion representative, and both Joseph, testifying as the designated representative of Sea Lion and Naneng admit that he acted in this capacity. Naneng signed the 1984 FSA on the heels of a repeated insistence by Air Log that Sea Lion sign the FSA or there would be no deal and the planes would be removed from Alaska.\\nFollowing the execution of the 1984 FSA, both Joseph and Ronald Cummings, counsel for Sea Lion, learned what Naneng had done. Cummings told Joseph that Naneng had signed a document that \\\"put us in a bad position later on.\\\" When Joseph saw the 1984 FSA for himself, he told Naneng \\\"Oh,_, please don't sign it,\\\" but by then Naneng already had. (Expletive deleted). The reason for Joseph's concern was his realization that the 1984 FSA obligated Sea Lion, \\\"to deliver services that . we're not supposed to deliver.\\\" Cummings then drafted a \\\"Memorandum of Understanding.\\\" In the memo, Naneng, on behalf of Sea Lion, and Gillespie agreed inter se that Naneng's signature was not intended to obligate Sea Lion on the 1984 FSA, but was merely for \\\"security purposes only.\\\" Air Log never saw this memo nor learned of its terms or its existence.\\nOn October 28 Sea Lion's board met. The result of the meeting was inconclusive. The major question was \\\"whether Sea Lion would participate in the BTS venture with Air Valley.\\\" A $75,000 \\\"advance\\\" was made to Gillespie. The advance was \\\"considered a loan with interest unless the board of Sea Lion decides to enter into a partnership.\\\" The loan was evidenced by a promissory note. Gillespie, who was present at the meeting, told the board \\\"an additional $75,000 would be required for November, thus requiring an up front $150,000 to buy into the partnership.\\\"\\nOn November 9 the Sea Lion board met again. The full board \\\"voted in favor of becoming a member of BTS as a limited partner.\\\" The board authorized another $81,000 advance to Gillespie, also evidenced by a promissory note. Sea Lion's audited 1984 financial statement stated that in January 1985 Sea Lion Corporation \\\"entered into a limited partnership\\\" with Gillespie. A March 1985 entry in BTS' books ascribes $156,000 of \\\"partner's equity\\\" to Sea Lion as of date. Joseph testified, however, that the Sea Lion board never authorized participation as a general partner in BTS.\\nOn December 31, 1984, the 1984 FSA expired. Gerald Skipton (Skipton), a CPA employed by Sea Lion, met with Gillespie and representatives of Air Log to discuss the execution of a new FSA for 1985. Gillespie told Air Log at this meeting that Sea Lion \\\"wasn't going to be a general partner; they were going to be a limited partner.\\\" Air Log repeated its position that there would be no dealings with BTS unless Sea Lion signed a FSA and was financially liable. Skipton laughed and told Air Log to try and \\\"talk them (Sea Lion) into it and get the board to vote that way.\\\"\\nIn April Gillespie and Naneng met with Air Log to execute the 1985 FSA. The 1985 FSA is virtually identical to the 1984 FSA. It consists of a nine-page Agreement for Flight Service, and two 2-page \\\"Side Letters.\\\" All documents were again presented in a single package and executed seriatim. The second Side Letter of the 1985 FSA is indistinguishable from the second Side Letter of the 1984 FSA. It notes that its purpose \\\"is to explain, clarify, define or expand the intent\\\" of the main body. It contains arbitration, choice of law, and force majeur clauses. Furthermore, it contains an \\\"identification\\\" clause, which states \\\"... given the prudent requirement to maintain non-disclosure of the identities of the principals, let it now be revealed that the participants of Bush Transport System are: Sea Lion Corporation, P.O. Box 44, Hooper Bay, AK 99604,\\\" inter alios.\\nWhen confronted with the second Side Letter, Gillespie objected on the grounds that there was no valid reason for Naneng to sign the FSA, because Sea Lion was not going to be a general partner in BTS. Air Log was unmoved and repeated its position that if Sea Lion did not sign the FSA, there would be no deal. Naneng then signed the FSA. He did so to keep the planes in the state and avoid having Air Log withdraw from the deal, \\\"the same [reason] we (Sea Lion) signed . the first one.\\\"\\nAs with the 1984 FSA, the Agreement and the first Side Letter were signed BTS \\\"by\\\" Gillespie and \\\"by\\\" Naneng, without reference to Sea Lion. The second Side Letter was signed BTS \\\"by\\\" Gillespie and \\\"by\\\" \\\"Myron Naneng, Sea Lion Corporation.\\\"\\nAs with the 1984 FSA, Naneng showed Joseph the 1985 FSA, bearing Naneng's signature, shortly after its execution. Joseph again realized that Naneng's signature exposed Sea Lion to the risk of liability and told Naneng \\\"Myron, come on, you shouldn't have signed this.\\\" Testifying as the designated representative of Sea Lion, Joseph also admitted that the corporation knew of Naneng's act and its repercus sions. This admission was repeated at oral argument.\\nOn May 26, 1985, a formal limited partnership agreement was finally executed between Gillespie and Sea Lion. Sea Lion concedes that it and Gillespie were not limited partners until this agreement was executed, contending they were merely creditor and debtor. This limited partnership agreement was never shown nor its terms made known to Air Log until litigation. No statutory certificate of limited partnership was filed until July 26, 1985.\\nBTS eventually fell substantially behind on payments due for services rendered under the 1985 FSA. Along with Sea Lion individually, BTS and Gillespie were sued for moneys owing and other claims by Air Log.\\nThe superior court granted summary judgment in favor of Air Log on the issue of liability. Sea Lion was found liable as a matter of law on five grounds: 1) being a direct signatory to the contract, 2) defective execution of the limited partnership agreement between Sea Lion and Gillespie, 3) excessive participation in the affairs of the partnership, 4) partnership by estoppel and 5) joint venturer by estoppel. We find it necessary only to address the direct signatory theory.\\nII. DISCUSSION\\nTHE SUPERIOR COURT DID NOT ERR IN GRANTING SUMMARY JUDGMENT TO AIR LOG ON THE GROUND THAT SEA LION WAS A DIRECT SIGNATORY TO THE 1985 FSA.\\nA. Sea Lion cannot raise its arguments that (1) the 1985 FSA and its \\\"Side Letters\\\" ought not to be construed as one contract, and (2) there was no \\\"mutual assent\\\" between Sea Lion and Air Log on appeal.\\nSea Lion contends that there are material questions of fact regarding 1) which documents ought to be considered part of the 1985 FSA to determine whether Sea Lion signed it or not, 2) the presence of mutual assent between Sea Lion and Air Log, and 3) Naneng's actual or apparent authority to bind Sea Lion to the 1985 FSA. Air Log contends that these issues were not raised in the superior court and ought not to receive appellate review. In the alternative, Air Log contends that there are no material questions of fact as to these issues. Sea Lion, in turn, argues that the issues either were explicitly raised, or ought to be entertained anyway, relying on State v. Northwestern Construction, Inc., 741 P.2d 235 (Alaska 1987).\\nArguments are considered on appeal if raised explicitly in the superior court, or if the issue is \\\"1) not dependent on any new or controverted facts; 2) closely related to the appellant's trial court arguments; and 3) could have been gleaned from the pleadings,\\\" or if failure to address the issue would propagate \\\"plain error.\\\" Northwestern Construction, Inc., 741 P.2d at 239.\\nOur review of the record reveals that Sea Lion raised only the agency argument before the superior court. Sea Lion suggests that the integration and assent arguments \\\"could be gleaned\\\" from no more than the text of the 1985 FSA itself and its answer, generally denying liability on the 1985 FSA. This court will not glean new theories on appeal from nothing more than a general denial. Cf. Smith v. Sellar, 371 P.2d 809, 810 (Alaska 1962). Any theory at all could be gleaned from a general denial.\\nThis court has entertained otherwise improper arguments if to refuse would constitute plain error. Northwestern Construction, 741 P.2d at 239. Plain error exists if it appears that an obvious mistake \\\"has been made which creates a high likelihood that injustice has resulted.\\\" Miller v. Sears, 636 P.2d 1183, 1189 (Alaska 1981).\\nOur refusal to consider these issues does not propagate plain error. No obvious mistake has been made. There is a paucity of either evidence or argument directed toward either issue appearing in the record.\\nFurthermore, assuming arguendo that Sea Lion has raised either issue, its positions have little merit. Where two or more contractual documents are executed substantially simultaneously and are clearly interrelated, they must be construed as the whole contract, as a rule of construction. E.g., Kroblin Refrigerated XPress, Inc. v. Pitterich, 805 F.2d 96, 107-08 (3rd Cir.1986) (applying Pennsylvania law); Deer Creek, Inc. v. Clarendon Hot Springs Ranch, Inc., 107 Idaho 286, 688 P.2d 1191, 1200 (Ct.App.1984); Atlas Corp. v. Clovis Nat'l. Bank, 737 P.2d 225, 229 (Utah 1987).\\nIt is undisputed that the 1985 Agreement was executed simultaneously with the second Side Letter. Naneng signed the second Side Letter, purportedly in his corporate capacity. The second Side Letter makes express reference to the rest of the contract, noting that its \\\"purpose\\\" is to \\\"explain, clarify, define, or expand the intent of certain terms and conditions of Agreement for Flight Services.\\\" The documents are thus expressly interrelated. The Side Letter also contains substantive contract terms, including choice of law, force majeur, and arbitration clauses. These clauses are not merely declaratory but create substantive rights and duties. If, as Sea Lion argues, the second Side Letter was merely declaratory, these clauses would be unnecessary. Naneng signed this document on Sea Lion's behalf. Furthermore, Joseph, testifying on behalf of Sea Lion in his deposition, understood that Naneng's acts in connection with the 1985 and the analogous 1984 FSAs amounted to the execution of a contract.\\nThe foregoing suffices as a matter of law to find Naneng at least purported to execute the whole on Sea Lion's behalf, setting aside the issue of scope of authority, It is axiomatic that a party need not sign every page of a contract to be bound to the whole of the contract. E.g., Westinghouse Elec. Corp. v. Nielsons, Inc., 647 F.Supp. 896, 902 (D.Colo.1986); 37 C.J.S. Frauds, Statute of \\u00a7 205 (1955). The superior court's resolution of the issue cannot be seen as plain error.\\nNor did the court commit plain error regarding mutual assent. Mutual assent is an elementary requirement for a binding contract. State v. Fairbanks North Star Borough School Dist., 621 P.2d 1329, 1331 n. 3 (Alaska 1981). It is elementary that mutual assent can be found in the objective meaning of words used. Howarth v. First Nat'l. Bank of Anchorage, 596 P.2d 1164, 1167 (Alaska 1979). \\\"A party cannot rely on its subjective intent to defeat the existence of a contract if its words and actions objectively and reasonably led another to believe a contract had been entered.\\\" Zeman v. Lufthansa German Airlines, 699 P.2d 1274, 1281 (Alaska 1985).\\nNo one contends, unlike in Zeman, that the 1985 FSA, signed by Naneng, was a mere negotiation. A final contract involving someone plainly existed. Naneng signed it, purportedly on behalf of Sea Lion. Furthermore, it is undisputed that Naneng, as Sea Lion's president and chairman, was an agent of Sea Lion. Sea Lion's \\\"mutual assent\\\" argument thus stands revealed as merely another expression of its agency argument: that it should not be held liable on the contract because Naneng exceeded his authority. The irrelevance of the scope of Naneng's authority is addressed infra.\\nSea Lion incidentally argues that the language in the 1985 FSA identifying Sea Lion as a \\\"participant\\\" in BTS is ambiguous. This is irrelevant. Sea Lion does not contend that the part of the 1985 FSA obligating the signatories to pay for services rendered is ambiguous, and Naneng signed on Sea Lion's behalf.\\nB. Sea Lion is liable as a direct signatory to the 1985 FSA upon a theory of \\\"ratification by silence.\\\"\\nAir Log contends in its brief that Sea Lion by its silence ratified Naneng's signature on the 1985 FSA. Sea Lion responds, in essence, that there are material questions of fact for the jury on the issue of ratification. Even though this was not a theory expressly relied upon by the trial court, both parties have briefed the issue. An appellee may defend a judgment on any basis established by the record, whether or not it was relied on by the trial court or even raised before the trial court so long as no new factual determinations are required. Demoski v. New, 737 P.2d 780, 786 (Alaska 1987); Ransom v. Haner, 362 P.2d 282, 285 (Alaska 1961).\\nWhen reviewing a grant of summary judgment, this court must 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 at 1281. All reasonable inferences of fact from proffered materials must be drawn against the moving party (Air Log) and in favor of the non-moving party (Sea Lion). Id. \\\"[I]f the movant establishes prima facie that it is entitled to judgment as a matter of law, the party opposing summary judgment must demonstrate that there exists a genuine issue of material fact to be litigated.\\\" Wassink v. Hawkins, 763 P.2d 971, 973 (Alaska 1988). To grant summary judgment on a direct signatory theory, the superior court must have found 1) either actual or apparent authority as a matter of law, or 2) that despite no actual or apparent authority, Sea Lion should nonetheless be bound as a matter of law.\\nAlaska has in three cases recognized the doctrine of \\\"ratification by silence.\\\" Alaska Continental Bank v. Anchorage Commercial Land Associates, 781 P.2d 562, 565 (Alaska 1989); Bruton v. Automatic Welding & Supply Corp., 513 P.2d 1122, 1126-28 (Alaska 1973); Gaikema v. Bank of Alaska, 8 Alaska 495, 507 (1934). Ratification is an agency doctrine, created by common law courts to deal with a situation where, after a transaction is entered into by a second party purporting to act for a principal, the principal manifests an intent to be bound by the acts of the second party. Bruton, 513 P.2d at 1127. The focus is on what occurred subsequent to the agent's act; the scope of the agent's authority becomes irrelevant. Id. Thus, evidence going to Naneng's authority or lack thereof creates no issue of material fact as to ratification; we assume he lacked authority.\\nIn Bruton, this court outlined two requirements for an otherwise unauthorized act to be ratified by the principal's silence. The first is that the act sought to be ratified, as with any theory of ratification, must be done by someone who held himself out to the third party as an agent for the principal. Id.; see also Pullen v. Dale, 109 F.2d 538, 539 (9th Cir.1940) (applying Alaska law). Naneng's execution of the 1985 FSA clearly satisfies this first requirement.\\nSecond, the principal must then have failed to act in response under circumstances which \\\"according to the ordinary experience and habits of men, one would naturally be expected to speak if he did not consent....\\\" Bruton, 513 P.2d at 1127, quoting Restatement (Second) of Agency \\u00a7 94, comment a (1957). The prior knowledge, or lack thereof, of the principal regarding the likelihood of reliance by the third party on the agent's authority is irrelevant. See Restatement (Second) of Agency \\u00a7 94, comment a (1957). Although ordinarily ratification is a question of fact, silence of the principal effects ratification\\nas a matter of law if the \\\"case is so clear that reasonable men could come to but one conclusion.\\\" Id.; Guaschino v. Eucalyptus, Inc., 3 Haw.App. 632, 658 P.2d 888, 894 (1983). In essence, this standard is the same as the one used for reviewing summary judgments.\\nMoreover, the Restatement notes:\\nA principal's silence is usually more significant if an agent has exceeded his powers in the particular transaction, especially if the agent acted from an excess of zeal. If such an agent reports the matter to the principal at a time or in a manner calculated to call for dissent if the principal were unwilling to affirm, the latter's failure to dissent, if unexplained, furnishes sufficient evidence of affirmance.\\nRestatement (Second) of Agency \\u00a7 94, comment b (1957).\\nCases adopting and interpreting this section of the Restatement have often held that this second requirement is met as to a third party where the principal has actual knowledge of the material facts surrounding a transaction entered into by an agent with some authority to act for the principal and takes no action to repudiate it. Rouse Woodstock, Inc. v. Surety Fed. Sav. & Loan Ass'n, 630 F.Supp. 1004, 1011 (N.D.Ill.1986); Evanston Bank v. Conti-Commodity Services, Inc., 623 F.Supp. 1014, 1034 (N.D.Ill.1985); University Mktg. & Consulting v. Hartford Life & Accident Ins. Co., 413 F.Supp. 1250, 1260 (E.D.Pa.1976). See also Seavey, Ratification by Silence, 103 U.Pa.L.Rev. 30, 33 (1954); Story, Agency 300 (9th ed. 1882). Thus it appears that the Sea Lion board would have to have known of Naneng's execution of the 1985 FSA, and therefore done nothing to repudiate that act, in order for Naneng to have bound the corporation. The knowledge necessary to ratify an unauthorized act must be that of an entity with power to authorize it in the first instance. E.g., Ulloa v. Guam Economic Dev. Auth., 580 F.2d 952, 956 (9th Cir.1978); See-Tee Mining Corp. v. National Sales, Inc., 76 N.M. 677, 417 P.2d 810, 811 (1966); 2 Fletcher Cyc. Corp. \\u00b6 762 (1982). However, when it is the board of directors which must authorize the transaction, the board may ratify by acquiescence and without any formal action. It need not act at a meeting regularly called. Ulloa, 580 F.2d at 956 (quoting Fletcher at \\u00b6 762). See also Bank of Santa Fe v. Honey Boy Haven, Inc., 106 N.M. 584, 746 P.2d 1116, 1119 (1987). The rationale is plain: liability is not predicated upon some act of the board, but upon its failure to act. The lack of evidence that Sea Lion's board did not hear of or discuss Naneng's signature at a formal board meeting is thus not fatal.\\nThe relevant facts, taken in the light most favorable to Sea Lion, show that Naneng was its president and chairman of its Board, with some authority to act on its behalf. Naneng admits that he signed the 1985 FSA on behalf of Sea Lion. Naneng and Joseph, another board member, were both aware that the reason Air Log insisted that Naneng sign the 1985 FSA was to make Sea Lion liable on it, and that Air Log would not have entered the 1985 FSA if he did not. Naneng admits that he signed the contract so that Air Log would not withdraw from negotiations.\\nWhen confronted with the fact that Nan-eng signed the 1985 FSA, Joseph read the document and exclaimed, \\\"Myron, come on, you shouldn't have signed this.\\\" Joseph knew that the document exposed Sea Lion to a risk of liability, having earlier testified that Sea Lion knew in connection with the analogous 1984 FSA that \\\"we had to get out of this contract because we're [Sea Lion] not supposed to be in this kind of contract at all.\\\" More importantly, Joseph, testifying as Sea Lion's designated representative, admitted that Sea Lion knew it. This admission was repeated at oral argument. Joseph also testified that he had \\\"told Myron not to sign, but apparently Gillespie needed the aircraft, so it was\\\" and that \\\"we were forced into this.\\\" \\\"We\\\" obviously refers to Sea Lion. Joseph characterized Air Log's insistence that Naneng sign in his corporate capacity as \\\"blackmail.\\\"\\nDespite being \\\"blackmailed,\\\" and despite its assertion that it was at that time still negotiating with Gillespie for limited liability, Sea Lion said nothing tending to disavow the effect of Naneng's signature to Air Log. The \\\"Memorandum of Under standing\\\" between Sea Lion and Naneng prepared following execution of the 1984 FSA, was not shown or made known to Air Log, at this time despite Sea Lion having been advised by counsel as to the effect of Naneng's signature on the analogous 1984 FSA.\\nThis fact pattern is indistinguishable from the Restatement (Second) of Agency \\u00a7 94, comment b, quoted supra. An admitted agent exceeded his authority in a moment of zeal to avoid the loss of an investment opportunity for his principal. He reported the matter to his principal, who on a previous analogous occasion drafted a secret memo qualifying the effect of his signature. On both occasions the secretary/treasurer of the principal chastised the agent, realizing the risk created. The principal then said nothing to the third party (Air Log) to disavow the agent's signature until it was sued about a year later. This is \\\"sufficient evidence of affirmance\\\" absent an adequate explanation. Restatement (Second) of Agency \\u00a7 94, comment b (1957). There is no adequate explanation on the record. In fact, the obvious explanation for Sea Lion's conduct was concern that disavowal would both jeopardize the deal with Air Log as well as subject its president to individual liability on a large contract.\\nTo summarize: Air Log has shown (1) an agency relationship, (2) actual knowledge of the purportedly unauthorized act by the principal, and (3) no act of subsequent disavowal by Sea Lion communicated to Air Log until litigation arose over a year later. Sea Lion presents no material evidence to the contrary.\\nIII. CONCLUSION\\nThere is no genuine issue of material fact as to ratification by silence under the test of the Restatement (Second) of Agency \\u00a7 94 and Bruton. Secret disavowals of liability do not suffice.\\nAFFIRMED.\\nORDER\\nOn consideration of the petition for rehearing, filed on December 18, 1989,\\nIT IS ORDERED:\\n1. The petition for rehearing is granted.\\n2. Opinion No. 3537, filed by the court in the above matter on December 8,1989, is withdrawn.\\n3. The attached Opinion on Rehearing, No. 3558 is filed on this date in its place.\\nEntered by direction of the court at Anchorage, Alaska on February 9, 1990.\\n. At oral argument, counsel for Sea Lion made the following concession:\\nJUSTICE COMPTON: Okay, and after he (Naneng) signed it, this second letter, in a corporate capacity, authorized or not, the board became apprised of what had happened, is that right?\\nKOHFIELD: Uh,- I'm not .\\nJUSTICE COMPTON: The board learned that he had signed this . this agreement . whatever the agreement was.... The board of Sea Lion Corporation learned that Naneng had signed this, isn't that correct:\\nKOHFIELD: Yes, I believe that's correct.\\nJUSTICE COMPTON: And, then, what did the board do in response to that, to, uh, alert Air Logistics that it was not going to, um, assume any liability for what Mr. Naneng did?\\nKOHFIELD: Well, I guess in one sense I question just how much the board of Sea Lion Corporation has to do to alert Air Log that they have no intention of being liable on the contract....\\n. The superior court also rejected Sea Lion's defense that Air Log should be estopped from treating Sea Lion as anything more than a limited partner, on the grounds that Alaska law does not accept the doctrine of \\\"limited partnership by estoppel.\\\" Sea Lion first contends that despite the fact that it had not filed a certificate of limited partnership pursuant to AS 32.10.020, Air Log should either be estopped or quasi-es-topped from holding Sea Lion liable as anything more than a limited partner.\\nThis court recently reiterated the requirements for both \\\"traditional\\\" and \\\"quasi\\\" estoppel. Dressel v. Weeks, 779 P.2d 324 (Alaska 1989). Traditional estoppel requires the assertion of a position by conduct or word, reasonable reliance thereon by a party, and resulting prejudice. Id. at 329. Quasi-estoppel precludes a party from taking a position inconsistent with one taken previously when circumstances render the assertion of the second position unconscionable. Id.\\nThere is no evidence in the record that Air Log ever accepted Sea Lion's self-characterization as a limited partner or creditor before the 1985 FSA was executed. Rather, the record is clear that Air Log insisted that Sea Lion back up the 1985 FSA regardless of how it characterized itself. Air Log cannot thus be said to have taken the position that Sea Lion was a limited partner; rather, this is an attempt by Sea Lion to ascribe its litigation position to Air Log. We also note that estoppel is an equitable remedy. Equity requires that those who seek it shall have acted fairly and without fraud or deceit as to the controversy in issue. Knaebel v. Heiner, 663 P.2d 551, 554 (Alaska 1983). There exists substantial doubt, given Sea Lion's secret disvowals of Naneng's signature, whether it is entitled to equity.\\nAlternatively, Sea Lion urges us to adopt the rule that where a partnership has been formed, yet no certificate of limited partnership has been filed, creditors dealing with the partnership as a limited partnership other than in good faith are estopped from relying on the lack of filing. E.g., Garrett v. Koepke, 569 S.W.2d 568 (Tex.Civ.App.1978). Although this is the rule under the Revised Uniform Limited Partnership Act, a few courts have adopted the rule judicially in jurisdictions, such as Alaska, still utilizing the old Act. See Revised Unif. Ltd. Partnership Act \\u00a7 304(b), 6 U.L.A. 311 (Supp.1989). We do not reach this issue. Sea Lion concedes it was not a partner of any kind at the time Naneng executed the 1985 FSA and we do not resolve this case on a partnership theory.\\n. Sea Lion's arguments that it should not be held liable summarily on the issues of actual or apparent authority are persuasive, though in the end irrelevant.\\nNaneng acted as an agent of Sea Lion at the 1985 FSA signing. A disclosed principal is subject to liability upon contracts made by an agent acting within his authority. Restatement (Second) of Agency \\u00a7 144 (1958). Authority sufficient to bind a principal can be either actual or apparent. Bruton, 513 P.2d at 1125.\\nAir Log contends as an initial matter that Sea Lion did not raise the question of the scope of Naneng's authority until after summary judgment had been entered. Air Log's contention is without merit. As discussed infra, Sea Lion presented considerable evidence explicitly calling the scope of Naneng's authority into doubt and which was relevant to no other issue, despite not arguing it explicitly until its motion for reconsideration. See Thorstenson v. ARCO Alaska, Inc., 780 P.2d 371, 375 (Alaska 1989).\\nActual authority is created by \\\"written or spoken words or other conduct of the principal which, reasonably interpreted, causes the agent to believe that principal desires him so to act on the principal's account.\\\" Bruton, 513 P.2d at 1125 (quoting Restatement (Second) of Agency \\u00a7 26 (1958)).\\nSummary judgment was improper on an actual authority theory. The reasonableness of Naneng's belief as to what he was authorized to do is at issue here. See Perkins v. Willacy, 431 P.2d 141, 143 (Alaska 1967). The record, drawing all reasonable inferences in favor of Sea Lion, shows that Naneng knew, based on the 1984 Memorandum of Understanding, that he lacked board approval to obligate Sea Lion on contracts in connection with BTS. These allegations raise material questions of fact with regard to the reasonableness of Naneng's beliefs regarding the extent of his authority.\\nApparent authority, by contrast, focuses on the reasonable beliefs of the third party (Air Log).\\nApparent authority to do an act is created as to third persons by written or spoken words or any other conduct of the principal which, reasonably interpreted, causes the third person to believe that the principal consents to have the act done on his behalf by the person purporting to act for him.\\nCity of Delta Junction v. Mack Trucks, Inc., 670 P.2d 1128, 1130 (Alaska 1983) (quoting Restatement (Second) of Agency \\u00a7 27 at 103 (1958)). See also Jackson v. Power, 743 P.2d 1376, 1381 (Alaska 1987).\\nSkipton, Sea Lion's accountant, testified he told Air Log that Sea Lion was unwilling to be bound as a general partner and wanted only limited partner liability. He testified that he informed Air Log that the Sea Lion board would have to approve further action. Furthermore, Gillespie testified that at the actual signing of the 1985 FSA, he also informed Air Log that \\\"Sea Lion Corporation was not a general partner in [BTS] and, therefore, had no responsibility to sign the agreement.\\\" A reasonable trier of fact could come to the conclusion that any belief by Air Log that Naneng had authority to sign the 1985 FSA was unreasonable.\\nSea Lion appears to contend, against the vast weight of authority in Alaska, see, e.g., Bruton; Perkins; City of Delta Junction, that the Restatement view of apparent authority is not the law in Alaska. They cite dictum from one case, State v. Neal & Sons, Inc., 489 P.2d 1016, 1019 (Alaska 1971), to the effect that as a matter of law a third party must either investigate the extent of an agent's authority or deal only at its peril. All subsequent (and prior) Alaska law is to the contrary, utilizing the Restatement view. To the extent the dictum in Neal & Sons, Inc. suggests otherwise, it is expressly disapproved.\\n. There is uncontradicted evidence in the record that a second liability-adjusting memorandum (MOU) was drafted, though the document itself does not appear. As the document would be cumulative evidence of Sea Lion's knowledge of the 1985 FSA, its existence or non-existence is immaterial.\\n. In its reply brief, Sea Lion asks rhetorically, \\\"[H]ow many times must Air Log hear a clear statement regarding Sea Lion's intent not to be bound to BTS obligations?\\\" The answer is \\\"Only once.\\\" However, this \\\"once\\\" must come after its agent signs a contract on its behalf and the principal learns of the act and realizes the risk created, especially when advised by counsel on the matter. Furthermore, the third party must hear it.\"}"
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+"{\"id\": \"10382473\", \"name\": \"STATE of Alaska, Appellant, v. Dennis Ray ANTHONY, James Richard Flake, David Matthew Logue, Richard R. Ecklund, Victor E. Chambers, on behalf of themselves and all other persons who are now or will be similarly situated, Case No. 3PA-88-1009 CI, Leroy K. Smith, Roger M. Pike, Patrick Pletnikoff, Richard D. Nitz, Michael A. Bateman, Robert D. Lozzio, Robert D. Thrall, Case No. 3PA-88-601 CI, Reginald L. Silvernail, Case No. 3KN-88-816 CI, Anthony L. Brown, Case No. 3AN-88-8966 CI, Edward P. Lowry, Case No. 3AN-88-9165 CI, John C. Aspell, Case No. 3AN-88-8987 CI, Richard H. Krantz, Case No. 3AN-88-8986 CI, Sidney R. Hertz, Peter W. Thorsen, Case No. 3AN-88-10971 CI, Terry F. Newell, Case No. 3AN-88-966 CI, Robert G. Klink, Case No. 3KN-88-970 CI, Appellees; STATE of Alaska, DEPARTMENT OF REVENUE, Appellant, v. Richard Carl SNYDER, Appellee\", \"name_abbreviation\": \"State v. Anthony\", \"decision_date\": \"1991-09-13\", \"docket_number\": \"No. S-3650\", \"first_page\": \"1377\", \"last_page\": \"1379\", \"citations\": \"816 P.2d 1377\", \"volume\": \"816\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-11T02:10:32.146809+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.\", \"parties\": \"STATE of Alaska, Appellant, v. Dennis Ray ANTHONY, James Richard Flake, David Matthew Logue, Richard R. Ecklund, Victor E. Chambers, on behalf of themselves and all other persons who are now or will be similarly situated, Case No. 3PA-88-1009 CI, Leroy K. Smith, Roger M. Pike, Patrick Pletnikoff, Richard D. Nitz, Michael A. Bateman, Robert D. Lozzio, Robert D. Thrall, Case No. 3PA-88-601 CI, Reginald L. Silvernail, Case No. 3KN-88-816 CI, Anthony L. Brown, Case No. 3AN-88-8966 CI, Edward P. Lowry, Case No. 3AN-88-9165 CI, John C. Aspell, Case No. 3AN-88-8987 CI, Richard H. Krantz, Case No. 3AN-88-8986 CI, Sidney R. Hertz, Peter W. Thorsen, Case No. 3AN-88-10971 CI, Terry F. Newell, Case No. 3AN-88-966 CI, Robert G. Klink, Case No. 3KN-88-970 CI, Appellees. STATE of Alaska, DEPARTMENT OF REVENUE, Appellant, v. Richard Carl SNYDER, Appellee.\", \"head_matter\": \"STATE of Alaska, Appellant, v. Dennis Ray ANTHONY, James Richard Flake, David Matthew Logue, Richard R. Ecklund, Victor E. Chambers, on behalf of themselves and all other persons who are now or will be similarly situated, Case No. 3PA-88-1009 CI, Leroy K. Smith, Roger M. Pike, Patrick Pletnikoff, Richard D. Nitz, Michael A. Bateman, Robert D. Lozzio, Robert D. Thrall, Case No. 3PA-88-601 CI, Reginald L. Silvernail, Case No. 3KN-88-816 CI, Anthony L. Brown, Case No. 3AN-88-8966 CI, Edward P. Lowry, Case No. 3AN-88-9165 CI, John C. Aspell, Case No. 3AN-88-8987 CI, Richard H. Krantz, Case No. 3AN-88-8986 CI, Sidney R. Hertz, Peter W. Thorsen, Case No. 3AN-88-10971 CI, Terry F. Newell, Case No. 3AN-88-966 CI, Robert G. Klink, Case No. 3KN-88-970 CI, Appellees. STATE of Alaska, DEPARTMENT OF REVENUE, Appellant, v. Richard Carl SNYDER, Appellee.\\nNo. S-3650.\\nSupreme Court of Alaska.\\nSept. 13, 1991.\\nMarilyn May, Asst. Atty. Gen., Anchorage, Jeffrey W. Bush, Asst. Atty. Gen., and Douglas B. Baily, Atty. Gen., Juneau, for appellant.\\nPete Ehrhardt, Robinson, Beiswenger & Ehrhardt, Soldotna, for appellees Anthony, Silvernail, Newell and Klink.\\nEdward P. Lowry, Sidney R. Hertz, Anthony L. Brown, and Leroy K. Smith, appel-lees pro se, Palmer.\\nBefore RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.\", \"word_count\": \"1586\", \"char_count\": \"9603\", \"text\": \"OPINION ON REHEARING\\nCOMPTON, Justice.\\nIn State v. Anthony, 810 P.2d 155 (Alaska 1991), we concluded that AS 43.23.-005(d), which makes incarcerated felons ineligible for permanent fund dividends, does not violate the equal protection clause of the Alaska Constitution or the United States Constitution. We did not address whether the statute violates the ex post facto clause of either constitution and therefore grant the appellees' petitions for rehearing to resolve this issue.\\nThe United States Supreme Court has summarized the characteristics of an ex post facto law as follows:\\n[A]ny statute which punishes as a crime an act previously committed, which was innocent when done; which makes more burdensome the punishment for a crime, after its commission; or which deprives one charged with a crime of any defense available according to law at the time when the act was committed, is prohibited as ex post facto.\\nDobbert v. Florida, 432 U.S. 282, 292, 97 S.Ct. 2290, 2298, 53 L.Ed.2d 344 (1977) (quoting Beazell v. Ohio, 269 U.S. 167, 169-70, 46 S.Ct. 68, 68, 70 L.Ed. 216 (1925)). The first and the third characteristics clearly do not apply to this case. The inmates do not challenge the validity of their convictions. Alaska Statute 43.23.-005(d) does not alter the definition of any crime nor affect any criminal defenses. The inmates simply argue that by declaring them ineligible for permanent fund dividends they were previously entitled to receive, the statute increases the punishment for their crimes after the commission of these crimes.\\nThe mere fact that AS 43.23.005(d) alters a convicted felon's circumstances to his or her disadvantage does not in itself invalidate the statute as ex post facto. See, e.g., Flemming v. Nestor, 363 U.S. 603, 613-14, 80 S.Ct. 1367, 1374, 4 L.Ed.2d 1435 (1960) (dismissed ex post facto challenge to statute terminating social security retirement benefits of deported aliens); De Veau v. Braisted, 363 U.S. 144, 160, 80 S.Ct. 1146, 1154, 4 L.Ed.2d 1109 (1960) (upheld New York statute prohibiting solicitation of waterfront employees by labor organization if any officer or agent of such organization had been convicted of a felony); Jones v. Heckler, 774 F.2d 997 (10th Cir.1985) (upheld statute denying social security benefits to felons during pc 'id of incarceration); Auditor Gen v. Olezniczak, 4 N.W.2d 679, 680-81 942) (upheld prison reimbursement act imposing civil liability on all prisoners able to pay for their maintenance); Golden v. Okfuskee County Election Bd., 723 P.2d 982 (Okla.1986) (upheld law forbidding persons who have entered guilty pleas to certain offenses from holding public office).\\nThe United States Supreme Court has held that a statute enacted for valid regulatory purposes rather than simply to punish individuals for their past conduct does not violate the ex post facto clause. De Veau, 363 U.S. at 160, 80 S.Ct. at 1154. As we noted in our original opinion, the articulated purpose of AS 43.23.005(d) is to obtain funds for crime victims. In addition, we noted that the parties did not dispute at trial that a purpose of the statute is to reimburse the state for the cost of confinement. It is significant that a person convicted of a felony who is not sentenced to incarceration is not made ineligible for a permanent fund dividend. Since the purpose of the statute is compensatory rather than punitive, we conclude that it does not violate the ex post facto clause of either the United States or the Alaska Constitution.\\nUnlike the statutes at issue in most of the cases relied on by the inmates, AS 43.23.005(d) does not change the criminal justice system itself in any way. The statute's effect is similar to that of the statute upheld in Dobbert:\\nThe crime for which the present defendant was indicted, the punishment prescribed therefor, and the quantity or the degree of proof necessary to establish his guilt, all remained unaffected by the subsequent statute.\\n432 U.S. at 294, 97 S.Ct. at 2298-99 (quoting Hopt v. Utah, 110 U.S. 574, 589-90, 4 S.Ct. 202, 210, 28 L.Ed. 262 (1884)). The statute does not remove the possibility of probation as in People v. Wells, 138 Mich. App. 450, 360 N.W.2d 219 (1984); increase the period of probation that can be required as in Arizona v. Mendivil, 121 Ariz. 600, 592 P.2d 1256 (1979), and People v. Moon, 125 Mich.App. 773, 337 N.W.2d 293 (1983); eliminate an advantageous sentencing option as in Lindsey v. Washington, 301 U.S. 397, 57 S.Ct. 797, 81 L.Ed. 1182 (1937), and United States v. Romero, 596 F.Supp. 446, 449 (D.N.M.1984); or impose community service as in Doyle v. Florida, 513 So.2d 188, 190 (Fla.Dist.Ct.App.1987).\\nThe inmates also rely on cases in which courts held applications of statutes imposing additional costs on criminals to those whose crimes were committed prior to the effective date of the statutes violated constitutional prohibitions against ex post fac-to laws. See Yost v. Florida, 489 So.2d 131 (Fla.Dist.Ct.App.1986) (imposition of court costs of $200, in addition to other fines and costs, when any person is convicted of a felony), aff'd, 507 So.2d 1099 (Fla. 1987); Illinois v. Timmons, 114 Ill.App.3d 861, 70 Ill.Dec. 762, 768, 449 N.E.2d 1366, 1372 (1983) (imposition in sentencing of $60 surcharge, in addition to fine and costs, for most criminal or traffic offenses); Loomer v. Wyoming, 768 P.2d 1042, 1049 (Wyo. 1989) (costs of prosecution \\\"may be added to and made a part of the sentence\\\" in any felony or misdemeanor case).\\nUnlike AS 43.23.005(d), the statutes at issue in these cases all affected the sentence of the criminal defendants involved. In Yost, for example, the statute provided that no \\\"gain time\\\" could accrue on a sentence until all fees and court costs were paid and that indigents be sentenced to a term of community service in lieu of paying costs. 489 So.2d at 132. The statute in Timmons explicitly labeled the surcharge at issue as a \\\"penalty assessment.\\\" 449 N.E.2d at 1372, 70 Ill.Dec. at 768. In Loomer the statute provided that the additional costs be \\\"added to and made a part of the sentence.\\\" 768 P.2d at 1049.\\nIn the absence of any evidence that the intent or effect of AS 43.23.005(d) is punitive, we conclude that the application of the statute to felons convicted of crimes committed prior to the statute's effective date is not ex post facto.\\n. The parties agree that the ex post facto prohibition of the Alaska Constitution is the same as that of the United States Constitution. The United States Constitution provides that \\\"[n]o state shall . pass any bill of attainder, ex post facto law or law impairing the obligation of contracts_\\\" Art. I, \\u00a7 10. The Alaska Constitution provides that \\\"[n]o bill of attainder or ex post facto law shall be passed.\\\" Art. I, \\u00a7 15. We have previously found no reason to construe our state ex post facto prohibition differently from the federal provision. State v. Creekpaum, 753 P.2d 1139, 1143 (Alaska 1988); Banks v. State, 619 P.2d 720, 722 (Alaska 1980).\\n. The inmates rely on United States v. MacDonald, 607 F.Supp. 1183 (E.D.N.C.1985), in which the court held that a federal statute requiring forfeiture of any proceeds received by a criminal defendant for selling the story of his or her crimes was ex post facto as applied to a criminal defendant convicted of crimes committed prior to passage of the statute. Although legislative history indicated that one of the purposes of the act was to compensate crime victims, the court found that the government's goal was to prevent wrongdoers from profiting from their crimes. Id. at 1186.\\nThe inmates offered no evidence that AS 43.-23.005(d) had a similar punitive intent. If the legislature simply intended to take the dividends from incarcerated felons for the purpose of paying a higher dividend to the rest of the state's residents, then ex post facto problems might arise.\\n. On appeal, the Florida Supreme Court emphasized the significance of the penalty provisions. Following the lower court's decision, the statute was amended to delete the penalty provisions for failure to pay the fees and costs. The supreme court noted that \\\"[r]espondent concedes that the statute, as amended, does not violate the ex post facto clause.\\\" Florida v. Yost, 507 So.2d 1099, 1101 (Fla.1987).\"}"
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+"{\"id\": \"10387527\", \"name\": \"Rodney G. SULLIVAN, Appellant, v. STATE of Alaska, Appellee\", \"name_abbreviation\": \"Sullivan v. State\", \"decision_date\": \"1988-12-23\", \"docket_number\": \"No. A-2229\", \"first_page\": \"51\", \"last_page\": \"58\", \"citations\": \"766 P.2d 51\", \"volume\": \"766\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Court of Appeals\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T20:37:21.779389+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before BRYNER, C.J., and COATS and SINGLETON, JJ.\", \"parties\": \"Rodney G. SULLIVAN, Appellant, v. STATE of Alaska, Appellee.\", \"head_matter\": \"Rodney G. SULLIVAN, Appellant, v. STATE of Alaska, Appellee.\\nNo. A-2229.\\nCourt of Appeals of Alaska.\\nDec. 23, 1988.\\nJeffrey F. Sauer, Asst. Public Defender, Sitka, and Dana Fabe, Public Defender, Anchorage, for appellant.\\nRobert D. Bacon, Asst. Atty. Gen., Office of Special Prosecutions and Appeals, Anchorage, and Grace Berg Schaible, Atty. Gen., Juneau, for appellee.\\nBefore BRYNER, C.J., and COATS and SINGLETON, JJ.\", \"word_count\": \"4311\", \"char_count\": \"26024\", \"text\": \"OPINION\\nBRYNER, Chief Judge.\\nRodney G. Sullivan was convicted, after a bench trial, of attempted sexual abuse of a minor in the second degree, a class C felony. AS 11.41.436(a)(2). Superior Court Judge Thomas E. Schulz sentenced Sullivan, a first felony offender, to a term of five years with one year suspended. On appeal, we vacated Sullivan's conviction, finding that the trial court had relied on an erroneous interpretation of the second-degree sexual abuse statute. We remanded the case for determination of two issues: first, whether Sullivan was guilty of attempted sexual abuse in the second degree under another theory; and, second, whether Sullivan was guilty of any lesser-included offenses.\\nOn remand, Judge Schulz again found Sullivan guilty of attempted sexual abuse in the second degree. He alternatively found that the evidence supported conviction of Sullivan for contributing to the delinquency of a minor, a class A misdemean- or, AS 11.51.130, as a lesser-included offense.\\nSullivan again appeals, challenging his conviction for attempted sexual abuse and challenging the lesser-included offense finding. Sullivan also challenges his sentence as excessive. We conclude that there was insufficient evidence to convict Sullivan of attempted sexual abuse, but affirm Sullivan's conviction of contributing to the delinquency of a minor. Our disposition renders it unnecessary to consider Sullivan's sentencing argument.\\nFACTS\\nIn September of 1984, Sullivan was staying in Ketchikan at the house of a friend, who had asked Sullivan to help keep an eye on her three children while she was on vacation for two weeks. During this period, various neighborhood children had been given permission to enter the house and to play with the family dog.\\nOne day while several children were at the house, Sullivan approached D.T., an eight-year-old girl, and offered to \\\"give [her] some money if [she] would be his girlfriend.\\\" She replied, \\\"No.\\\" That same day, Sullivan gave D.T. and another girl, K.W., a note. According to D.T., the note read: \\\"Will you be my girlfriend? Will you kiss me? Will you take off your clothes? Will you get another girlfriend for me?\\\" The note also included boxes for \\\"yes\\\" and \\\"no\\\" responses. Sullivan paid D.T.'s seven-year-old brother, J.T., two dollars to deliver the note. At some point during that day, Sullivan locked J.T. into a room because, according to J.T., Sullivan \\\"wanted to tell [D.T.] a nasty letter.\\\" Sullivan also told J.T. that he wanted to invite D.T. \\\"and a whole bunch of other people\\\" to a party, and that \\\"the only parties he had is bad parties\\\" with girls. D.T. received at least ten or twelve other notes from Sullivan while she was at his house that day. She did not remember what the other notes said.\\nK.W. remembered that D.T. read her a note that Sullivan had given them. The note asked, \\\"Do you want to be my girlfriend?\\\" and stated, \\\"I'll give you a thousand dollars if you do.\\\" K.W. also remembered that Sullivan asked the girls if they would take off their clothes in front of him.\\nH.T., a nine-year-old girl, was also at Sullivan's house with D.T., K.W., and J.T. She read the note Sullivan gave to D.T. and K.W. H.T. recalled the four questions that D.T. described, although she added that there was a fifth question, which she could not recall. H.T. heard Sullivan ask K.W. and D.T. to take off their clothes \\\"a lot of times.\\\" She recalled that Sullivan showed the children pictures of \\\"naked ladies\\\" in Playboy magazine and that he gave the three girls \\\"tests\\\" with such questions as, \\\"Will you go to bed with me?\\\" and, \\\"Will you marry me?\\\"\\nOn a later day, D.T. received another note from Sullivan, this time delivered to her by J.T. at home. The note said that if D.T. agreed to answer \\\"a lot of questions, [Sullivan] would have a party.\\\" D.T. destroyed the note.\\nD.T. subsequently reported the notes to her mother, who notified the Ketchikan police. During police questioning, Sullivan acknowledged the incidents and attempted to reconstruct his original note to D.T. The reconstructed note read:\\nI really like you a lot. I would be proud to have you as my girlfriend. So I'm going to ask you some questions. Will you go with me? Will you kiss me? Will you let me feel private parts of your body? Will you take off all of your clothes in front of me? And will you let me kiss the private parts of your body? I really hope you do some of these thing in the questions.\\nSullivan was subsequently indicted on one count of attempted sexual abuse in the second degree. The indictment charged:\\nThat on or about September, 1984, at or near Ketchikan . RODNEY G. SULLIVAN, being 16 years of age or older, did unlawfully and intentionally attempt to engage in sexual contact with a person under the age of 13, to-wit: by giving a note to D.T., [Date of Birth]: 11 \\u2014 11\\u2014 75....\\nSUFFICIENCY OF EVIDENCE TO SHOW ATTEMPTED SEXUAL ABUSE OF A MINOR IN THE SECOND DEGREE\\nSullivan argues that there is insufficient evidence to support his conviction for attempted sexual abuse. On review, this court must view the evidence and the inferences to be drawn from it in the light most favorable to the state and must affirm unless fair-minded jurors would necessarily agree that the state failed to carry its burden of proof beyond a reasonable doubt. Abdulbaqui v. State, 728 P.2d 1211, 1214 (Alaska App.1986).\\nAlaska Statute 11.31.100(a) sets out the elements of an attempt:\\n[A] person is guilty of an attempt to commit a crime if, with intent to commit a crime, the person engages in conduct which constitutes a substantial step toward the commission of that crime.\\nIn order to constitute a \\\"substantial step,\\\" conduct must go beyond mere preparation. Gargan v. State, 436 P.2d 968, 971 (Alaska 1968). Whether an act is merely preparatory or is \\\"sufficiently close to the consummation of the crime to amount to attempt, is a question of degree and depends upon the facts and circumstances of a particular case.\\\" Braham v. State, 571 P.2d 631, 637 (Alaska 1977), cert. denied, 436 U.S. 910, 98 S.Ct. 2246, 56 L.Ed.2d 410 (1978).\\nUnder AS 11.41.436(a),\\n[a]n offender commits the crime of sexual abuse of a minor in the second degree if\\n(2) being 16 years of age or older, the offender engages in sexual contact with a person who is under 13 years of age....\\nSexual contact is defined as \\\"knowingly touching, directly or through clothing, the victim's genitals, anus, or female breast.\\\" AS 11.81.900(b)(52)(A).\\nSullivan claims that the state failed to produce evidence that he had taken a \\\"substantial step\\\" toward having sexual contact with a minor. Sullivan advances two arguments in support of his claim: 1) that his conduct amounted to no more than solicitation, and therefore cannot constitute a \\\"substantial step;\\\" and, 2) that the acts he solicited from D.T. would not have amounted to sexual contact under AS 11.81.-900(b)(52)(A).\\nIn Braham v. State, the Alaska Supreme Court established that solicitation is merely preparatory conduct and is therefore insufficient to constitute a \\\"substantial step.\\\" 571 P.2d at 637, 638 n. 10. Braham solicited an acquaintance to kill a third party for $600. Braham instructed his acquaintance to visit the intended victim at the hospital and deliver a fictitious message to him. The acquaintance did so; shortly thereafter, he abandoned the murder plans and became a police informant. Braham was convicted of attempted murder. On appeal, he challenged the sufficiency of the evidence to support his conviction.\\nThe issue before the supreme court was whether Braham had committed an attempt or whether his acts amounted to a mere solicitation. The court reasoned that the purpose of the hospital visit by Braham's acquaintance was to \\\"establish a relationship of trust and confidence\\\" with the victim in order to facilitate the commission of the offense. Id. at 638. The court concluded that the hospital visit was \\\"a direct, unequivocal 'act toward the commission of the crime' of murder\\\" within the meaning of the attempt statute and that the evidence was therefore sufficient to support a guilty verdict on the attempt charge. Id. at 638.\\nThe circumstances of the present case are distinguishable from the facts in Bra-ham in two respects: 1) there was no agreement between Sullivan and another person to commit a crime, and 2) Sullivan did not engage in any activity toward completion of his crime after he solicited the commission of an offense by delivering a note to D.T. These distinctions are significant. At the very least, Braham requires that a solicitation be met with agreement and that there be some further act beyond agreement. The line dividing preparation from attempt falls between the agreement to commit a crime and the subsequent act in furtherance of it. By contrast, in the present case, all of Sullivan's acts occurred prior to, and in preparation for, the solicitation. There was no act beyond solicitation.\\nThe state nevertheless argues that Sullivan's acts, when viewed together, constitute a substantial step toward engaging in sexual contact with D.T. However, according to the state's own account, Sullivan engaged in these acts in preparation for the solicitation itself. For example, at trial the state claimed that Sullivan had written his notes in test format, in order to convince the children that \\\"what he was doing was good\\\" so that they would want to \\\"pass [the] test.\\\" Likewise, the state argued at trial that Sullivan showed the children pictures of naked women \\\"so that they would be in the mood where he could have sexual contact with them once he persuaded them to get their clothes off.\\\" Although these acts may support an inference that Sullivan had a plan to seduce young girls, they amount to no more than preparatory conduct under Braham. The fact that Sullivan took steps to ensure that his solicitation would be successful does not convert the solicitation into a substantial step.\\nThe state also relies on the Model Penal Code in support of its position. Alaska's attempt statute was based in part on Model Penal Code Part 1, Art. 5 \\u00a7 5.01 (1985), which requires that a person,\\nacting with the kind of culpability otherwise required for commission of the crime\\npurposely does or omits to do anything that . is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.\\nThe Model Penal Code lists actions that constitute a substantial step, including \\\"enticing or seeking to entice the contemplated victim of the crime to go to the place contemplated for its commission\\\" and \\\"solicit ing an innocent agent to engage in conduct constituting an element of the crime.\\\" Model Penal Code Part 1, Art. 5 \\u00a7 5.01(2)(b), (g) (1985). This list is quoted in its entirety in the Alaska Criminal Code Revision, Part 2 at 73-74 (Tent. Draft 1977).\\nThe state suggests that Sullivan's conduct amounted to \\\"enticing or seeking to entice\\\" D.T. However, the trial court specifically found that Sullivan never sought to entice D.T. to a place where he could molest her. Instead, the evidence shows that Sullivan solicited D.T. when she went to Sullivan's house voluntarily to look after his roommate's dog. The explanatory note to Model Penal Code \\u00a7 5.01 distinguishes enticement into a vehicle or building from \\\"merely solicitpng] cooperation in a sexual act,\\\" as occurred in this case. Cf., State v. McJunkin, 27 Or.App. 401, 556 P.2d 164 (1976) (a defendant who sought to entice a nine-year-old girl into his pickup truck and expressed his desire to have sexual intercourse with her was properly convicted of attempted first-degree rape).\\nThe \\\"innocent agent\\\" provision of the Model Penal Code is likewise inapplicable. This provision is meant to apply when the defendant commits \\\"the last guilty act\\\" by soliciting the commission of a criminal act by a person who is unaware that the solicited act is a crime. See R. Perkins and R. Boyce, Criminal Law 652-53 (3d ed. 1982). By contrast, in the present case, Sullivan would have had to perform further \\\"guilty acts\\\" beyond the solicitation to succeed in having sexual contact with D.T.\\nOther states that have considered whether soliciting a child to have sexual contact is enough to establish attempted sexual abuse have reached disparate conclusions. Compare People v. LaFontaine, 79 Cal.App.3d 176, 144 Cal.Rptr. 729 (1978) with State v. Fristoe, 135 Ariz. 25, 658 P.2d 825 (Ariz.Ct.App.1982); State v. McJunkin, 27 Or.App. 401, 556 P.2d 164 (1976); and State v. Graham, 70 Or.App. 589, 689 P.2d 1315 (1984), review denied, 298 Or. 597, 695 P.2d 50 (1985).\\nIn a case with facts similar to the present case, People v. LaFontaine, supra, a California appellate court held that mere verbal solicitation of a sexual act did not amount to an attempt to commit a \\\"lewd or lascivious act\\\" upon the body of a child. The defendant, LaFontaine, picked up a thirteen-year-old hitchhiker and offered to give him money if he allowed LaFontaine to give him \\\"a blow job.\\\" La-Fontaine never touched or attempted to touch the child, who refused and got out of the car. The court held that LaFontaine's act of solicitation was mere preparation and, as such, was not an \\\"unequivocal act\\\" necessary for an attempt. 144 Cal.Rptr. at 733.\\nAppellate courts in both Arizona and Oregon have indicated that a verbal solicitation may be a \\\"substantial step.\\\" In State v. Fristoe, supra, the defendant contended that he should have been charged with solicitation rather than attempt. In three separate incidents, Fristoe had pulled up in his truck beside girls age fifteen or younger and offered them five dollars to \\\"kiss between their legs.\\\" When the girls refused, Fristoe drove away. During one of the incidents, Fristoe returned after the initial refusal and raised the offer to twenty dollars. In none of the incidents did Fristoe make any further motion toward the girls. Id. 658 P.2d at 829. The trial court convicted Fristoe on four counts of attempted oral sexual contact with minors.\\nThe appellate court affirmed, concluding that \\\"words can constitute a 'step' \\\" under the attempt statute and that, given the \\\"total picture,\\\" an attempt had been committed. In rejecting Fristoe's argument that a solicitation cannot be an attempt, the court distinguished between situations in which the defendant solicits a third party to commit a crime and situations in which the defendant himself intends to be the perpetrator. According to the court, in the first situation there is a solicitation but no attempt; in the second, there is an attempt but no solicitation. Because Fristoe had not attempted to persuade the girls to commit a crime but had solicited them in order that he might commit a crime himself, the court concluded that he was guilty of attempt rather than solicitation. Id. at 831. Accord State v. Graham, 70 Or.App. 589, 689 P.2d 1315 (1984), review denied, 298 Or. 597, 695 P.2d 50 (1985).\\nWe reject the distinction drawn by the Arizona court in Fristoe. As the California Court of Appeals noted in LaFontaine\\nWe see no logic or reason to carve out of the general principles . an exception that certain acts of solicitation, which otherwise constitute preparation only, should be considered as going beyond preparation to constitute the offense of an attempt, because of the type of crime being solicited. The fact that the person solicited is needed for the consummation of the offense cannot logically or reasonably change the character of a defendant's acts from mere preparation to an unequivocal act to commit the ultimate offense or to constitute some fragment of the crime which is alleged to have been attempted.\\n144 CaLRptr. at 733 (emphasis in original).\\nDrawing all inferences in favor of the state in the present case, the evidence presented at trial establishes only that Sullivan engaged in preparatory conduct and not that he took a substantial step toward sexual contact with D.T. We therefore reverse Sullivan's conviction of attempted sexual abuse of a minor in the second degree.\\nCONTRIBUTING TO THE DELINQUENCY OF A MINOR AS A LESSER-INCLUDED OFFENSE\\nOn remand, the trial court concluded that even if the evidence did not establish attempted sexual abuse, Sullivan was guilty of contributing to the delinquency of a minor, a crime that the court found to be a lesser-included offense of attempted sexual abuse under the circumstances of the present case. Sullivan challenges the trial court's finding.\\nAn offense is a lesser-included offense of the charged offense when it is impossible to commit the charged offense without committing the lesser offense and when conviction of the greater offense requires the jury to find a disputed fact that is not required for conviction of the lesser. Abdulbaqui v. State, 728 P.2d 1211, 1214 (Alaska App.1986). Under the cognate approach, the focus is on the facts charged in the indictment and the evidence presented at trial rather than on the statutory elements of the greater and lesser offenses. Elisovsky v. State, 592 P.2d 1221, 1226 (Alaska 1979); State v. Minano, 710 P.2d 1013, 1016 (Alaska 1985).\\nAlaska Statute 11.51.130(a)(1) provides that a person contributes to the delinquency of a minor if that person \\\"aids, induces, causes, or encourages a child under 18 years of age to do any act prohibited by state law.\\\" The indictment charged that Sullivan attempted to engage in sexual contact with D.T. by giving her a note. Evidence was presented to show that, by means of the note, Sullivan encouraged D.T. to engage in sexual contact with him. Even if Sullivan did not commit an act qualifying as an attempt, under AS 11.51.-130, his encouragement of D.T. to have sexual contact with him would amount to contributing to the delinquency of a minor if an act of sexual contact by D.T. could be deemed \\\"an act prohibited by state law.\\\" Whether or not contributing to the delinquency of a minor (contributing) is a lesser-included offense of attempted sexual assault of a minor in the second degree thus depends on how the phrase \\\"to do any act prohibited by state law\\\" is construed.\\nSullivan argues that contributing can never be a lesser-included offense of attempted sexual abuse because under the statute defining sexual abuse, only the adult is guilty of an offense when sexual contact occurs between an adult and a child, whereas under the contributing statute the adult must encourage the child to violate the law. According to Sullivan, since D.T. herself would not have violated the law if Sullivan had succeeded in having sexual contact with her, Sullivan did not encourage D.T. to violate the law. In response, the state urges this court to construe the phrase \\\"to do any act prohibited by state law\\\" to include acts that violate laws enacted for the protection of minors, even when the minor could not be prosecuted for the act.\\nThe state's interpretation of AS 11.51.130 is consistent with the statutory history of the provision. When a statute is adopted from another jurisdiction, the settled interpretation of the statute by that state's highest court at the time of its adoption is presumed to be adopted as well. Zerbe v. State, 583 P.2d 845, 846 (Alaska 1978). Alaska Statute 11.51.130(a)(1), as amended in 1980, was adopted from the corresponding Arkansas statute. The commentary to that statute provides, in relevant part:\\n[Sjubsection (l)(a) . is directed at the adult who encourages the minor to engage in conduct prohibited by law. Such conduct includes not only violation of criminal statutes but also contravention of statutes designed to protect minors, whether or not they define an offense. For example, . Ark.Stat.Ann. \\u00a7 41-2468 to 41-2470 prohibits the tattooing of minors without the parents' consent, although the minor commits no offense by obtaining a tattoo. However, if an adult induced a minor to submit to being tattooed by a third party, the adult would be guilty of contributing to the minor's delinquency.\\nArk.Stat.Ann. \\u00a7 41-2406 commentary (1977) (emphasis added). Under this interpretation, Sullivan, by encouraging D.T. to have sexual contact with him, encouraged D.T. to engage in conduct prohibited by law.\\nThe state's interpretation is also consistent with the purpose of the Alaska contributing statute. In applying Alaska's former contributing statute, the Alaska Supreme Court held that its purpose was to protect children under the age of eighteen. Anderson v. State, 384 P.2d 669, 671 (Alaska 1963); Hanby v. State, 479 P.2d 486, 498 (Alaska 1970). Although the statute was substantially amended in 1978, the legislative history indicates that the intent of the amendments was to eliminate problems of vagueness, and not to change the statute's overall purpose. See Alaska Criminal Code Revision Part 2 at 67-68 (Tent. Draft 1977). The state's interpretation of AS 11.-51.130 would promote the statute's goal of protecting minors without creating any incidental problems of vagueness. Applying this interpretation, we find that the trial court properly treated the crime of contrib uting to the delinquency of a minor as a lesser-included offense.\\nWhile there was insufficient evidence to support Sullivan's conviction for attempted sexual abuse of a minor, there was ample evidence to support his conviction for contributing to the delinquency of a minor. Evidence was admitted at trial that Sullivan wrote notes to D.T. telling her he \\\"really hope[d]\\\" that she would let him \\\"feel her private parts.\\\" A reasonable person could conclude that by writing this note, Sullivan was encouraging D.T. to engage in sexual contact with him, an act prohibited by state law. We therefore affirm Sullivan's conviction for contributing to the delinquency of a minor.\\nThe judgment of conviction for sexual assault in the second degree is VACATED. This case is REMANDED for imposition of sentence and entry of judgment on the lesser offense of contributing to the delinquency of a minor.\\n. The attempt statute then in effect imposed criminal liability on \\\"[any] person who attempts to commit a crime, and in the attempt does any act toward the commission of the crime, but fails, or is prevented or intercepted in the perpetration of the crime .\\\" Former AS 11.05.020 (repealed, ch. 166 \\u00a7 21 SLA 1978) (emphasis added).\\n. Psychiatric testimony was also presented below indicating that, in soliciting D.T., Sullivan almost reached the point at which he was no longer capable of restraining himself from engaging in an act of molestation. The state relies on this evidence to support its assertion that Sullivan's conviction was proper. The psychiatric evidence, however, while highly probative on the issue of Sullivan's intent, does nothing to establish that he committed an act beyond setting the stage by solicitation of his intended victim.\\n. Under the California statute,\\nAny person who shall willfully and lewdly commit any lewd or lascivious act . upon or with the body, or any part or member thereof, of a child under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of such person or of such child, shall be guilty of a felony....\\nCal.Penal Code \\u00a7 288(a) (West 1988).\\n. The Arizona attempt statute imposes attempt liability when defendant has performed \\\"any step in a course of conduct planned to culminate in commission of an offense.\\\" Ariz.Rev. Stat.Ann. \\u00a7 13-1001(A)(2) (1978) (emphasis added). On its face, this appears to be a less stringent requirement than the \\\"substantial step\\\" re quired in Alaska. However, the court in Fristoe concluded that the \\\"any step\\\" requirement was identical to the \\\"substantial step\\\" requirement used in other states, and emphasized that it does not impose liability for mere preparatory conduct. 658 P.2d at 830.\\n. Although Sullivan's conduct did not qualify as an attempt, it seems to us that his solicitation of D.T. may well have constituted a violation of AS 11.31.110(a), which provides:\\nA person commits the crime of solicitation if, with intent to cause another to engage in conduct constituting a crime, the person solicits the other to engage in that conduct.\\nAlaska Statute 11.31.110(b)(1)(B) expressly provides that, in a prosecution for solicitation, it is not a defense \\\"that a person whom the defendant solicits could not be guilty of the crime that is the object of the solicitation.\\\" Under AS 11.31.110(c)(3), soliciting a person to commit the offense of sexual abuse of a child in the second degree would, like attempt, be punishable as a class C felony. While it is conceivable that Sullivan could have been convicted of solicitation, the state did not charge him under AS 11.31.110. The trial court, applying the cognate approach, concluded that solicitation was not a lesser-included offense of attempt. The state has not challenged the court's conclusion, and, on appeal, neither party has addressed the applicability of Alaska's solicitation statute. Under these circumstances, we do not decide the issue.\\n. The presumption is not conclusive, but is rather a rule of statutory construction based on convenience. Zerbe, 583 P.2d at 847.\\n. Our reversal of Sullivan's conviction for attempted sexual abuse of a minor requires the sentence imposed for that offense to be vacated. Accordingly, we need not consider Sullivan's contention that his sentence is excessive. On remand, the superior court will be required to resentence Sullivan on the lesser-included offense of contributing to the delinquency of a minor. Sullivan will, of course, have the right to appeal the sentence imposed for that offense.\"}"
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+"{\"id\": \"10394708\", \"name\": \"Leonard D. COX, Appellant, v. Viveca Yvette COX, Appellee\", \"name_abbreviation\": \"Cox v. Cox\", \"decision_date\": \"1989-06-30\", \"docket_number\": \"No. S-2727\", \"first_page\": \"1045\", \"last_page\": \"1049\", \"citations\": \"776 P.2d 1045\", \"volume\": \"776\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T21:14:16.016675+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before MATTHEWS, C.J., and RABINO WITZ, BURKE, COMPTON and MOORE, JJ.\", \"parties\": \"Leonard D. COX, Appellant, v. Viveca Yvette COX, Appellee.\", \"head_matter\": \"Leonard D. COX, Appellant, v. Viveca Yvette COX, Appellee.\\nNo. S-2727.\\nSupreme Court of Alaska.\\nJune 30, 1989.\\nAs Amended June 30, 1989.\\nErnest Z. Rehbock, Rehbock & Rehbock, Anchorage, for appellant.\\nBefore MATTHEWS, C.J., and RABINO WITZ, BURKE, COMPTON and MOORE, JJ.\", \"word_count\": \"2642\", \"char_count\": \"16392\", \"text\": \"OPINION\\nMATTHEWS, Chief Justice.\\nIn this divorce case the parties entered into a child support agreement which provided:\\n[The] father shall pay reasonable child support to mother for the care of the minor child. At the present time father is disabled and receiving term disability income. Therefore the parents agree that the sum of $350.00 per month shall be a reasonable support and that such support shall continue for a period of one year from the date of this agreement. Thereafter support shall be 20% of Mr. Cox's then monthly income available for support as calculated in accordance with Alaska Rules of Civil Procedure 90.3. For the purposes of determining these support obligations from time to time father shall provide an affidavit one year from the date of this agreement setting forth his then present income for the purposes of calculation of such sup-port_ If upon furnishing the affidavit of income provided for herein, an adjustment of support from the present level appears appropriate, such support shall be adjusted on an annual basis one month following the furnishing of such affidavit and the so adjusted amount shall continue in force and effect for pending the furnishing of further updated income information by affidavit.\\nThe parties presented the substance of this agreement to Master Andrew Brown during an October 1987 hearing. Following testimony that Leonard received $2,400 a month in worker's compensation payments, Master Brown questioned the proposed $350 per month child support award. He noted that under Civil Rule 90.3(a)(2)(A) Leonard should pay $480 (20% of $2,400). Master Brown indicated, however, that he would recommend that the superior court grant the divorce and approve the child support agreement after receiving Child Support Guidelines Affidavits from each party justifying the lesser child support amount.\\nYvette filed an affidavit with the court which stated that her previous twelve months' adjusted income was $24,885.91. Leonard's affidavit indicated that he had received a monthly permanent partial disability annuity of $2,401 since February 1987 which would expire at the end of 1988. He further stated that it was his \\\"understanding\\\" that the annuity payments represented compensation for loss of future earning capacity and did not represent present income or disability income. Therefore, Leonard concluded, the annuity was non-taxable and not to be considered as income available for child support.\\nOn February 10, 1988 Master Brown filed his report. He concluded that Civil Rule 90.3(a)(1) requires the court to take into account \\\"the parents' total income from all sources,\\\" including workers' compensation benefits. (Emphasis in original). Master Brown also rejected the Coxes' plan of annual modification of child support as judicially and administratively burdensome and contrary to the purpose of Civil Rule 90.3. He concluded, instead, that if there is a future change in financial conditions either party can seek adjustment of the support award under Curley v. Curley, 588 P.2d 289 (Alaska 1979). He recommended that the superior court ignore the Coxes' child support agreement and order Leonard to pay $480.20 per month in child support beginning March 1, 1988.\\nLeonard filed an objection to Master Brown's Report. After considering Leonard's arguments, the trial court approved the Master's Report and ordered Leonard to pay $480.20 per month in child support. Leonard appeals the court's child support award.\\nLeonard raises two points on appeal: (1) that the court erred in refusing to approve the initial child support agreement of $350 per month for the first year and (2) that the court abused its discretion in requiring Leonard to pay $480.20 per month after the first year of the agreement.\\nAlaska Civil Rule 90.3 provides in relevant part:\\n(a) Guidelines. A child support award in a case in which one parent is awarded sole or primary physical custody will be calculated as an amount equal to the adjusted annual income of the non-custodial parent multiplied by a percentage specified in subparagraph (a)(2).\\n(2) The percentage by which the noncustodial parent's adjusted income must be multiplied in order to calculate the child support award is:\\n(A) 20% (.20) for one child;\\n(c) Exceptions.\\n(1) The court may vary the child support award as calculated under paragraph (a) . for cause. The court must specify in writing the reason for the variation. Good cause may include a finding:\\n(A) that unusual circumstances, such as especially large family size, significant income of a child, health or other extraordinary expenses, or unusually low expenses, exist which require variation of the award in order to award an amount of support which is just and proper for the parties to contribute to ward the nurture and education of their children. The court shall consider the custodial parent's income in this determination; or\\n(B) a finding that the parent with the child support obligation has an adjusted income which is below the poverty level as set forth in the Federal Register. However, a parent who would be required to pay child support pursuant to paragraph (a) or (b) must be ordered to pay a minimum child support amount of no less than $40.00 per month except as provided in subparagraphs (a)(3) and (b)(4).\\nLeonard's first argument is that voluntary agreements for child support should be approved even though they provide for child support payments lower than those called for under Civil Rule 90.3, absent a finding that the agreement would be contrary to the best interests of the child. As support for this argument he relies on Ma-lekos v. Yin, 655 P.2d 728 (Alaska 1982). There we held that parents could by oral agreement waive court-ordered child support so long as doing so was not deleterious to the child:\\nWe adopt the rule that a custodial parent may waive child support payments established by a prior decree, and that such a waiver precludes the recovery of arrearages absent a finding of detriment to the child. Parents bear both a statutory and moral obligation to support their child until emancipation or majority. This obligation is not extinguished by divorce. Viewed in this light, child support obligations imposed by a divorce decree allocate the burden of the parents' joint responsibility to provide their child with adequate support. While parents may not by waiver or otherwise eviscerate their child's right to adequate parental support, we see no compelling policy considerations to refuse to enforce a custodial parent's waiver of child support from a noncustodial parent, providing that such agreements are executed without fraud or duress, and providing that enforcement is not deleterious to the child.\\nId. at 730-731 (citations omitted).\\nMalekos, however, was decided before we adopted Civil Rule 90.3. The rule is designed to apply to all awards of child support, whether agreed to by the parties or contested. The following history of the rule makes this clear.\\nThe rule is a product of the Federal Child Support Enforcement Amendments of 1984. Under these amendments, Congress required each state to establish guidelines to assist in determining the amount of child support awards. Congress' goal in requiring the guidelines was to assure that child support awards, which generally are inadequate, would reflect a realistic assessment of both the child's needs and the parents' ability to pay. S.Rep. No. 387, 98th Cong., at 40, reprinted in 1984 U.S.Code Cong. & Admin.News 2397, 2436. The guidelines also provide a means whereby courts may provide greater consistency and predictability in awarding child support. S. Goldfarb, Child Support Guidelines: A Model for Fair Allocation of Child Care, Medical and Educational Expenses, XXI Fam. L.Q. 325, 326 (1987).\\nIn response to the federal mandate, the Governor of Alaska appointed a thirteen-member commission on child support en forcement whose findings and recommendations became the basis for Rule 90.3. Their report, the Report of the Child Support Enforcement Commission to the Honorable Governor William J. Sheffield, dated October 1, 1985, recommended the development of a presumptive use formula for judicial and administrative establishment and modification of support orders. Id. at III \\u2014 2. The report emphasized that the \\\"methods for setting support orders must be uniform and apply to all cases, except where special circumstances prevail.\\\" Id. at V-l. Concerning private child support agreements the commission stated:\\nCourts should inquire into the background of child support agreements if the order seems incommensurate with the facts (one measure being if it is lower than the guideline amount). This concept is hardly new; parent agreements on child support have always been subject to court approval and modification.\\nId. at VII-15.\\nThe Commission noted that \\\"[t]he amount of child support ordered in many cases is insufficient to raise children not only because inadequate support was ordered initially, but because the value of support diminishes over time from changes in the cost of living and inflation.\\\" Id. at III \\u2014 10. Moreover, the Commission recognized that many parents do not fully appreciate the costs associated with raising children:\\nSince the most significant expenditures on children are commingled with expenditures for the total household in such categories as food, housing, and transportation, many of the normal costs of children are hidden from judges and parents alike.\\nId. at VI-1.\\nIn short, the guidelines reflect a paternalistic view toward child support agreements which conflicts with the freedom of contract attitude exemplified by Malekos. The guidelines' view reflects the congressional findings that child support is often set at inadequate levels and the Commission's conclusion that many parents underestimate actual child support costs. We therefore conclude that the decision in Ma-lekos has been superceded by Rule 90.3. Parents may not make a child support agreement which is not subject to the rule.\\nFurther, we conclude that the court did not err in refusing to depart from the guidelines. The presumption imposed by the rule is that the guidelines are applicable and may be departed from only for good cause. We do not mean to suggest that the court could not have found good cause in the present case based on actual expenses, Yvette's income, and the nature of the income received by Leonard. We conclude, however, that the court was not required to find that good cause existed merely because the parties had reached an agreement.\\nWe are aware of only two cases from other jurisdictions which address this issue in the context of the new federally-mandated child support guidelines. Peerenboom v. Peerenboom, 147 Wis.2d 547, 433 N.W.2d 282, 285 (1988); Ching v. Ching, 751 P.2d 93, 96 (Haw.App.1988). Both cases conclude that an agreement between the parties as to child support is not an exceptional circumstance justifying deviations from the guidelines, where the agreement requires support less than that called for by the guidelines. We agree with these holdings.\\nLeonard's second argument is that the court abused its discretion in setting child support after the one year specified in the parties' agreement at $480 per month, rather than at 20% of Leonard's then monthly income.\\nWe find no abuse of discretion. First, the trial court's reluctance to express child support as a percentage of monthly income rather than a fixed sum seems soundly based. The regulations issued by the Federal Office of Child Support Enforcement pursuant to the Federal Child Support Enforcement Amendments of 1984 require that state guidelines \\\"be based on specific, descriptive and numeric criteria and result in a computation of the support obligation.\\\" 45 CFR \\u00a7 302.56(c) (1987). Second, it would be an obvious burden on the state child support enforcement agency to recalculate the amount of the child support due based on each month's varying income figures. As a practical matter it may be that the best that can be done is to make a prediction of annual income for the foreseeable future and enter a specific award based upon that prediction, with the understanding that the award is subject to prospective modification.\\nThe judgment is AFFIRMED.\\n. Leonard argued: (1) that parties should be allowed to alter Rule 90.3 by contract; (2) that workers' compensation benefits are not \\\"income\\\" under Rule 90.3; (3) that under the circumstances of this case, Rule 90.3 should have been varied; (4) that the yearly variance agreed to by the parties was reasonable; and (5) that a court cannot approve only part of a particular contract.\\n. Justices Rabinowitz and Matthews dissented from the majority's conclusion. 655 P.2d at 733-35.\\n. Civil Rule 90.3 was adopted effective August 1, 1987.\\n. Pub.L. No. 98-378, \\u00a7 18(a), 98 Stat. 1321 (1984) (codified at 42 U.S.C. \\u00a7 667 (Supp.1987)) (amending Title IV-D of the Social Security Act).\\n. In 1985, the average court-ordered child support award was only $2,390 per year, or $199 per month. Bureau of the Census, U.S. Dep't of Commerce, Child Support and Alimony: 1985, Current Population Reports, Special Studies, Series P-23, No. 152 at 1 (1987). This figure represents approximately one-fourth of the amount spent on children in a middle income household, and the resulting standard of living is only 80% of the poverty level. See C. Brack-ney, Battling Inconsistency and Inadequacy: Child Support Guidelines in the States, 11 Harv. Women's LJ. 197, 199 (1988).\\n. The legislature in 1984 enacted AS 47.23.065, which provides:\\n(a) A custodian of a child, including a custodial parent, owes a duty to that child to ensure that child support is paid by a noncustodial parent who is obligated to pay it. An agreement to waive past or future child support, made between an obligor and a person who is entitled to receive support on behalf of an obligee, is not enforceable unless\\n(1) the agreement is put in writing at the time the agreement is made; and\\n(2) the agreement is signed at the time it is made by both the obligor and the person acting for the obligee.\\n(b) When the right to receive child support has been assigned to a governmental entity, an agreement under (a) of this section that has not been adopted as an administrative order of the agency is not effective during a period when the obligee is receiving public assistance under AS 47.25.310-47.25.420.\\n(c) In a separation, dissolution, or divorce proceeding, a court may not accept a waiver of support by a custodial parent without proof that the custodial parent can support the needs of the child adequately.\\nThis statute was enacted after Malekos was decided, but before promulgation of Civil Rule 90.3. One purpose of the statute is evidently to limit this court's holding in Malekos by requiring signed, written agreements waiving child support, as well as a judicial finding that the custodial parent can support the needs of the child adequately. While it is reasonably arguable that the legislature in enacting this statute intended a positive declaration that signed, written waivers of child support would be effective where the custodial parent could support the needs of the child adequately, we do not so interpret the statute. The legislative findings accompanying the enactment, ch. 144, \\u00a7 1, Temporary and Special Acts and Resolutions of 1984, speak of enhancing the efforts of those who are seeking to enforce the payment of child support obligations, the hardship experienced by children and families who must rely on support from a non-custodial parent, and the cost that must be borne by the general public because of inadequate support from non-custodial parents. No mention is made of the benefits which might flow from allowing parents to enter into agreements waiving child support. Thus, the mere fact that an agreement may comply with this statute does not mean that it is free from the operation and effect of Rule 90.3. Our holding that parties cannot by contract evade the operation of Rule 90.3 therefore does not conflict with this statute.\"}"
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+"{\"id\": \"10400484\", \"name\": \"Arlandra C. UPTON, Appellant, v. STATE of Alaska, Appellee\", \"name_abbreviation\": \"Upton v. State\", \"decision_date\": \"1988-02-05\", \"docket_number\": \"No. A-2152\", \"first_page\": \"386\", \"last_page\": \"388\", \"citations\": \"749 P.2d 386\", \"volume\": \"749\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Court of Appeals\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T21:37:21.054945+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before BRYNER, C.J., and COATS and SINGLETON, JJ.\", \"parties\": \"Arlandra C. UPTON, Appellant, v. STATE of Alaska, Appellee.\", \"head_matter\": \"Arlandra C. UPTON, Appellant, v. STATE of Alaska, Appellee.\\nNo. A-2152.\\nCourt of Appeals of Alaska.\\nFeb. 5, 1988.\\nWilliam F. Morse, Asst. Public Defender, and Dana Fabe, Public Defender, Anchorage, for appellant.\\nMarcia H. Bissell, Asst. Dist. Atty.., Dwayne W. McConnell, Dist. Atty., Anchorage, and Grace Berg Schaible, Atty. Gen., Juneau, for appellee.\\nBefore BRYNER, C.J., and COATS and SINGLETON, JJ.\", \"word_count\": \"896\", \"char_count\": \"5695\", \"text\": \"OPINION\\nBRYNER, Chief Judge.\\nArlandra C. Upton was convicted following a jury trial of one count of misconduct involving a controlled substance in the third degree, in violation of AS 11.71.-030(a)(2) (sale of marijuana to a minor). The offense is a class B felony. AS 11.71.-030(b). Because Upton had two previous felony convictions, he was subject to a presumptive term of six years. AS 12.55.-125(d)(2).\\nPrior to sentencing, Upton established two applicable mitigating factors: that his conduct was among the least serious in its class, AS 12.55.155(d)(9), and that only a small amount of marijuana was involved, AS 12.55.155(d)(14). The state established one aggravating factor: that Upton was on probation when he committed this offense. AS 12.55.155(c)(20).\\nRelying on the mitigating factors he had established, Upton argued below that his case should be referred to the three-judge panel for imposition of a sentence of less than three years. Alternatively, Upton urged the sentencing court to impose a three-year term \\u2014 the maximum reduction of the presumptive term permitted without referral to the three-judge panel. Superior Court Judge Ralph E. Moody declined to refer Upton's case to the three-judge panel. Judge Moody sentenced Upton to an adjusted presumptive term of five years. Upton appeals this sentence as excessive. We affirm.\\nOn January 30, 1987, Upton approached two boys, ages fourteen and fifteen, on Fourth Avenue in Anchorage and sold them approximately one-half gram of marijuana for ten dollars. At the time, Upton was thirty-two years of age. He had two prior felony convictions: a 1986 conviction in Alaska for burglary in the second degree, and a 1979 burglary conviction in Illinois. Upton was on probation for the most recent burglary. He had been released on probation after serving a fifteen month jail sentence; the release had occurred less than two months before the current offense.\\nOn appeal, Upton emphasizes that his offense involved only a minuscule quantity of marijuana, a drug that has been designated in the lowest category of controlled substances. Upton argues that in light of these circumstances, the sentencing court gave insufficient emphasis to the mitigated nature of his case. Upton urges us to hold that, at a minimum, the six-year presumptive term should have been reduced to no more than three years.\\nUpton's argument conflicts with our holding in Juneby v. State, 641 P.2d 823 (Alaska App.1982), modified in part, 665 P.2d 30 (Alaska App.1983). In Juneby, we emphasized the need for moderation in the adjustment of presumptive terms when aggravating and mitigating factors are established:\\nUnless the provisions of AS 12.55.155 are adhered to strictly, and unless a measured and restrained approach is taken in the adjustment of presumptive sentences for both aggravating and mitigating factors, then the prospect of attaining the statutory goal of uniform treatment for similarly situated offenders would quickly be eroded, the potential for irrational disparity in sentencing would threaten to become reality, and the revised code's carefully fashioned system of escalating penalties for repeat offenders would be rendered utterly ineffective.\\nJuneby, 641 P.2d at 833.\\nHere, although Upton was convicted of selling only a small quantity of a schedule VIA controlled substance, the sale appears to have been initiated by Upton and involved two children who were fourteen and fifteen years of age \\u2014 considerably below the nineteen-year-old threshold for the offense. Upton himself was thirty-two years of age and was a mature and experienced offender. Moreover, the mitigating factors in this case are offset by an aggravating factor \\u2014 that Upton was on probation. In fact, Upton had been on probation for only a short period of time. He was released after serving a substantial period of time in jail. These considerations are particularly important, because, as Judge Moody correctly noted, they provide a strong indication that Upton's chances for rehabilitation are relatively poor and that a substantial term of imprisonment is necessary for purposes of personal deterrence. Cf. McReynolds v. State, 739 P.2d 175 (Alaska App. 1987) (requiring maximum reduction of the applicable first-offense five-year presumptive term for sale of heroin, a class A felony, when the evidence showed that the defendant sold a minute quantity to a friend, without profit, and when the sentencing court expressly found the defendant's conduct to be among the least serious in its class, without any offsetting aggravating factors).\\nThe extent to which a presumptive term should be adjusted in light of aggravating and mitigating factors is a matter within the sound discretion of the sentencing court. We are empowered to reverse the sentencing court's decision only when it is clearly mistaken. Juneby v. State, 641 P.2d at 834. In the present case, having independently reviewed the entire sentencing record, we conclude that the adjusted term of five years is not clearly mistaken.\\nThe sentence is AFFIRMED.\\n. Because Upton's three-judge panel argument is based solely on the mitigating factors he established below, our decision that the sentence actually imposed is not clearly mistaken necessarily resolves the three-judge panel issue,\"}"
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+"{\"id\": \"10402189\", \"name\": \"Chester Erie VAN METER, Appellant, v. STATE of Alaska, Appellee\", \"name_abbreviation\": \"Van Meter v. State\", \"decision_date\": \"1987-10-09\", \"docket_number\": \"No. A-1510\", \"first_page\": \"385\", \"last_page\": \"392\", \"citations\": \"743 P.2d 385\", \"volume\": \"743\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Court of Appeals\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T21:54:19.517955+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before BRYNER, C.J., and COATS and SINGLETON, JJ.\", \"parties\": \"Chester Erie VAN METER, Appellant, v. STATE of Alaska, Appellee.\", \"head_matter\": \"Chester Erie VAN METER, Appellant, v. STATE of Alaska, Appellee.\\nNo. A-1510.\\nCourt of Appeals of Alaska.\\nOct. 9, 1987.\\nChristine S. Schleuss, Anchorage, for appellant.\\nRobert D. Bacon, Asst. Atty. Gen., Office of Special Prosecutions and Appeals, Anchorage, and Grace Berg Schaible, Atty. Gen., Juneau, for appellee.\\nBefore BRYNER, C.J., and COATS and SINGLETON, JJ.\", \"word_count\": \"4018\", \"char_count\": \"24872\", \"text\": \"OPINION\\nBRYNER, Chief Judge.\\nChester Erie Van Meter was tried without a jury and convicted of sexual abuse of a minor in the second degree. See AS 11.41.420. Superior Court Judge Charles K. Cranston sentenced Van Meter to four years with all but nine months suspended. Van Meter appeals, contending that the trial court erred in denying a motion to hold an evidentiary hearing on the admissibility of polygraph evidence, in admitting an out-of-court videotaped statement made by the victim, in incorrectly determining the applicable culpable mental state for the offense, and in admitting evidence of emotional trauma suffered by the victim following the offense. We affirm.\\nThe charges in this case stemmed from an incident in which Van Meter placed his hand inside a six-year-old girl's underpants. Van Meter, a seventy-nine-year-old man, was staying with the R. family while he vacationed in Alaska. On September 14, 1985, Van Meter played a game he called \\\"gallopy-trot\\\" with the victim, A.R. Van Meter would bounce A.R. on his knees while reciting a rhyme and then drop the child to the floor. Then he would pick her up and tickle her. Ms. R., who was present in another room, saw some of the horseplay and did not like it because it looked rough. However, she did not stop the game.\\nThe following day A.R.'s sister told her mother that A.R. said Van Meter touched her \\\"private parts.\\\" Ms. R. asked A.R. if it was true. A.R. responded that Van Meter had hurt her. A subsequent medical examination indicated that A.R. had abnormal scratches and redness in and around her vaginal area. The injuries were consistent with A.R. scratching herself or being scratched with some kind of semi-sharp object such as a fingernail, and with the insertion of an adult finger into the genitals.\\nThe police were notified of A.R.'s allegation. On the evening of September 15 and the morning of September 16,1985, Alaska State Trooper Wayne Von Ciasen interrogated Van Meter. Van Meter was indicted for sexual abuse of a minor in the first degree on September 19, 1985.\\nPolygraph Evidence\\nPrior to trial, Van Meter was released on bail and returned to his residence in Fayetteville, Arkansas. He returned to Alaska a few days before his trial date of February 6, 1986. Van Meter took a polygraph examination in Anchorage on February 1, 1986.\\nVan Meter moved for admission of the polygraph examination results. On the day before trial, Judge Cranston presided over a hearing on the motion. Van Meter requested an evidentiary hearing on the admissibility of the polygraph results. He made the following offer of proof as to what he would try to establish:\\nI would think, [it] would be the most expeditious [and] efficient for me to bear the burden of proof to show, through experimentation and/or other information or evidence, that the results are reliable, that the examiner is qualified and that he is interpreting the tests in this case properly. I would think that if that is found by the Court and the Court then would be able to render an opinion as to whether or not the results are sufficiently reliable to be admitted in the court.\\nI expect that I would be calling just one witness, that would be Mr. Slisz from Anchorage.\\nJudge Cranston declined Van Meter's request for an evidentiary hearing and ruled the polygraph evidence inadmissible.\\nAt the close of his trial testimony, Van Meter renewed his request for admission of the polygraph evidence and for an eviden-tiary hearing on the issue. Judge Cranston again rejected Van Meter's requests. On appeal, Van Meter contends that the trial court erred in excluding the polygraph evidence without allowing an evidentiary hearing to establish its reliability.\\nVan Meter acknowledges that in Pulakis v. State, 476 P.2d 474 (Alaska 1970), the Alaska Supreme Court found insufficient evidence of reliability to warrant the admission of polygraph examination results at trial. Van Meter notes, however, that the court left the door open for future re-examination of its holding. The court stated:\\nThe central problem regarding admissibility is not that polygraph evidence has proved unreliable, but that polygraph proponents have not yet developed persuasive data demonstrating its reliability. Little worthwhile experimentation has been done to determine the reliability of polygraph evidence. This is not to say that the worth of polygraph evidence cannot ever be proved to the satisfaction of this court.\\n476 P.2d at 479. The court further stated, \\\"Judicial acceptance of polygraph tests must await the results of more persuasive experimental proof of reliability.\\\" Id. See also Troyer v. State, 614 P.2d 313, 319 n. 12 (Alaska 1980).\\nUnder Pulakis and Troyer, Van Meter was obligated to make at least a colorable showing that, since the supreme court's decision in Pulakis, additional experimental evidence has come to light establishing that the polygraph technique is a scientifically reliable process:\\nIt has been suggested that recent tests indicate the polygraph technique is a reliable process. See Tarlow, Admissibility of Polygraph Evidence in 1975: An Aid in Determining Credibility in a Perjury-Plagued System, 26 Hastings L.J. 917, 927-34 (1975). Bodine, Polygraphs Take the Stand, The National Law Journal, April 14, 1980, at 1, col. 1. Without sufficient foundational evidence, we are unable to make an informed decision concerning the reliability of the technique today. Here, the defendants failed to provide an evidentiary basis to establish the reliability of the polygraph technique.\\nTroyer, 614 P.2d at 319 n. 12. Despite his request for an evidentiary hearing, Van Meter never offered to make such a showing.\\nThe only specific offer of proof made by Van\\\" Meter in requesting an evidentiary hearing was in connection with his motion for a new trial. Van Meter appended to his motion the results of his exam, as interpreted by Richard Slisz of Alaska Polygraph Service, and Mr. Slisz's resume. While this may be construed as an offer of proof aimed at establishing Slisz's qualifications as an examiner and the accuracy of the result of the examination in this case, the offer has utterly no bearing on the broader, preliminary issue that must be addressed under Pulakis and Troyer: the general reliability of polygraph testing as a scientific process.\\nNor does Van Meter's argument on appeal provide any indication that he would be prepared to address this issue at an evidentiary hearing. In the absence of such an offer, we conclude that Van Meter's request for an evidentiary hearing on the admissibility of the polygraph evidence was properly denied and that the proposed polygraph evidence was correctly deemed inadmissible under Pulakis and Troyer.\\nVideotaped Statement\\nVan Meter argues that it was reversible error for the trial court to admit the videotaped statement made by A.R. to a psychologist two days after the assault. After A.R. testified, the trial court admitted the videotape as a prior consistent statement. See Alaska Rule of Evidence 801(d)(1)(B). The question whether A.R.'s videotaped statement was admissible is controlled by our decision in Nitz v. State, 720 P.2d 55 (Alaska App.1986). In Nitz we stated:\\nRule 801(d)(1)(B) is commonly construed to require that three conditions be met before a prior consistent statement may be admitted as non-hearsay. First, the prior statement must be consistent with testimony given by the declarant at trial. Second, the statement must be admitted to rebut an express or implied charge of recent fabrication or improper influence or motive. Third, the prior statement must be shown to have been made before the asserted improper influence or motive arose, (citations omitted)\\n720 P.2d at 64.\\nVan Meter argues that A.R.'s testimony was inconsistent with her trial testimony, that there was no express or implied charge of recent fabrication, and that a motive to lie existed before A.R. made her statement.\\nThe admissibility of evidence is largely within the trial court's discretion and its rulings will not be overturned in absence of an abuse of discretion. Hawley v. State, 614 P.2d 1349, 1361 (Alaska 1980); Eben v. State, 599 P.2d 700, 710 (Alaska 1979). In the present case, the discrepancies between A.R.'s videotaped statement and her trial testimony concerned the clothing she was wearing when she was assaulted, the physical location of one of the assaults, and her ability to use an anatomically correct doll to indicate Van Meter's method of assault. A.R.'s basic description of the assault, however, was not inconsistent. In the videotaped statement and at trial, A.R. stated that she was assaulted while playing the \\\"horsey\\\" game, that Van Meter used his hand for the assault, and that he reached into A.R.'s clothing and hurt her. Under the circumstances, it was well within the ambit of the trial judge's broad discretion to determine that the videotaped statement was a prior consistent statement.\\nThe second condition of admissibility under A.R.E. 801(d)(1)(B) and Nitz \\u2014 a claim of fabrication or improper influence or motive \\u2014 was clearly satisfied in this case by Van Meter's assertions, in both his opening statement and his cross-examination of A.R., that A.R.'s trial testimony was the result of fabrication. In his opening statement Van Meter contended that A.R.'s accounts of the sexual abuse were not consistent. On cross-examination, Van Meter implied that A.R.'s testimony had been influenced by her contacts with the police and the prosecuting attorney. In arguing the admissibility of the videotaped statement at trial, Van Meter's counsel conceded that he was \\\"obviously\\\" suggesting inconsistencies and fabrication.\\nThe third condition of admissibility under A.R.E. 801(dXl)(B) is that an out-of-court statement be recent \\u2014 in other words, that it be made before a motive to fabricate arises. However, in Nitz this court declined to read A.R.E. 801(d)(1)(B) to require automatic exclusion of prior consistent statements made after a motive to testify falsely has arisen. Under Nitz, admission of such evidence becomes a question of relevance for determination on a case-by-case basis. Nitz, 720 P.2d at 67-68. In any event, in the present case Van Meter's attack on A.R.'s credibility implied that she had been influenced to incriminate Van Meter in recent conversations with the police and the prosecution. Even apart from our holding in Nitz, this implication satisfied the recency requirement of A.R.E. 801(dMlXB).\\nWe conclude that A.R.'s videotaped statement was properly admitted as a prior consistent statement under A.R.E. 801(dXlXB).\\nCulpable Mental State\\nVan Meter argues that the trial court erred in failing to apply the correct culpable mental state for the offense of sexual abuse in the second degree. The trial court concluded that Van Meter had knowingly touched A.R. in a sexual manner. In his conclusions of law Judge Cran-ston wrote:\\nThe state has proved beyond a reasonable doubt that:\\na. On or about September 14,1985, at or near Seward, Third Judicial District, State of Alaska;\\nb. That defendant at that time and place was sixteen (16) years of age or older;\\nc. That defendant at that time and place knowingly engaged in sexual contact with A.R.;\\nd. A.R. at that time and place was under thirteen (13) years of age.\\n(Emphasis added.)\\nBased on these conclusions, Judge Cran-ston found Van Meter guilty of sexual abuse of a minor in the second degree: engaging in sexual contact with a child under thirteen. AS 11.41.436(a)(2). \\\"Sexual contact,\\\" as defined in the 1984 amendment to AS 11.81.900(b)(52), means:\\n(A) the defendant's\\n(i) knowingly touching, directly or through clothing, the victim's genitals, anus, or female breast; or\\n(ii) knowingly causing the victim to touch, directly or through clothing, the defendant's or victim's genitals, anus, or female breast;\\n(B) but \\\"sexual contact\\\" does not include acts\\n(i) that may reasonably be construed to be normal caretaker responsibilities for a child, interactions with a child, or affection for a child....\\n(ii) performed for the purpose of administering a recognized and lawful form of treatment that is reasonably adapted to promoting the physical or mental health of the person being treated... .\\nVan Meter argues that Judge Cranston's finding of a knowing touching is not enough to satisfy constitutional due process requirements and that an additional mental element is required for conviction. Van Meter contends that the definition of \\\"sexual contact\\\" should be construed to require proof that the defendant \\\"acted with reckless disregard for the unjustified nature of his conduct.\\\" Flink v. State, 683 P.2d 725, 741 (Alaska App.1984) (Bryner, Chief Judge, concurring and dissenting).\\nVan Meter's argument is not supported by the commentary to the 1984 amendment, which explained the legislative intent in amending the definition of \\\"sexual contact\\\":\\nIn passing SCS for House Bill 299 (Judiciary), an Act relating to the definition of \\\"sexual contact\\\" and \\\"sexual penetration\\\", 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 SCSHB 299 (Judiciary), the legislature intends to reaffirm that crimes involving sexual contact and penetration are general intent crimes. The amendments contained in this bill are intended to remove any perceived ambiguity in existing law.\\n1984 Senate Journal 3387 (citation omitted) (emphasis added).\\nNevertheless, the actual language of the 1984 amendment is arguably ambiguous. Subparagraph (A) of the statutory definition clearly specifies the mental state that governs the defendant's conduct: the conduct must be \\\"knowing.\\\" Less clear, however, is whether any culpable mental state should attach to the circumstances described in subparagraph (B). This section excludes from the definition of \\\"sexual contact\\\" touchings that fall within the definition of subparagraph (A) when those touchings occur under circumstances deemed by the legislature to be justified. Although the language of subparagraph (B) does not provide for it, Van Meter urges that a culpable mental state should apply separately to the circumstances described in the subparagraph, so as to require not only that the defendant engage in a knowing touching of the type described in subparagraph (A), but also that the defendant be aware that the touching is not justified under subsection (B).\\nWe decline to interpret the statute in this manner, since such an interpretation so obviously conflicts with the intent expressed by the legislature in adopting the current definition of \\\"sexual contact.\\\" In our view, a more reasonable reading of the statute would attach no separate culpable mental state requirement to the circumstances described in subparagraph (B).\\nVan Meter asserts, however, that unless a separate culpable mental state requirement is attached to the circumstances described in subparagraph (B), the current statutory definition of sexual contact would suffer from the same constitutional problems that were of concern to this court in\\nFlink. There, we found difficulty with the former definition of \\\"sexual contact\\\":\\nAlthough the statutory definition of sexual contact requires knowing conduct and therefore includes an element of intent, that element does not help to differentiate between the wide variety of innocent touchings and harmful touchings potentially covered by the broad definition of sexual contact. Thus, the intent element included in the statute is not a criminal intent and does \\u00abt satisfy the requirement of mens rea \\u2014 that is, a culpable mental state, or an awareness of wrongdoing.... An awareness of wrongdoing might be unnecessary if the conduct prohibited by the statute was itself necessarily harmful \\u2014 malum in se. However, the range of conduct prohibited is so broad that the offense is malum prohibitum, and an awareness of wrongdoing must be included as a necessary element.\\nFlink, 683 P.2d at 739 (citations omitted) (Bryner, C.J., concurring and dissenting).\\nIn contrast, the amended statutory definition eliminates these problems: in sub-paragraph (A), the amended definition provides for a specific mental state governing conduct; in subparagraph (B), the amended definition limits the circumstances in which otherwise impermissible touchings may be proscribed. Thus, the legislature has responded to the problem of differentiating between a \\\"wide variety of innocent touchings and harmful touchings,\\\" by including in AS 11.81.900(b)(52)(B) limiting language that broadly excludes from the definition of \\\"sexual contact\\\" acts that \\\"may reasonably be construed to be normal caretaker responsibilities for a child, interactions with a child, or affection for a child,\\\" as well as acts \\\"performed for the purpose of administering recognized and lawful forms of treatment....\\\"\\nNor can the amended definition be construed to result in an inappropriate shift to the defendant of the burden of proof with respect to justification. In its commentary, the legislature stated:\\nThe legislature intends that the exceptions listed in revised AS 11.81.-900(b)(52)(B) and AS 118.81.900(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).\\nCommentary to AS 11.81.900(b)(52) and (53), 1984 Senate Journal at 3388 (May 30, 1984). Thus, when \\\"some evidence\\\" is presented to indicate that a touching was justified under subparagraph (B), the state must prove beyond a reasonable doubt the absence of justification. See AS 11.81.-900(b)(15).\\nIn short, under the current statutory definition of \\\"sexual contact,\\\" the offense of sexual abuse of a minor in the second degree may properly be established by evidence proving knowing conduct within the scope of AS 11.81.900(b)(52)(A). No secondary culpable mental state need be established with respect to surrounding circumstances. If, however, some evidence of justification is advanced in the record, the state must bear the additional burden of establishing that the defendant's conduct did not fall within the exclusions of AS 11.81.900(b)(52)(B).\\nIn the present case, we believe that the standard applied by Judge Cranston was compatible with that adopted by the legislature. In his findings of fact Judge Cran-ston stated that the evidence showed beyond a reasonable doubt that while playing \\\"gallopy-trot\\\" or during tickling occurring as part of that game, Van Meter placed his hand inside A.R.'s underwear, knowingly causing contact between his hand or fingers and A.R.'s genitals. Judge Cranston further found that the nature of the physical trauma to A.R. showed beyond a reasonable doubt that Van Meter knew that his conduct involved sexual contact. These findings clearly establish that, in Judge Cranston's view, Van Meter's contact with A.R.'s vagina did not occur through the child's clothing; rather, Van Meter deliber ately placed his hand inside A.R.'s underwear. It is thus apparent that the judge unequivocally rejected Van Meter's defense, which was based on the theory that, as part of the \\\"gallopy-trot\\\" game, some casual but innocent touching technically qualifying as \\\"sexual contact\\\" may have occurred. We find no error.\\nVictim's Mental State\\nVan Meter's final argument concerns the admission of evidence of A.R.'s post-sexual-abuse trauma. Over Van Meter's objection, the trial judge permitted A.R.'s mother to testify:\\nMS. TURNER: After Mr. Van Meter left your home, has the child had any emotional problems?\\nMRS. R: Yes.\\nMS. TURNER: Could you just describe that briefly for the Court please?\\nMRS. R: Terrible temper tantrums and nightmares screaming at night. She said that Earl was under her bed and he was going to get her. Sucking her thumb, wetting her pants, and what we call be-bopping (ph) where she sits like a \\u2014 she sits on the couch and she bangs her head on the wall (indiscernible) rocking.\\nMS. TURNER: Has the child been in therapy for those things?\\nMRS. R: Yes ma'am.\\nVan Meter argues that this evidence was irrelevant and therefore inadmissible. He contends that, absent evidence of A.R.'s emotional condition prior to the sexual assault, the evidence relating to her post-assault behavior should have been excluded. This argument is frivolous in context. While the prosecution did not expressly ask when A.R. first began to display the emotional problems described in her mother's testimony, the obvious implication of the testimony is that the problems first arose after A.R.'s contact with Van Meter. Indeed, it is difficult to understand how A.R. could have awakened from nightmares, screaming that Van Meter was under her bed if the episodes had occurred prior to her meeting Van Meter. Van Meter was, of course, free on cross-examination of A.R.'s mother to pinpoint the time frame for A.R.'s behavior. He elected not to do so.\\nAlaska Rule of Evidence 401 provides a broad definition of relevance: \\\"evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.\\\" We find that Judge Cran-ston did not abuse his discretion in admitting the challenged evidence as relevant. See, e.g., Denison v. Anchorage, 630 P.2d 1001 (Alaska App.1981); Byrne v. State, 654 P.2d 795 (Alaska App.1982).\\nThe judgment of the superior court is AFFIRMED.\\n. Richard W. Slisz is the polygraph examiner who administered the examination to Van Meter on February 1, 1986.\\n. We thus uphold the trial court's denial of Van Meter's motion for an evidentiary hearing for reasons other than those stated by the court below. Rutherford v. State, 605 P.2d 16, 21 n. 12 (Alaska 1979); Kizzire v. State, 715 P.2d 272, 273 n. 1 (Alaska App.1986). See also Pistro v. State, 590 P.2d 884, 888 n. 13 (Alaska 1979). We affirm on the narrow ground that Van Meter has not shown that he was prepared to provide an evidentiary basis to establish the reliability of the polygraph process. We need not determine whether Judge Cranston was correct in finding that Van Meter's motion was untimely or in construing this court's decision in Leonard v. State, 655 P.2d 766 (Alaska App.1982), to foreclose an evidentiary hearing.\\n. A.R.E. 801(d)(1)(B) provides:\\n(d) Statements Which Are Not Hearsay. A statement is not hearsay if (1) Prior Statement by Witness. The de-clarant testifies at the trial or hearing and the statement is\\n(B) consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive....\\n. Even if Van Meter could make a persuasive argument that the prior statement was not consistent, the evidence would have been admissible as a prior inconsistent statement. In this regard, A.R.E. 801(d)(1)(A) provides:\\n(d) Statements Which Are Not Hearsay. A statement is not hearsay if\\n(1) Prior Statement by Witness. The de-clarant testifies at the trial or hearing and the statement is\\n(A) inconsistent with his testimony....\\n. Prior to amendment in 1984, \\\"sexual contact\\\" was defined as:\\n(A) the intentional touching, directly or through clothing, by the defendant of the victim's genitals, anus, or female breast; or\\n(B) the defendant's intentionally causing the victim to touch, directly or through clothing, the defendant's or victim's genitals, anus, or female breast....\\nFormer AS 11.81.900(b)(51).\\n. \\\"Knowing\\\" is, in turn, defined in AS 11.81.-900(a)(2), which provides in relevant part:\\n[A] person acts \\\"knowingly\\\" with respect to conduct or to a circumstance described by a provision of law defining an offense when the person is aware that the conduct is of that nature or that the circumstance exists; when knowledge of the existence of a particular fact is an element of an offense, that knowledge is established if a person is aware of a substantial probability of its existence, unless the person actually believes it does not exist; a person who is unaware of conduct or a circumstance of which the person would have been aware had that person not been intoxicated acts knowingly with respect to that conduct or circumstance....\"}"
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+"{\"id\": \"10408636\", \"name\": \"Glenn J. KALMAKOFF, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee\", \"name_abbreviation\": \"Kalmakoff v. Municipality of Anchorage\", \"decision_date\": \"1986-02-21\", \"docket_number\": \"No. A-920\", \"first_page\": \"261\", \"last_page\": \"263\", \"citations\": \"715 P.2d 261\", \"volume\": \"715\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Court of Appeals\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T18:57:04.599082+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before BRYNER, C.J., and COATS and SINGLETON, JJ.\", \"parties\": \"Glenn J. KALMAKOFF, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee.\", \"head_matter\": \"Glenn J. KALMAKOFF, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee.\\nNo. A-920.\\nCourt of Appeals of Alaska.\\nFeb. 21, 1986.\\nSamuel J. Fortier and Dagmar C. Mikko, Fortier & Mikko, Anchorage, for appellant.\\nScott Jay Sidell, Asst. Mun. Pros., James Ottinger, Mun. Pros., and Jerry Wertz-baugher, Mun. Atty., Anchorage, for appel-lee.\\nBefore BRYNER, C.J., and COATS and SINGLETON, JJ.\", \"word_count\": \"1756\", \"char_count\": \"10646\", \"text\": \"OPINION\\nBRYNER, Chief Judge.\\nGlenn J. Kalmakoff was convicted, following a jury trial, of driving while intoxicated (DWI), in violation of AMC 09.28.020, and reckless driving, in violation of AMC 09.28.010. On appeal, Kalmakoff challenges the validity of the trial court's instruction concerning the statutory presumptions that apply to breath test results. He also questions the sufficiency of the evidence with respect to the charge of reckless driving.\\nAfter arresting Kalmakoff for DWI, Anchorage police officers subjected him to an intoximeter test and obtained a reading of .102. Uncontroverted testimony at Kal-makoff's trial established an inherent error factor of .01 for the intoximeter instrument, indicating that, if Kalmakoff's test was correctly performed, his true score could have been as low as .092 or as high as .112. Based on this testimony, Kalma-koff moved for a judgment of acquittal on the DWI charge and argued, alternatively, that it would be improper to instruct the jury on the statutory presumptions applicable to a breath test result of .10 or greater. Kalmakoff also argued alternatively that, if the jury was instructed on the presumption of intoxication, it should be required to find beyond a reasonable doubt that Kal-makoff's breath alcohol content was .10 or greater before relying on that presumption.\\nDistrict Court Judge Glen C. Anderson denied Kalmakoff's motion for a judgment of acquittal but found that, in view of the marginal intoximeter reading, Kalmakoff's DWI charge could be presented to the jury only on the theory that Kalmakoff was actually under the influence while driving. See AMC 09.28.020(B)(1). Judge Anderson declined to instruct the jury on the alternative statutory theory of DWI, under which Kalmakoff could have been convicted if the jury found that he had driven with a breath alcohol content of .10 or greater. See AMC 09.28.020(B)(2).\\nJudge Anderson instructed the jury on the presumptions applicable to breath test results in Jury Instruction No. 10, which read as follows:\\nUnder Alaska law, when a person is alleged to be operating a motor vehicle under the influence of intoxicating liquor, the amount of alcohol in the person's breath at the time alleged, as shown by chemical analysis of the person's breath, may give rise to the following inferences:\\n(1) If there was 0.05 grams of alcohol per 210 liters of breath or less, it may be inferred that the person was not under the influence of intoxicating liquor.\\n(2) If there was in excess of 0.05 grams but less than 0.10 grams of alcohol per 210 liters of breath, that fact, standing alone, gives rise to no inference.\\n(3) If there was 0.10 grams of alcohol per 210 liters of breath or greater, it may be inferred that the person was under the influence of intoxicating liquor.\\nIf you find that a breath examination accurately established the defendant's breath alcohol content to be one-tenth of a gram (0.10) of alcohol per 210 liters of breath or greater, and if you find no other believable evidence of his condition, then you may rely solely on the test as a basis for finding that the defendant was under the influence of intoxicating liquor at the time charged.\\nHowever, if you do find that there is other believable evidence showing that the defendant may not have been under the influence of intoxicating liquor at the time charged then you must decide the issue based on a careful consideration of all the facts and circumstances in evidence bearing on the defendant's condition, no longer relying exclusively on the results of the breath test.\\nThis instruction incorporated the substance of the statutory presumption set out in AMC 09.28.023.\\nKalmakoff contends on appeal that the jury should not have been instructed on the portion of the statutory presumption that applies to a breath alcohol content of .10 or above. He alternatively argues that Jury Instruction No. 10 should have required the jury to find beyond a reasonable doubt that his breath alcohol content was .10 or greater before it was permitted to rely on the statutory presumption.\\nKalmakoff's conclusion that Jury Instruction No. 10 was improper seems to be based on three premises: first, that a breath alcohol content of .10 or greater is an essential element of DWI, second, that Jury Instruction No. 10 creates a mandatory presumption with respect to that element, and, third, that the instruction shifts the burden of proof to the accused.\\nWe find all three of Kalmakoff's premises to be mistaken. In our view, Jury Instruction No. 10, when given a common sense reading, does not create a mandatory presumption. Rather, it establishes nothing more than a permissive inference. In this regard, the instruction substantially complies with the requirements of Evidence Rule 303(a)(1), which governs presumptions against the accused in criminal cases.\\nSimilarly, nothing in the plain language of Jury Instruction No. 10 can be said to shift the burden of proof or of persuasion to the accused. Finally, we note that, contrary to the position taken by Kalmakoff on appeal, a breath alcohol level of .10 or greater is simply not an element of DWI under the specific theory of the offense submitted to the jury. The jury was allowed to consider Kalmakoff's guilt only under AMC 09.28.020(B)(1), under which driving while under the actual influence of intoxicating liquor is prohibited, without regard to any specific level of breath or blood alcohol. The evidence of Kalmakoff's breath alcohol reading was obviously relevant on this issue; Jury Instruction No. 10 simply allowed the jury to evaluate the significance of that evidence. See Byrne v. State, 654 P.2d 795 (Alaska App.1982); Denison v. Anchorage, 630 P.2d 1001 (Alaska App.1981).\\nConsidering the limited theory on which Kalmakoff s case was submitted to the jury, we conclude that the trial court did not commit error in giving Instruction No. 10 to the jury. Doyle v. State, 633 P.2d 306 (Alaska App.1981). We further conclude that the court did not err in declining to instruct that proof beyond a reasonable doubt was required as a predicate for consideration of the applicable presumptions.\\nKalmakoff raises additional points with respect to his conviction for reckless driving. We need not address these issues. Kalmakoffs reckless driving conviction was based on precisely the same conduct as his DWI. In arguing the reckless driving charge to the jury, the prosecution characterized it as being, in effect, a lesser-included offense of the DWI charge. Moreover, the jury was told that Kalmakoff's intoxication could be considered as a basis for finding that Kalmakoff had driven recklessly. Under these limited circumstances, we believe that the offense of reckless driving must be deemed to have merged with the offense of DWI, and we hold that it was error to enter a separate judgment of conviction against Kalmakoff on the reckless driving charge. See Tuckfield v. State, 621 P.2d 1350 (Alaska 1981).\\nThe conviction of DWI is AFFIRMED. The conviction of reckless driving is VACATED.\\n. Anchorage Municipal Code 09.28.023, in turn, reflects the presumption created under state law in AS 28.35.033. The trial court's instruction departs from the statutory language in only one minor respect: the phrase, \\\"as shown by chemical analysis of the person's breath,\\\" which appears in the first paragraph of Jury Instruction No. 10, is not contained in the text of either the Municipal Code or the Alaska Statutes. This phrase appears to have been inadvertently in-eluded in the instruction from prior versions of the statutory provisions. While the discrepancy is not significant in the present case, we believe it would be best, in the interest of accuracy, if the extraneous language were omitted in future DWI instructions.\\n. Alaska Rule of Evidence 303(a)(1) provides:\\nPresumptions directed against an accused. In all criminal cases when not otherwise pro vided 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. If the accused offers evidence to rebut or meet the presumption, the court may 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.\\nJury Instruction No. 10 arguably deviates from the requirements of Rule 303(a)(1) in that it does not expressly inform the jury that it \\\"may, but is not required to,\\\" infer the presumed fact from the proved fact. However, the permissive nature of the inference established by Jury Instruction No. 10 is unmistakably expressed in the final paragraphs of the instruction. Nevertheless, we believe that future versions of the instruction should be amended to comply literally with the requirements of A.R.E. 303(a)(1).\\n. In so holding, we find that the municipality substantially complied with applicable foundational prerequisites for admission of the intox-imeter results, see 7 AAC 30.020(b), and we reject Kalmakoff's claim to the contrary.\\n. We recognize, as Judge Anderson apparently did below, that a different conclusion might be required if Kalmakoff's case had been submitted to the jury on the theory that he committed the offense by driving with a breath alcohol content of .10 or greater. Compare State v. Boehmer, 1 Haw.App. 44, 613 P.2d 916 (1980), State v. Bjornsen, 201 Neb. 709, 271 N.W.2d 839 (1978), and State v. Clark, 286 Or. 33, 593 P.2d 123 (1979), with State v. Rucker, 297 A.2d 400 (Del.1972), and State v. Shaping, 312 N.C. 421, 323 S.E.2d 350 (1984). State v. Keller, 36 Wash.App. 110, 672 P.2d 412 (1983). We need not resolve this issue, because it is not raised in the circumstances of this case.\"}"
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+"{\"id\": \"10413642\", \"name\": \"Arthur JENSEN, Petitioner, v. ALASKA VALUATION SERVICE, INC., Respondent\", \"name_abbreviation\": \"Jensen v. Alaska Valuation Service, Inc.\", \"decision_date\": \"1984-08-24\", \"docket_number\": \"No. S-86\", \"first_page\": \"161\", \"last_page\": \"165\", \"citations\": \"688 P.2d 161\", \"volume\": \"688\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T20:01:04.172045+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before BURKE, C.J., and RABINOW-ITZ, COMPTON and MOORE, JJ.\", \"parties\": \"Arthur JENSEN, Petitioner, v. ALASKA VALUATION SERVICE, INC., Respondent.\", \"head_matter\": \"Arthur JENSEN, Petitioner, v. ALASKA VALUATION SERVICE, INC., Respondent.\\nNo. S-86.\\nSupreme Court of Alaska.\\nAug. 24, 1984.\\nTimothy Byrnes, Hughes, Thorsness, Gantz, Powell & Brundin, Anchorage, for petitioner.\\nLewis Gordon, Baily & Mason, Anchorage, for respondent.\\nBefore BURKE, C.J., and RABINOW-ITZ, COMPTON and MOORE, JJ.\", \"word_count\": \"2569\", \"char_count\": \"15468\", \"text\": \"OPINION\\nCOMPTON, Justice.\\nIn this petition we are asked to decide whether the use of corporate checks is sufficient, in and of itself, to inform the recipient of the checks that it deals with a corporation rather than an individual. Although the monetary value of this case is inconsequential, we agreed to hear it because the question at issue is likely to recur. Alaska R.App.P. 304. We hold that the question is ultimately one of fact, and conclude that the trial court did not err in finding that in this case corporate checks did not provide sufficient notice of the existence of a corporation.\\nI. FACTUAL AND PROCEDURAL BACKGROUND\\nArthur Jensen, Inc. was an Alaska corporation, incorporated in 1972, engaged in the housing construction business. Arthur Jensen owned over half of the corporation's stock and served as its president. The corporation became insolvent in 1980.\\nAlaska Valuation Service (AVS) conducted appraisals for Arthur Jensen from the early 1970s until 1979. On July 19, 1979, Jensen ordered by telephone appraisals on five single family homes. AVS was to appraise these residences from plans and blueprints rather than from an actual inspection of the sites. AVS's president, Alfred Ferrara, who took the order, recorded it as being for \\\"Art Jensen.\\\" Invoices for the appraisals were later sent to \\\"Art Jensen, Jensen Builders\\\" at the corporation's Anchorage post office box address. Arthur Jensen, Inc. was not mentioned in AVS's records until late 1979, when Jensen specifically informed AVS of his company's corporate status. Thereafter, a statement of lien filing fee was addressed to Arthur Jensen, Inc. The appraisals were completed but never paid for.\\nIn 1982, AVS filed a complaint for $823.00 against Jensen in small claims court. Jensen admitted the amount of the debt, but denied any personal liability. At trial, Ferrera testified that he had not been aware that Jensen was doing business as a corporation until late 1979. He stated that AVS's records had always shown Jensen as \\\"Arthur Jensen, Jensen Builders,\\\" and that he had assumed that the company was a sole proprietorship. He claimed that \\\"[i]t's just not typical . for most of the builders we do business with to be corporations,\\\" and that it had not occurred to him that Jensen might be incorporated.\\nJensen testified that he had always paid for appraisal services with the corporation's checks, and introduced four checks dated prior to July 1979 into evidence. He also testified that he placed signs with the corporation's name on each of the houses he built. He conceded, however, that appraisals were completed before construction on the houses began. He testified that he could not think of anything besides the checks which might have put AVS on notice that it was dealing with a corporation.\\nThe small claims court concluded that \\\"just writing checks after the fact to a bookkeeper\\\" did not provide AVS with adequate notice of Arthur Jensen's position as an agent of a corporation. It awarded AVS $831.00.\\nJensen appealed the decision to superior court and requested leave to submit the contractor's plans from which the appraisals were made. He alleged that these plans contained information identifying Arthur Jensen, Inc., and would have given AVS notice that it was dealing with a corporation before the actual appraisals could be done. The superior court affirmed the district court ruling without mentioning the request to supplement the record.\\nIn his petition for hearing, Jensen asks that we hold that payments to a creditor by corporate checks over the course of several years adequately notifies that creditor of a company's corporate status.\\nII. JENSEN'S LIABILITY AS AN AGENT FOR AN UNDISCLOSED PRINCIPAL\\nAlthough officers of a corporation will not ordinarily be held personally liable for contracts they make as agents of the corporation, they must disclose their agency and the existence of the corporation before they will be absolved from liability. McCluskey Commissary, Inc. v. Sullivan, 96 Idaho 91, 524 P.2d 1063, 1065 (1974); 314 W. Fletcher, Cyclopedia of the Law of Private Corporations \\u00a7 1120, at 183 (rev. ed. 1975). An agent who makes a contract for an undisclosed or partially disclosed principal will be liable as a party to the contract. Restatement (Second) of Agency, \\u00a7 321, 322 (1958). Thus, Jensen can avoid liability only if his use of corporate checks disclosed the existence of Arthur Jensen, Inc. and Jensen's intention to contract on its behalf.\\nAn agent who attempts to avoid liability on a contract has the burden of proving that the agency relationship and the identity of the principal were in fact disclosed. Diamond Match Co. v. Crute, 145 Conn. 277, 141 A.2d 247, 249 (1958); Brown v. Owen Litho Service, Inc., 179 Ind.App. 198, 384 N.E.2d 1132, 1133 (1979). A third party with whom the agent deals is not required to inquire whether the agent is acting for another. Diamond Match Co., 141 A.2d at 248-49; see also Mawer-Gulden-Annis, Inc. v. Brazilian and Colombian Coffee Co., 49 Ill.App.2d 400, 199 N.E.2d 222, 225 (1964). The third party will be held to have notice of the agency relationship, however, \\\"if he knows [about it], has reason to know [about] it, should know [about] it, or has been given notification of it.\\\" Restatement (Second) of Agency \\u00a7 9 (1958).\\nThe question before us, then, is whether Jensen's continuing use of corporate checks gave AVS \\\"reason to know\\\" about the existence of Arthur Jensen, Inc. Courts in a number of jurisdictions have considered similar questions and reached varying conclusions. The holdings of these courts have fallen into three categories: 1) that use of corporate checks is sufficient, as a matter of law, to provide notice; 2) that it is insufficient as a matter of law; and 3) that the question is one of fact which must be decided by the court.\\nThe first category of holdings is best exemplified by Potter v. Chaney, 290 S.W.2d 44 (Ky.App.1956). In that case, the defendant was president of a coal company which bought coal from the plaintiff over the course of four years and paid him with corporate checks. The court held that the corporation's existence before the plaintiff began delivering coal and its consistent use of corporate checks were sufficient, as a matter of law, to have put the seller on notice that the buyer transacted business with it on behalf of a corporation.\\nThe Louisiana Court of Appeals reached the opposite conclusion in Jahncke Service, lnc. v. Heaslip, 76 So.2d 463 (La.App.1954). In that case, the defendant conducted business with the plaintiff over the course of several years, and incorporated during that time. He argued that his use of corporate checks should have put the defendant on notice that it dealt with a corporation rather than with an individual. The court held that the use of five or six corporate checks did not provide the plaintiff with legally sufficient notice to relieve the corporation's agent of liability.\\nMost courts that have considered arguments that the consistent use of corporate checks provided notice of agency have reached their decisions only after examining the surrounding facts and circumstances. In Diamond Match Co. v. Crute, 145 Conn. 277, 141 A.2d 247 (1958), and Brown v. Owen Litho Service, Inc., 179 Ind.App. 198, 384 N.E.2d 1132 (1979), the courts refused to overturn trial court findings that corporate officers had not provided sufficient notice that they acted as agents despite their use of corporate checks prior to the transactions at issue. In Diamond Match Co., the president of a corporation paid for lumber with corporate checks, though invoices were made out to him personally and sent to his home (which was also the office of the corporation). In Brown, an officer of a publishing corporation carried on negotiations in his home for the printing of the corporation's magazine but made all payments with corporate checks. Both courts took special note of the agents' failure to call the third party's attention to the existence of a corporation. Diamond Match Co., 141 A.2d at 248; Brown, 384 N.E.2d at 1134.\\nWe conclude that the third category of holdings \\u2014 that the question of whether an agent's use of corporate checks provides sufficient notice of the corporation's existence is a factual one \\u2014 is best supported by case law and by reason. We agree with the Brown court's conclusion that \\\"it is neither possible nor desirable to announce a rigid rule of law identifying specific facts that constitute 'full disclosure.' Disclosure is a question of fact to be treated as such by the reviewing court.\\\" 384 N.E.2d at 1136.\\nOrdinarily, the question of whether a corporate agent acts for a disclosed or an undisclosed principal is one of fact. Myers-Leiber Sign Co. v. Weirich, 2 Ariz.App. 534, 410 P.2d 491, 493 (1966); Matsko v. Dally, 49 Wash.2d 370, 301 P.2d 1074, 1077 (1956). An agent's use of corporate checks is one factor for the trier of fact's consideration, but it is not necessarily determinative. The reasonableness of a third party's failure to deduce the existence of a corporate principal from its agent's use of corporate checks varies from case to case. In Brown, for example, where all meetings took place in the agent's house, and the transaction at issue involved the printing of four issues of a new magazine, a court could reasonably conclude that the third party had insufficient notice of the corporation's existence. In Potter v. Chaney, on the other hand, where the transactions took place entirely in the corporation's offices, the corporation involved was a coal distributor, and $170,000 changed hands, the existence of the corporation was much more evident from the circumstances surrounding the use of corporate checks. We see no reason to attempt to fashion a rule of law which assumes that corporate checks provide equivalent notice in such widely differing factual settings.\\nSince we have determined that the small claims court's finding that Jensen did not sufficiently disclose his agency is one of fact, we will not disturb it unless it is clearly erroneous. Alaska R.Civ.P. 52(a); Black v. Dahl, 625 P.2d 876, 881 (Alaska 1981). At trial, AVS's president testified that most builders he dealt with were not incorporated, and that he had done business with Jensen for many years without being aware that he represented a corporation. In light of this testimony we cannot say that the trial court clearly erred in finding that Jensen's use of corporate checks did not provide AVS with notice of his company's corporate status.\\nIII. SUPPLEMENTATION OF THE RECORD\\nIn his appeal to superior court, Jensen moved to supplement the record with the plans from which AVS performed the appraisals. These plans, which identified Arthur Jensen, Inc. as the builder, were not introduced at trial. Jensen urges us to remand for consideration of the plans if we find that the corporate checks provided insufficient notice of the corporation's existence.\\nJensen placed his order for the appraisals by telephone, and submitted the plans to AVS sometime thereafter. AVS thus did not see the plans until after it had agreed to perform the appraisals. An agent is liable for a contract he or she enters into unless the principal is disclosed at the time the contract is formed. Potter v. Chaney, 290 S.W.2d at 46. As comment c to the Restatement (Second) of Agency \\u00a7 4 notes:\\nWhether a principal is a disclosed principal, a partially disclosed principal or an undisclosed principal depends upon the manifestations of the principal or agent and the knowledge of the other party at the time of the transaction. The disclosure of the existence or identity of the principal subsequently has no bearing upon the relations created at the time of the transaction. [Emphasis added].\\nJensen argues that the plans were incorporated by reference into the contract, since AVS' order form notes that the appraisals were to be made \\\"from plans.\\\" This argument is without merit. We are not concerned here with the integral parts of the contract, but with AVS' knowledge when it entered that contract. The plans had no bearing on AVS' actual or constructive notice of the existence of Arthur Jensen, Inc. at the time of the contract, since AVS did not see them until after the contract was formed. Hence, there is no need for remand to allow consideration of the plans.\\nAFFIRMED.\\n. Disclosed, partially disclosed, and undisclosed principals are defined in the Restatement as follows:\\n(1) If, at the time of a transaction conducted by an agent, the other party thereto has notice that the agent is acting for a principal and of the principal's identity, the principal is a disclosed principal.\\n(2) If the other party has notice that the agent is or may be acting for a principal but has no notice of the principal's identity, the principal for whom the agent is acting is a partially disclosed principal.\\n(3) If the other party has no notice that the agent is acting for a principal, the one for whom he acts is an undisclosed principal.\\nRestatement (Second) of Agency \\u00a7 4 (1958)\\n. Jensen argues that the Restatement places a strong evidentiary burden on a party seeking to hold an agent personally liable. He reaches this conclusion by reading together \\u00a7 328, which provides that \\\"[a]n agent, by making a contract only on behalf of a competent disclosed or partially disclosed principal whom he has power so to bind, does not thereby become liable for its performance;\\\" \\u00a7 4's definition of a partially disclosed principal (one whom the other party has notice \\\"may be acting for a principal\\\"); and \\u00a7 9's definition of notice (\\\"A person has notice of a fact if he . has reason to know it\\\"). He concludes from these sections that an agent should be absolved from liability whenever the other party \\\"has reason to know\\\" that he or she \\\"may be\\\" acting for a principal.\\nJensen's argument is contradicted by the Restatement as well as by case law. Under Restatement \\u00a7 321, \\\"[u]nless otherwise agreed, a person purporting to make a contract with another for a partially disclosed principal is a party to the contract\\\" (emphasis added). Sections 321 and 328 can be reconciled if we assume that an agent is personally liable unless he or she makes it clear that he or she is acting on behalf of a principal (whether or not the principal's identity is disclosed). Thus a holding that an agent has the burden of showing that the other party had reason to know of his or her agency is consistent with the Restatement.\\n. The Chaney court also noted that the seller had received weight receipts with the corporation's name on them and had visited the corporate offices. It held, however, that the checks and the longstanding corporate existence, \\\"standing alone,\\\" provided sufficient notice. Id. at 46.\\n. Jensen argues that a clearly erroneous standard is not appropriate in this case, since small claims judgments need not be supported by findings of facts, and since the trial court made no written findings in this case. The trial court's findings were sufficiently clear to allow us to review them, and we will not disturb them absent clear error.\"}"
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+"{\"id\": \"10415125\", \"name\": \"Ronald KUVAAS, Appellant, v. STATE of Alaska, Appellee\", \"name_abbreviation\": \"Kuvaas v. State\", \"decision_date\": \"1986-04-25\", \"docket_number\": \"No. A-1244\", \"first_page\": \"855\", \"last_page\": \"857\", \"citations\": \"717 P.2d 855\", \"volume\": \"717\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Court of Appeals\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-11T02:45:03.796251+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before BRYNER, C.J., and COATS and SINGLETON, JJ.\", \"parties\": \"Ronald KUVAAS, Appellant, v. STATE of Alaska, Appellee.\", \"head_matter\": \"Ronald KUVAAS, Appellant, v. STATE of Alaska, Appellee.\\nNo. A-1244.\\nCourt of Appeals of Alaska.\\nApril 25, 1986.\\nKevin F. McCoy, Asst. Public Defender, Kenai, and Dana Fabe, Public Defender, Anchorage, for appellant.\\nShannon D. Turner, Asst. Dist. Atty., Thomas M. Wardell, Dist. Atty., Kenai, and Harold M. Brown, Atty. Gen., Juneau, for appellee.\\nBefore BRYNER, C.J., and COATS and SINGLETON, JJ.\", \"word_count\": \"1004\", \"char_count\": \"6322\", \"text\": \"OPINION\\nCOATS, Judge.\\nRonald Kuvaas was convicted of robbery in the first degree in violation of AS 11.41.-500(a)(1). Because Kuvaas was in possession of a firearm during the robbery, he was subject to a presumptive sentence of seven years. See AS 12.55.125(c)(2). At the time of his robbery offense, Kuvaas was on felony probation from Oregon for theft and driving while his license was revoked. Although these offenses were felonies under Oregon law, neither is a felony under Alaska law. The sentencing Judge, Charles K. Cranston, found that Kuvaas' sentence was subject to an aggravating factor, that \\\"the defendant was on . probation for another felony charge or conviction.\\\" AS 12.55.155(c)(20). Based on this aggravating factor, Judge Cranston enhanced Kuvaas' sentence to fifteen years with seven years suspended. Judge Cran-ston placed Kuvaas on probation for five years following his release.\\nKuvaas appealed to this court arguing that Judge Cranston erred in applying the aggravating factor to him. We agreed with Kuvaas' argument that the aggravating factor only applied to crimes which had elements similar to a felony offense under Alaska law at the time the prior offense was committed. Kuvaas v. State, 696 P.2d 684 (Alaska App.1985). We therefore reversed Kuvaas' sentence and remanded for resentencing.\\nOn remand the state asked Judge Cran-ston to refer the case to a three-judge panel for resentencing. See AS 12.55.175. The state argued that it would be manifestly unjust not to consider Kuvaas' former convictions and the fact that he was on probation at the time the robbery occurred. The state also argued that there was evidence that Kuvaas had committed another armed robbery in Anchorage and that it would be manifestly unjust if the three-judge panel could not consider this information. Over Kuvaas' objections, Judge Cranston referred the case to the three-judge panel. Judge Cranston indicated that manifest injustice would result from failure to consider Kuvaas' prior convictions, the fact he was on probation at the time of the offense, his history of substance abuse problems, and the evidence that Kuvaas had committed another robbery.\\nThe three-judge panel found that Kuvaas had a substantial prior record and that Kuvaas' offenses appeared to be increasing in seriousness. The judges found that Ku-vaas had a problem with alcohol abuse which extended over thirty years and found that this reflected negatively on Kuvaas' prospects for rehabilitation. The panel did not adopt the trial court finding that Ku-vaas had committed another robbery. The panel concluded that in light of these findings the seven-year presumptive sentence would be manifestly unjust. The panel im posed a sentence of twelve years with five years suspended, and placed Kuvaas on probation for five years following his release from imprisonment.\\nKuvaas argues that since there had been no indication that his case might be referred to the three-judge panel until after his case was remanded following the sentence appeal to this court, it was illegal to refer the case to the three-judge panel. Kuvaas points out that the only argument which the state advanced at his original sentencing which could have resulted in the imposition of a sentence greater than the seven-year presumptive term was based on the aggravating factor that he was on felony probation at the time he committed the robbery. He argues that once the court of appeals found that the aggravating factor did not apply, the trial court, on remand, had no choice but to impose the presumptive sentence. He argues that imposition of a sentence greater than the seven-year presumptive term violated the prohibition against double jeopardy, violated his right to due process of law, and amounted to prosecutorial and judicial vindictiveness.\\nKuvaas' arguments are based upon cases which held that a sentence could not be increased after it was meaningfully imposed. See Shagloak v. State, 597 P.2d 142 (Alaska 1979); Sonnier v. State, 483 P.2d 1003 (Alaska 1971). We find Shagl-oak and Sonnier inapplicable. The trial court originally enhanced Kuvaas' sentence to fifteen years with seven years suspended based on the aggravating factor. When we held that the aggravating factor did not apply, the trial court referred the case to the three-judge panel based upon basically the same factors that it had used to enhance Kuvaas' sentence in the first place under the aggravating factor. The three-judge panel then imposed a sentence which was less than Kuvaas' original sentence, and the three-judge panel's sentence was based upon basically the same factors which the trial court had used to enhance Kuvaas' original sentence. We conclude that Kuvaas' sentence did not violate the prohibition against double jeopardy, did not violate his due process rights, and was not a product of prosecutorial or judicial vindictiveness.\\nKuvaas also argues that the sentence which the three-judge panel imposed was excessive. In sentencing Kuvaas, Judge Brian Shortell, speaking for the panel, found that Kuvaas had a prior record which appeared to be becoming more serious over time. Judge Shortell also found that Kuvaas had a long history of alcohol abuse and that this reflected poorly on Kuvaas' prospects for rehabilitation. See State v. Ahwinona, 635 P.2d 488, 491 n. 3 (Alaska App.1981) (history of alcohol abuse may be considered by the court in sentencing to determine a defendant's prospects for rehabilitation). The three-judge panel imposed the presumptive sentence of twelve years' imprisonment and added a suspended five years to insure that Kuvaas would be subject to probation conditions upon his release. We conclude that the findings which the three-judge panel made justify the sentence which they imposed. We conclude that the sentence was not clearly mistaken. McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974).\\nThe sentence is AFFIRMED.\"}"
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+"{\"id\": \"10415432\", \"name\": \"COMMERCIAL FISHERIES ENTRY COMMISSION, State of Alaska, Petitioner, v. Jacob BYAYUK, Respondent\", \"name_abbreviation\": \"Commercial Fisheries Entry Commission v. Byayuk\", \"decision_date\": \"1984-05-25\", \"docket_number\": \"No. 6428\", \"first_page\": \"114\", \"last_page\": \"123\", \"citations\": \"684 P.2d 114\", \"volume\": \"684\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T21:59:25.480866+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before BURKE, C.J., and RABINOW-ITZ, MATTHEWS, COMPTON and MOORE, JJ.\", \"parties\": \"COMMERCIAL FISHERIES ENTRY COMMISSION, State of Alaska, Petitioner, v. Jacob BYAYUK, Respondent.\", \"head_matter\": \"COMMERCIAL FISHERIES ENTRY COMMISSION, State of Alaska, Petitioner, v. Jacob BYAYUK, Respondent.\\nNo. 6428.\\nSupreme Court of Alaska.\\nMay 25, 1984.\\nJohn B. Gaguine, Asst. Atty. Gen., Wilson L. Condon, Atty. Gen., Juneau, for petitioner.\\nDavid B. Snyder, Carolyn Lathrop, Alaska Legal Services Corp., Dillingham, for respondent.\", \"word_count\": \"5306\", \"char_count\": \"32779\", \"text\": \"OPINION\\nBefore BURKE, C.J., and RABINOW-ITZ, MATTHEWS, COMPTON and MOORE, JJ.\\nCOMPTON, Justice.\\nThe Commercial Fisheries Entry Commission (hereafter CFEC or Commission) petitions for review from a superior court decision ordering it to allow Jacob Byayuk to submit evidence that he qualifies for income dependence points pursuant to State, Commercial Fisheries Entry Commission v. Templeton, 598 P.2d 77 (Alaska 1979), and to determine the validity of this evidence. The primary issue is whether Templeton should be applied retroactively and, if so, to what extent.\\nI. FACTUAL AND PROCEDURAL BACKGROUND\\nJacob Byayuk filed a timely application for a Bristol Bay salmon drift gill net limited entry permit with the CFEC in September 1977. He claimed twelve points on his application. On February 6, 1978, the Commission mailed a classification notice granting Byayuk six points and advising him of his right to request a hearing until March 23, 1978. Also mailed on the same day was a notice of permit denial stating that \\\"[e]ven if all of the points you claimed were verified, you would still have inadequate points to be issued an entry permit.\\\"\\nThe Commission then wrote to Byayuk on July 7, 1978 advising him of his right to submit additional evidence on his point claims pursuant to 20 AAC 05.520(d). The deadline for the submission of additional evidence was September 1, 1978. If the deadline was too burdensome for a particular individual an extension could be granted provided the person notified the CFEC pri- or to September 1 and explained the situation in writing.\\nThe Commission addressed these letters to Byayuk in care of General Delivery in Togiak. Byayuk states that he never received anything from the Commission other than a general notice of receipt of his initial application. Since he was not in Togiak during this time he alleges that the letters were either lost in the mail or never forwarded to him. In any case, he did not respond to the notices within any of the time limits set forth by the Commission.\\nOn February 14, 1979, Alaska Legal Services Corporation (hereafter ALSO) sent a letter to the CFEC on behalf of Byayuk asking for a copy of his file. A point application was attached to this letter claiming eighteen points. This point application differed from the original by requesting six additional points; three for vessel ownership and three for gear ownership. Also attached was an affidavit from Byayuk's father stating, in part, that his son was his only partner from 1965 through 1972. The Commission responded on February 23, 1979 by stating \\\"that this application must remain denied.\\\" Two alternate reasons were given; the information was submitted six months too late and, even were it timely, no new points would result.\\nALSO wrote on March 1, 1979 to request an extension of time to submit additional point claims evidence. On July 3, 1979, CFEC denied the extension request. Bya-yuk filed a request for a hearing on August 15, 1979. This request was finally denied in a letter of March 18, 1980 \\\"as not demonstrating a genuine issue in contention.\\\" This letter concluded by stating that it constituted the final action by the Commission and that Byayuk had thirty days in which to appeal. Byayuk did file a timely appeal.\\nThis court issued its decision in State, Commercial Fisheries Entry Commission v. Templeton, 598 P.2d 77 (Alaska 1979), on August 3, 1979. While Byayuk's request for a hearing did not specifically refer to Templeton, the decision did have obvious relevance to Byayuk's situation. In Templeton we held that a person who fishes as an equal partner is entitled to special circumstances points for economic dependence under 20 AAC 05.630(b)(2) even if the gear license is not in that person's name. The Commission had interpreted that regulation and the Limited Entry Act to require a gear license as a prerequisite to special circumstances points. This court affirmed the superior court decision ordering the Commission to award the contested points and a permit. In doing so we noted that \\\"the construction of the statutes and regulations that the Commission suggests works at cross-purposes with the Legislature's stated intent to avoid 'unjust discrimination.' AS 16.43.-010(a).\\\" Id. at 81.\\nAfter the CFEC denied Byayuk a hearing but prior to the superior court hearing, Byayuk requested that the CFEC stipulate to a remand for a determination on the special circumstances points pursuant to Templeton. The Commission did not so stipulate and the case subsequently went to hearing. The superior court ordered the case remanded to the CFEC to afford Bya-yuk the opportunity to submit evidence on his failure to meet the additional evidence deadline and to present evidence on his claim for income dependence points under Templeton. CFEC petitioned for review to this court which we granted on January 28, 1982.\\nThree issues are raised by the parties: (1) was there a \\\"final\\\" determination by the Commission prior to Byayuk's request for an extension of time; (2) did the Commission abuse its discretion or violate due process of law in refusing to grant the extension; and (3) should Templeton be applied retroactively and, if so, to what extent. In view of our decision on the retroactive application of Templeton we need not address the other issues.\\nII. RETROACTIVE APPLICATION OF TEMPLETON\\nIn order for Byayuk to get the benefit of partnership points it is necessary for us to find that Templeton should be applied retroactively to persons in his position. The Commission urges a prospective application, or at the most, a limited retroactive application. Templeton itself did not specifically deal with this issue beyond applying the rule to the litigants in that case.\\nThere is no rule of retroactive law carved into the United States Constitution or state constitution. We must treat each case announcing a new rule of law on the basis of the facts which are unique to it. While this might lead to some confusion and uncertainty as to subsequent cases, this individual treatment is necessary. Courts have generally tended to apply some sort of retroactivity to new rules of law. In the criminal law context, for instance, the United States Supreme Court recently stated that, subject to certain exceptions, \\\"a decision of this court construing the Fourth Amendment is to be applied retroactively to all convictions that were not yet final at the time the decision was rendered.\\\" United States v. Johnson, 457 U.S. 537, 562, 102 S.Ct. 2579, 2594, 73 L.Ed.2d 202, 222 (1982). Concerning civil cases, this court has held that retroactivity is the rule and prospectivity is the exception. See Plumley v. Hale, 594 P.2d 497, 502 (Alaska 1979) (absent special circumstances, a new rule is binding in the case before the court and in all subsequent cases in which the point in question is raised regardless of when facts leading to the case occurred).\\nWe have attempted in the past to deal with the problem of whether to apply a new rule of law prospectively or retroactively by formulating criteria by which to measure each case. Utilization of these criteria provides a framework for consistency in treatment of future cases. We have articulated a number of standards which we have incorporated into the following four criteria when dealing with retroac-tivity in the civil context: 1) whether the holding either overrules prior law or decides an issue of first impression whose resolution was not foreshadowed; 2) whether the purpose and intended effect of the new rule of law is best accomplished by a retroactive or a prospective application; 3) the extent of reasonable reliance upon the old rule of law; and 4) the effect on the administration of justice of a retroactive application of the new rule of law.\\nA. The Threshold Test\\nThe first criterion, whether the holding overrules prior law or decides an issue of first impression, serves as a threshold test to determine whether a purely prospective application of a new rule of law is even at issue. If a holding is not new in the sense described above, the question of prospectivity need not be examined further.\\nIn this instance the Templeton decision, in effect, overruled a presumptively valid regulation promulgated by the Commission. Prior to Templeton itself there were no decisions of any court which had east doubt on the validity of the regulation. Thus the rule announced in Templeton meets the threshold test and we must utilize the other criteria to resolve the issue of prospectivity. The other criteria are also relevant in deciding the extent to which a new rule should be accorded retroactivity.\\nB. Purpose and Intended Effect of Templeton\\nOnce the threshold test has been met the next step in our analysis is to determine the purpose and intended effect of the Templeton decision. This is the single most important criterion to use in determining whether to apply a new rule of law retroactively or prospectively. As we stated in Plumley v. Hale, 594 P.2d 497, 504 (Alaska 1979), \\\"[i]t is fundamental that the determination as to whether a decision will be prospectively or retroactively applied, is one guided by equitable princi-ples_\\\" (footnote omitted). The equities in these cases are largely dictated by the purpose and intended effect of the new rule.\\nThe general purpose behind the Limited Entry Act is to regulate entry into commercial fishing \\\"without unjust discrimination.\\\" The Commission achieves this end by awarding points based on the hardship to the applicant if excluded from the fishery. The Commission then determines the point level requirement based on the optimum level of use in each particular fishery. The initial point determination is to be made by weighing each applicant's hardship without unjust discrimination. Isak-son v. Rickey, 550 P.2d 359, 363 (Alaska 1976).\\nPrior to Templeton, the Commission had interpreted the Limited Entry Act as requiring actual possession of a gear license as a prerequisite to income dependence points. In reversing the Commission's interpretation, we stated in Templeton that \\\"allocating one permit between two partners solely on the fortuitous circumstances of which one held the gear license in two given years does not realistically weigh the relative hardship which each partner would suffer by denial of a permit.\\\" We therefore held that to avoid \\\"unjust discrimination\\\" the CFEC must award special circumstances points on the basis of partnership fishing.\\nOur decision in Templeton required that the Commission avoid unjust discrimination by judging all applicants by standards which accurately reflect their relative hardship. Implicit in that requirement was a finding that point allocations made according to the Commission's earlier standards were inaccurate. Thus, in denying permits in reliance on those point allocations, the Commission had not avoided \\\"unjust discrimination.\\\"\\nMoreover, as we stated in Commercial Fisheries Entry Commission v. Apoke-dak, 606 P.2d 1255,1261 (Alaska 1980), one purpose of the Limited Entry Act is to \\\"segregate hardship and non-hardship cases.\\\" In Templeton, we determined that the Commission's interpretation of the Act was contrary to that purpose. Since the bulk of the Commission's point determinations for persons who fished as partners without gear licenses were made under the Commission's previous interpretation, the purposes of the Act have already been thwarted. Licenses have already either been awarded or denied. To apply Temple-ton prospectively only will serve no purpose. Therefore, a retrospective application will best accomplish the purpose and intended effect of the Act and the rule announced in Templeton.\\nC. Reasonable Reliance\\nThe next criterion is closely related to the threshold test in substance although not in purpose. In this instance the extent of reliance on an old rule of law is used to further weigh the merits of a prospective versus a retrospective application and also to set the limits of retroactivity. In other words, rather than setting forth a determinative test, as the threshold criterion does, this criterion is used as a balancing factor.\\nAs noted earlier, the Commission's regulation was presumptively valid and there were no court decisions prior to Templeton which challenged the validity of the regulation. We find that the CFEC did reasonably rely on its partnership policy and that the new rule announced in Templeton was not clearly foreseeable. We note that this criterion is generally designed to protect persons who innocently rely on judicial or legislative law rather than agencies which rely upon their own regulation. Reasonable as its reliance was it is still arguable that the Commission is not entitled to the benefits this criterion provides in this case. Regardless, this factor is of minimal importance where the purpose and intended effect of the new rule of law clearly justifies a retroactive application. The overriding equities in favor of retroactivity clearly outweigh the agencies reliance in this instance.\\nD. Effect on the Administration of Justice\\nThe final criterion is the effect on the administration of justice of a retroactive application of the new rule. This factor is useful in determining not only whether a new rule should apply retroactively but also how far the application should extend. State v. Glass, 596 P.2d 10, 14 (Alaska 1979). .\\nThe CFEC urges that retroactive application be denied to avoid undue hardship to the administration of the limited entry system and to avoid excessive overissuance of permits. It cannot be denied that some hardship will befall the Commission if we apply Templeton retroactively. However, applicants who did not receive a permit because they fished as partners were treated unfairly and the harm to them will not be remedied if we apply the rule prospectively. As we stated in Judd v. State:\\nSince without question a value judgment is involved little can be added to the arguments presented in the cases except to say that once one realizes that any decision will involve an arbitrary classification which is not particularly defensible except in terms of its impact, then one has arrived at a starting point for making the necessary policy decisions.\\nA change in the law or the formation of a new rule will invariably lead to some inequitable results. For the following reasons we hold that a retroactive application of Templeton results in the fewest inequities.\\nThe Commission states in its-reply brief that \\\"[tjhis case suggests that [the] number [of Templeton claims] would be huge.\\\" No other information is provided articulat ing the actual number of Templeton claimants. Even assuming that there will be numerous claims and that the resolution of the claims will be time consuming, we feel the hardship to the CFEC is of secondary importance to the alternative hardship to individual fishermen. The purpose of the Commission is to regulate entry into the commercial fisheries. See AS 16.43.010. The administrative inconvenience to the Commission cannot outweigh the fundamental inequity which would result in depriving deserving claimants of limited entry permits. As we stated in Commercial Fisheries Entry Commission v. Apoke-dak, 606 P.2d 1255, 1266 (Alaska 1980), \\\"[although the purpose of promoting administrative convenience is legitimate, it cannot outweigh the important right to engage in economic endeavor, which in some cases may involve the right to employment in the industry.\\\" (Footnotes omitted).\\nFurthermore, much of the potential hardship to the CFEC could have been avoided if it had acted with due diligence when the first sign of difficulties became apparent. The superior court issued an order on April 3,1978 requiring the CFEC to give partnership points to Templeton. The Commission petitioned the supreme court for review of this order, and thereafter sent out letters to applicants announcing the 1978 period for additional point claims evidence. The CFEC, for its own protection, could have specifically requested partnership information pursuant to the lower court decision. The Commission could have waited until its review by this court was completed before making a final point determination. In this way the Commission would have been able to guard against excessive overissuance from that point.\\nA retroactive application of Templeton will not automatically lead to the issuance of permits. To receive a permit an applicant must prove partnership, income dependence, and a point total at or above the issuance level. When retroactive application of a rule leads to an automatic reversal of a prior verdict, the effect on the administration of justice is serious. On the other hand, when a new rule only results in a new trial, the foreseeable consequences are less severe. By applying Templeton retroactively, we are not requiring that the Commission automatically issue permits to applicants like Byayuk but merely that it consider their claim to partnership points.\\nThe final consideration in this area is the effect of retroactivity on persons already granted permits. If excessive overissuance is the result of our decision then persons already in the fishery may be affected. In Moore v. State, 553 P.2d 8 (Alaska 1976), we expressed concern over the effect of a decision on innocent persons. In that case we held that the state must consult with local planning agencies prior to selling offshore oil and gas leases. In deciding to adopt the new law prospectively we noted that \\\"once the disposition has occurred, the new owners or lessors also have a paramount interest in maintaining their rights to the land. We have no desire in this area, to upset settled transactions which were entered into in good faith.\\\" In Moore we were concerned with giving the public a voice in the matter but they had no definite rights over the land.\\nThe Templeton situation is easily distinguishable. The persons presently holding permits have no interest that is paramount over that of deserving Templeton claimants. In fact, the opposite is true. Many of the persons with permits would not have received one had the partnership claims initially been processed fairly. Moreover, the Commission may implement a \\\"buyback\\\" program to repurchase the excess permits under AS 16.43.310. The statuto ry \\\"buy-back\\\" provisions will also help to alleviate any inequities to those persons presently in the fishery.\\nTempleton should be applied retroactively for the above stated reasons.\\nIII. EXTENT OF RETROACTIVITY\\nHaving decided that Templeton merits retroactive application, we must now decide whether that retroactivity should be extended to final decisions. The discussion on general retroactivity is wholly applicable to this issue. In essence, fairness dictates retroactive application to final decisions. A limited retroactive application would apply to those non-gear license partners whose cases have not been finally adjudicated by the Commission or, if they have, whose cases are still pending on direct review. Because of the length of time between the enactment of the Act and the Templeton decision and because the Commission has already granted or denied the bulk of the applications, it appears likely that most fishermen who could potentially benefit from the Templeton rule would be excluded by this limitation. If so, they would be treated differently from other fishermen whose position as of January 1, 1973 was legally indistinguishable from them. This difference in treatment is unfair since it is dependent on the fortuitous fact that their cases were processed more promptly than those of their colleagues who are able to take advantage of the Templeton rule. Thus, fairness, the impelling purpose of the Templeton rule, militates in favor of retroactive application to final decisions.\\nIn this case Byayuk had filed a limited entry permit application with the CFEC prior to Templeton. We find that the Templeton rule should at least be extended to persons who have filed timely permit applications. Whether Templeton should also be extended to persons who have not applied on time is a question which is not presented here and on which we express no opinion.\\nThis decision applies to a finite, definable group of persons and it extends back to a definite date. Much of the hesitancy for applying a rule to final decisions stems from a concern that an overwhelming number of cases would be reopened. It is generally regarded as too unfair to reopen cases which are many years old and a convenient line is therefore drawn at finality. That concern is less pronounced here.\\nFinally the Commission's own interpretation of a similar court decision and its immediate response to Templeton demonstrate that the CFEC might have anticipated this holding. In Isakson v. Rickey we held that the Commission wrongfully denied the claimants in that case an opportunity to apply for a permit since they owned gear licenses for the first time subsequent to January 1, 1973. We did not specifically address the issues of retroactivity but the Commission responded by reopening the application period for Isakson claims. Similarly, when Templeton was decided the CFEC proposed regulations which allowed applicants to adjust their allocation of points according to the rule announced in that case. These regulations were to apply to past applicants who were denied permits due to inadequate points; in other words, applicants who had received a final determination. The CFEC eventually decided not to implement these regulations, but these proposals show that the Commission initially considered such retroactive application feasible.\\nIV. FAILURE TO RAISE TEMPLETON CLAIMS\\nFinally, we must determine whether Templeton should be applied retro\\u00e1etively to persons who failed to raise the issue of partnership points prior to the final decision in their cases. Byayuk did not claim partnership points in his initial application. The Commission alleges that Byayuk's application became final at the point when he failed to request a hearing. We hold that, even assuming finality in 1978, the failure to raise the Templeton issue before the Commission does not bar our consideration of it in the instant case.\\nRes judicata generally bars litigation of an issue which has already been decided or which could have been decided in a prior proceeding. Our most recent discussion of administrative res judicata was in Jeffries v. Glacier State Telephone Company, 604 P.2d 4 (Alaska 1979). We recognized in that case that res judicata is applicable to administrative adjudicative decisions but that the doctrine is often applied there with less rigidity. A case by case analysis is used to see if the application of res judicata is fair. In this case we determine that it is not.\\nIn Storrs v. Lutheran Hospitals and Homes Society of America, Inc., 609 P.2d 24, 28 (Alaska 1980), we noted that' an objection to an administrative ruling must be made to the agency to preserve the objection, \\\"at least when, as here, a complainant . has had an ample opportunity to urge his objections at the administrative level.\\\" We compared this to a situation where the party has knowledge of facts of bias on the part of an arbitrator and remains silent nonetheless. Id. at 29 n. 13. In contrast, Byayuk had no knowledge or reason to know that the CFEC's partnership policy was incorrect. Thus, we cannot realistically require him to have raised this issue.\\nEven if Byayuk had raised the issue to the CFEC the issue is not within the scope of the agency's expertise. In Templeton we specifically stated that the Commission's interpretation of the statutory scheme did not involve its particularized expertise. The concern of courts in hearing issues not raised below is that the judiciary is usurping the power of administrative agencies. That concern is irrelevant here. Courts should act when \\\"the court can reach a fully informed decision without the benefit of having the views of the agency.\\\"\\nOur decision to allow Byayuk to raise his Templeton claims is consistent with the general overriding concerns of fairness articulated throughout this opinion. As the United States Supreme Court stated in Hormel v. Helvering, 312 U.S. 552, 557, 61 S.Ct. 719, 721, 85 L.Ed. 1037, 1041 (1941):\\nRules and practice and procedure are devised to promote the ends of justice, not to defeat them. A rigid and undeviating judicially declared practice under which courts of review would invariably and under all circumstances decline to consider all questions which had not previously been specifically urged would be out of harmony with this policy.\\nWe decline in this case to follow the general rule requiring a party to raise the issue before the administrative agency.\\nWe affirm the remand to the CFEC to allow Byayuk to present evidence on his claim for income dependence points under Templeton. The portion of the order allowing Byayuk to submit evidence on his failure to meet the additional evidence deadline is vacated.\\nAFFIRMED as modified.\\n. Our decision in this case was deferred pending our determination of the constitutional issues raised in State v. Ostrosky, 667 P.2d 1184 (Alaska 1983).\\n. The 1977 application period was established under the authority of Isakson v. Rickey, 550 P.2d 359 (Alaska 1976) and pursuant to 20 AAC 05.510(f).\\n. 20 AAC 05.520(d) provides in part:\\nEvidence offered by the applicant for an entry permit will be accepted by the commission within the following time limits:\\n(3) Evidence in support of those applications which were to be submitted to the commission within the time limitations of 20 AAC 05.510(f) will be considered by the commission if received on or before September 1, 1978, unless the applicant is notified otherwise.\\n. 20 AAC 05.630(b)(2) reads as follows:\\n(2) if special circumstances exist such that an applicant's income dependence is not realistically reflected by his income dependence percentage for the years 1971 and 1972, the commission may award an applicant up to a maximum of 10 points based on a special showing of income dependence.\\n. As we recently noted in Commercial Fisheries Entry Commission v. Apokedak, 680 P.2d 486, 489 (Alaska 1984), the Commission's interpretation \\\"was in accordance with 20 AAC 05.620(1), which states that '[p]oints for income dependence will be awarded only to applicants who harvested the fishery resource commercially while participating as a gear license holder during a year in which income dependence is claimed.'\\\" In determining that the CFEC's interpretation was erroneous we implicitly overruled 20 AAC 05.620(1).\\n.The Commission claims there was a final determination on March 23, 1978, the last date to request a hearing on Byayuk's initial point classification. Since Byayuk did not timely submit additional evidence and since there was no adequate explanation for the delay in accordance with the CFEC's required criteria, Byayuk's file was never reopened according to the Commission.\\n. See United States v. Johnson, 457 U.S. 537, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982); Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965); Judd v. State, 482 P.2d 273, 276 (Alaska 1971).\\n. See Solem v. Stumes, \\u2014 U.S.-,-, 104 S.Ct. 1338, 1341, 79 L.Ed.2d 579 (February 19, 1984).\\n. See Gray v. State, 463 P.2d 897, 913 (Alaska 1970) (1) the purpose to be served by the new rule; 2) the effect on the administration of justice of a retroactive application of the new rule); Judd v. State, 482 P.2d at 278 (1) the purpose to be served by the new standards; 2) the extent of reliance by law enforcement authorities on the old standards; and 3) the effect on the administration of justice of a retroactive application of the new standards); Moore v. State, 553 P.2d 8, 28 (Alaska 1976) (To be applied prospectively: 1) the decision must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed; 2) we must evaluate the merits of retroactive or prospective application of the rule in light of its prior history, purpose and effect; 3) we must weigh the hardship and injustice of applying the rule to the litigants in the instant case); and Plumley v. Hale, 594 P.2d at 503(1) the holding is one of first impression, or overrules prior law, and was not foreshadowed in earlier decisions; 2) there has been justifiable reliance on an alternative interpretation of the law; 3) undue hardship would result from retroactive application; and 4) the purpose and intended effect of the holding is best accomplished by prospective application.)\\n. See United States v. Johnson, 457 U.S. 537, 550 n. 12, 102 S.Ct. 2579, 2587 n. 12, 73 L.Ed.2d 202, 214 n. 12 (1982) (\\\"In the civil context, in contrast, the 'clear break' principle has usually been stated as the threshold test for determining whether or not a decision should be applied non-retroactively.\\\" Citing to Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971)).\\n. The regulation at issue is 20 AAC 05.620(1).\\n. AS 16.43.010(a) provides:\\nIt is the purpose of this chapter to promote the conservation and the sustained yield management of Alaska's fishery resource and the economic health and stability of commercial fishing in Alaska by regulating and controlling entry into the commercial fisheries in the public interest and without unjust discrimination.\\nSee also, Commercial Fisheries Entry Commission v. Apokedak, 606 P.2d 1255 (Alaska 1980).\\n.Templeton, 598 P.2d at 81 (footnotes omitted).\\n. This case is very dissimilar to other cases dealing with the issue of retroactivity. Generally a new rule will have some significance to fact situations arising after the enunciation of the rule. In those cases a prospective application still serves some purpose. But where the law relates to an administrative issuance of permits to a limited number of people, and the permit issuance has, in effect, already been completed, prospective application of the rule is inequitable.\\n. 482 P.2d 273, 278 (Alaska 1971).\\n. See Rutherford v. State, 486 P.2d 946, 956-957 (Alaska 1971) (Connor, J., dissenting).\\n. Moore v. State, 553 P.2d at 28.\\n. AS 16.43.310 reads in pertinent part:\\nWhen the optimum number of entry permits is less than the number of entry permits outstanding in a fishery, the commission shall establish and administer a buy-back fund for that fishery for the purpose of reducing the number of entry permits to the optimum number .\\n.An application of a new rule of law to persons with final decisions also encompasses persons in the adjudicatory process. In view of our determination that the Templeton decision should be extended to final decisions, the issue of finality raised by the CFEC is moot; Byayuk can claim partnership points whether his case was final or not.\\n. Cf. Desist v. United States, 394 U.S. 244, 251, 89 S.Ct. 1030, 1035, 251, 22 L.Ed.2d 248, 256 (1969), rehearing denied, 395 U.S. 931, 89 S.Ct. 1766, 23 L.Ed.2d 251 (1969); State v. Glass, 596 P.2d 10, 14-15 (Alaska 1979).\\n. September 26, 1979 News Release.\\n. Jeffries, 604 P.2d at 8. See also Grose v. Cohen, 406 F.2d 823, 824-5 (4th Cir.1969); Hollywood Circle, Inc. v. Department of Alcohol Beverage Control, 55 Cal.2d 728, 13 Cal.Rptr. 104, 361 P.2d 712, 714 (1961).\\n. Templeton, 598 P.2d at 80. Of course, when Byayuk presents his Templeton claim to the Commission, the decision on whether or not to award him partnership points will involve the agency's expertise.\\n. 2 Cooper, State Administrative Law 601 (1965).\\n. This case fits squarely into the examples set forth in Board of Public Instruction v. Finch, 414 F.2d 1068 (5th Cir.1969), which demonstrate when a court will hear an appeal from an administrative agency on issues not raised below. The court will deal with an issue when the agency action is:\\n(1) in excess of statutory authority ., (2) likely to result in individual injustice ., (3) disruptive of the legislative scheme ., and (4) contrary to an important public policy extending beyond the rights of the individual litigants .\\n414 F.2d at 1073 (citations omitted). See also Myron v. Martin, 670 F.2d 49, 52 (5th Cir.1982).\\n. The other issues raised by the parties are only relevant if we decline to apply Templeton retroactively to final determinations. Since we do extend Templeton to that level, we need not address the other issues.\"}"
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+"{\"id\": \"10420148\", \"name\": \"Elizabeth FLEENER, Appellant, v. STATE of Alaska, Appellee\", \"name_abbreviation\": \"Fleener v. State\", \"decision_date\": \"1984-08-17\", \"docket_number\": \"No. A-9\", \"first_page\": \"730\", \"last_page\": \"737\", \"citations\": \"686 P.2d 730\", \"volume\": \"686\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Court of Appeals\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T23:51:03.867331+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before BRYNER, C.J., and COATS and SINGLETON, JJ.\", \"parties\": \"Elizabeth FLEENER, Appellant, v. STATE of Alaska, Appellee.\", \"head_matter\": \"Elizabeth FLEENER, Appellant, v. STATE of Alaska, Appellee.\\nNo. A-9.\\nCourt of Appeals of Alaska.\\nAug. 17, 1984.\\nFleur Roberts, Cowper & Madson, Fairbanks, for appellant.\\nCharles M. Merriner, Asst. Atty. Gen., Anchorage, and Norman C. Gorsuch, Atty. Gen., Juneau, for appellee.\\nBefore BRYNER, C.J., and COATS and SINGLETON, JJ.\", \"word_count\": \"3713\", \"char_count\": \"22581\", \"text\": \"OPINION\\nCOATS, Judge.\\nAt 5:12 a.m. on January 16, 1983, Officer Richard Gressett of the Fort Yukon Police Department received a telephone call from a woman who identified herself as \\\"Betty Fleener and/or Betty Mayo.\\\" Fleener told Gressett that she had over five pounds of marijuana in her house and that she wanted to turn herself into the police. Fleener gave Gressett the directions to her house and told him it was the \\\"last house on the street on the right before going out to the base.\\\" According to Officer Gressett, Fleener sounded agitated and near hysteria. Officers Gressett and Clark went to the Fleener residence. Gressett stated that when they arrived, he \\\"knocked on the door and heard the same nearly hysterical woman reply that she didn't want to talk\\\" to him, that she wanted him to go away. When it became apparent that Fleener was not going to let Gressett in, Gressett left Clark behind to secure the residence while he went to obtain a search warrant. After the warrant was issued, Gressett returned to the residence. Together with Officers Clark and Purcell, he discussed how they were going to execute the warrant.\\nThe officers knocked on the door twice and waited for a response. Officer Gres-sett announced \\\"It's the police.\\\" After waiting approximately a minute and getting no response, the officers forced Fleener's door open. Officer Purcell entered wearing a bullet-proof vest, followed by Officer Clark who crawled in on his hands and knees. Officer Gressett stood by the door as backup.\\nThe officers found Fleener lying on the living room floor just inside the door. Once inside, Officer Gressett informed her that they had a search warrant. Fleener had a trashbag filled with marijuana beside her. The police seized the bag of marijuana, which weighed 1,830 grams. In addition, forty-six one-quarter ounce packages of marijuana and 420 grams of hashish were found.\\nFleener subsequently filed a motion to suppress evidence based on the grounds that there was insufficient probable cause to issue the search warrant, that no showing was made that a nighttime warrant was necessary, and that the warrant was overbroad. Judge Van Hoomissen denied Fleener's motion. Following a court trial, Judge Van Hoomissen permitted Fleener to make another motion to suppress evidence based on the alleged violation of the \\\"knock and announce\\\" law. This motion was also denied.\\nJudge Van Hoomissen convicted Fleener of possession of marijuana with the intention of distributing it, in violation of AS 11.71.040(a)(2) (Misconduct Involving a Controlled Substance in the Fourth Degree). This offense is a class C felony. AS 11.71.-040(d). Fleener was sentenced to five years with three suspended and five years' probation. She appeals her conviction and sentence to this court. We affirm Fleener's conviction but reverse her sentence.\\nTHE SEARCH WARRANT\\nFleener first contends that the search warrant was not based on probable cause. The affidavit for the search warrant stated:\\nAt approx. 0512 on 1/16/83 this officer (R.E. Gressett) of the Fort Yukon Police Dept, received a call from a woman identifying herself as Betty Fleener and/or Betty Mayo stating that she had over five pounds of \\\"pot\\\" (her word) in her house and that she wished to turn herself into the police. She sounded in near hysteria as she continued on telling this officer specifically where she lived, i.e., last house on the street on the right before going out to the base.\\nThis officer arrived, knocked on the door, and heard the same nearly hysterical worn an reply that she didn't want to talk to me and to go away. (The above incident has been recorded.) At that point the local magistrate was notified.\\nFurther, Betty Mayo/Fleener was barred from the local Air Force site for purportedly distributing/selling controlled narcotic substances.\\nAdditionally, the local state trooper, Dan Hickman and myself have been aware for considerable time that Mrs. Fleener/Mayo has been in possession and/or engaged in the sale of controlled substances but have not had until now any legal recourse for a search of the premises. As to Trooper Dan Hickman's and this officer's suspicion of Betty Mayo/Fleener, numerous incidents and information gained confidentially further this officer's belief that illicit controlled narcotic substances are within above named subject's possession and/or residence.\\nThe affidavit established that a person who identified herself as Fleener called the police and admitted that she had marijuana in her house. The police went out to the described residence and the officer heard \\\"the same nearly hysterical woman reply that she didn't want to talk to me and to go away.\\\" [Emphasis added.] The police thus corroborated that the person who made the admission was the same person who was in the residence. Fleener's statement was also against her own penal inter est which itself imparts a significant element of credibility. See State v. Malkin, 678 P.2d 1356, 1359 (Alaska App.1984), petition for hr'g granted, (Alaska, May 7, 1984); Hubert v. State, 638 P.2d 677, 686 (Alaska App.1981). Given the circumstances surrounding Fleener's admission, the magistrate could reasonably find that there was probable cause to believe that Fleener possessed marijuana, as she had reported to the police. We conclude that the magistrate did not err in finding probable cause to issue the search warrant.\\nFleener next contends that it was improper for the magistrate to issue a search warrant which allowed a search to be conducted \\\"at any time of the day or night.\\\" Alaska Criminal Rule 37(a)(3)(iv) permits a magistrate to authorize a search \\\"at any time\\\" if \\\"an affiant is positive that the property is . in the place to be searched.\\\" Fleener points out that the officer who filled out the affidavit checked the box on the search warrant indicating that he had \\\"reason to believe\\\" that marijuana was present at Fleener's residence, not the box that indicated he was positive. Fleener also contends that the search of her residence was at 6:30 aim.\\nFleener's position appears to be that Officer Gressett, the officer who applied for the search warrant, needed to make a statement stronger than that he had \\\"reason to believe\\\" that the marijuana was present in order to justify a nighttime search. However, in Johnson v. State, 617 P.2d 1117, 1123 (Alaska 1980), the court indicated that the word \\\"positive\\\" in Criminal Rule 37(a)(3)(iv) should be construed to mean reasonably certain. The court also stated that an explicit statement that the affiant was positive of the whereabouts of the property was not required to authorize a nighttime search. Id. at 1124. Rather, the Johnson court looked to the explicit and detailed nature of the affidavit in concluding that reasonable certainty had been shown. Id. at 1123.\\nWe therefore apply the reasonable certainty test of Johnson to this case. As we have previously pointed out, given the circumstances of Fleener's admission to them over the phone, the police had probable cause to believe that Fleener was in possession of marijuana. When the police had been refused admission to Fleener's house, they staked out the house and immediately sought a warrant. We believe that the probable cause in this case meets the reasonable certainty standard. Furthermore, we note that there were exigent circumstances which justified the magistrate's authorization of a nighttime search. See State v. Witwer, 642 P.2d 828, 833 (Alaska App.1982). The marijuana which Fleener possessed was destructible evidence. Fleener was aware that the police knew of her possession of marijuana and that the police had staked out her residence. Given these factors, the magistrate could properly authorize a prompt nighttime search.\\nFleener also makes the argument that the warrant authorizing the search of her residence was, on its face, \\\"overbroad in its scope.\\\" Fleener contends that the warrant referred \\\"to all checks, records, ledgers and any bookkeeping material,\\\" without a showing \\\"to support a finding of probable cause that documents and records of transactions were being concealed at the premises.\\\" She also argues that the warrant did not \\\"describe with any particularity the place to be searched.\\\"\\nOfficer Gressett established probable cause to believe that Fleener was selling marijuana and that Fleener presently possessed over five pounds of marijuana in her home. We believe that these facts would establish probable cause to believe that records of drug transactions would be found in- Fleener's home. In context, the warrant authorized the officers to look for records of drug transactions. We believe that this was proper.\\nFleener also points out that the warrant authorized the police to search a residence described only as \\\"the Betty Mayo Fleener residence on 3rd Street.\\\" Fleener argues that this is not a sufficient description of the place to be searched.\\nIn Johnson v. State, 617 P.2d 1117, 1125 (Alaska 1980), the Alaska Supreme Court stated:\\nThe requirement that places to be searched be particularly described is ordinarily said to be met \\\"if the description is such that the officer with the search warrant can, with reasonable effort, ascertain and identify the place intended....\\\" Steele v. United States, 267 U.S. 498, 503, 45 S.Ct. 414, 416, 69 L.Ed. 757, 760 (1925). Technical accuracy is not required, and if there is no reasonable probability that the wrong premises will be searched, the description is sufficient. United States v. Darensbourg, 520 F.2d 985, 987 (5th Cir.1975). The burden of proof on questions pertaining to the sufficiency of a warrant description is on the challenger. [Footnote omitted.]\\nOfficer Gressett stated in his affidavit that Fleener had given him a detailed description of the location of her house:\\nShe sounded in near hysteria as she continued on telling this officer specifically where she lived, i.e., last house on the street on the right before going out to the base. [Emphasis added.]\\nA description such as this could hardly be considered inadequate in a village the size of Fort Yukon. We take judicial notice of the fact that the population of Fort Yukon is 624. Alaska Blue Book, 168 (1983).\\nFurthermore, Gressett indicated in his affidavit that he had been to the house, \\\"knocked on the door and heard the same nearly hysterical woman reply that she didn't want to talk to me and to go away.\\\" Gressett was also the officer who served the warrant. Magistrate Smyth understood that this would be the case at the time she issued the warrant.\\nGiven the size of Fort Yukon, the description of the Fleener residence in Gressett's affidavit, and Gressett's personal familiarity with the house to be searched, we conclude that the description of Fleener's house in the warrant was sufficient. There was no reasonable probability that the wrong premises would be searched. Johnson v. State, 617 P.2d at 1125.\\nKNOCK AND ANNOUNCE RULE\\nFleener next argues that the trial judge erred in denying her motion to suppress which was based on her allegation that the police violated the \\\"knock and announce\\\" requirement in executing the search warrant.\\nAlaska Statutes 12.25.100 and 12.35.040 operate jointly to establish the procedure required for the lawful execution of a search warrant. Davis v. State, 525 P.2d 541, 543 (Alaska 1974). AS 12.25.100 provides:\\nBreaking into building or vessel to effect arrest. A peace officer may break into a building or vessel in which the person to be arrested is or is believed to be, if the officer is refused admittance after he has announced his authority and purpose.\\nAS 12.35.040 provides:\\nAuthority of officer executing warrant. In the execution or service of a search warrant, the officer has the same power and authority in all respects to break open any door or window, to use the necessary and proper means to overcome forcible resistance made to him, or to call any other person to his aid as he has in the execution or service of a warrant of arrest.\\nFleener first points out that the officers did not announce their purpose before entering her residence. The \\\"knock and announce\\\" rule requires that the police announce their authority and purpose before breaking into dwellings to execute a search warrant. AS 12.25.100. Although Officer Clark testified that Officer Gressett identified the callers as the police, there is nothing in the record to indicate that the officers explained that they were there pursuant to a search warrant before forcing Fleener's door open.\\nThis issue is controlled by Lockwood v. State, 591 P.2d 969 (Alaska 1979). In Lockwood, four police officers, three of whom were in plain clothes, knocked on the door of a motel room which was to be searched pursuant to a warrant. The occupants apparently asked who was there through the closqd door. An officer responded with a ruse, stating that he was the manager. After a pause, one of the occupants peeked out of the door, at which time the officer identified himself. When the occupant attempted to close the door, the officer pushed his way into, the room. Only after the officers entered the room did they announce that they were there pursuant to a search warrant. The Alaska Supreme Court adopted the \\\"substantial compliance doctrine\\\" and held that the officers' execution of the search warrant was lawful.\\nIn Lockwood, the Alaska Supreme Court adopted two tests to determine whether an announcement of identity alone was sufficient under the \\\"knock and announce\\\" rule.\\n[Identification alone . may constitute substantial compliance \\\"only if the surrounding circumstances made the officers' purpose clear to the occupants or showed that a demand for admittance would be futile.\\\"\\n591 P.2d at 972 (quoting People v. Rosales, 68 Cal.2d 299, 66 Cal.Rptr. 1, 3, 437 P.2d 489, 491 (1968)).\\nIn analyzing the facts of Fleener's case, we conclude that Judge Van Hoomis-sen could properly have decided both that the officer's purpose in entering Fleener's residence was clear and that a demand for admittance would have been futile. Fleener was aware that the officers knew that she was in possession of over five pounds of marijuana because she had told them about the marijuana. It is also reasonable to assume that she knew that the police had staked out her residence and that they were in the process of obtaining authority to search her residence. Given these facts, it was reasonable for the trial court to conclude that Fleener knew the police were at her residence to seize marijuana and that they had now obtained lawful authority to enter. It would also be reasonable for Judge Van Hoomissen to find that the police had concluded that Fleener had refused to admit them before they entered the residence; she had earlier refused to admit them and did not respond to their knock on the door. Reviewing the testimony in the light most favorable to the state, as we are required to do since the state was the prevailing party, more than a minute may have elapsed between when the officers knocked and when they entered. Given the fact that the police knocked on Fleener's door earlier and that she was probably aware they had staked out her house, it was reasonable for the police to infer that Fleener was aware of their presence and was refusing to admit them. We conclude that Judge Van Hoomissen did not err in finding that the police entry was in substantial compliance with the \\\"knock and announce\\\" statutes.\\nFleener also argues that Judge Van Hoomissen erred in not establishing an exclusionary rule requiring the police to tape-record their entry into Fleener's residence. Fleener cites no authority which would require the police to record their service of a search warrant and we are aware of none. We find no error. See Harris v. State, 678 P.2d 397 (Alaska App.1984), petition for kr'g granted, (Alaska, May 30, 1984).\\nSENTENCE APPEAL\\nFleener was convicted, following a court trial, of Misconduct Involving a Controlled Substance in the Fourth Degree, a class C felony. AS 11.71.040(a)(2), (d). Judge Van Hoomissen sentenced Fleener, a first offender, to five years' imprisonment with three suspended, and five years' probation. Fleener appeals this sentence as excessive, based on this court's decisions in Austin v. State, 627 P.2d 657 (Alaska App.1981), and Poggas v. State, 658 P.2d 796 (Alaska App.1983).\\nUnder Austin, it is clear that Fleener's sentence should not exceed the two-year presumptive sentence for a second felony offender convicted of a class C felony, AS 12.55.125(e)(1), unless her case can be classified as an exceptional one. 627 P.2d at 658. Furthermore, in Poggas, we noted that the supreme court had \\\"established a maximum sentence of three years' imprisonment for major commercial dealers in marijuana at least as long as the offense is not aggravated by a significant criminal record or another similarly significant aggravating factor.\\\" 658 P.2d at 797.\\nThe supreme court eases which established a three-year maximum sentence for major commercial dealers involved considerably greater amounts of marijuana than is involved in Fleener's case. In Snyder v. State, 585 P.2d 229, 234 n. 14 (Alaska 1978), Snyder was engaged in a major commercial transaction where the street value of the marijuana was established at $113,-000. The supreme court recommended that Snyder not be sentenced to more than three years' imprisonment. Kelly v. State, 622 P.2d 432 (Alaska 1981) (consolidated appeal reviewing sentences, including Snyder's, for drug sale convictions). In Wolfe v. State, 553 P.2d 472, 473 n. 4 (Alaska 1976), Wolfe was also a major commercial dealer who had made two trips outside to import ninety pounds of marijuana. The supreme court approved a sentence of five years with two suspended for Wolfe.\\nThe kind of marijuana dealing which Fleener was doing appears to be more similar to the dealing in Poggas than to the major commercial dealing which Snyder and Wolfe were engaged in. The evidence showed that Fleener admitted supporting herself selling marijuana and was apprehended in possession of about five pounds of marijuana. Poggas was convicted of selling approximately five and one-half pounds of marijuana worth $3,680. 658 P.2d at 796. Winfield, whose case was consolidated with Poggas' case, was convicted of selling six pounds of marijuana for $3,000. Id. at 797. Neither Poggas nor Winfield had significant criminal records. Id. at 796-97. Fleener also has no significant prior criminal record.\\nWe conclude that Fleener's case is in a less serious category than Snyder and Wolfe where sentences of three years' imprisonment were approved. Her case, in general, appears to be much more like the cases of Poggas and Winfield where a two-year sentence would be the maximum sentence. See Poggas, 658 P.2d at 798. However, we do note that Fleener did admit to selling cocaine in addition to selling marijuana and this is a factor which Judge Van Hoomissen emphasized in imposing sentence. We believe that this factor would justify the court in giving a slightly greater sentence than the two-year sentence which we approved in Poggas. However, we do not believe that Fleener, if her probation is later revoked, should be subject to greater than the three-year period of incarceration which the supreme court set as a maximum in Snyder. Therefore, we conclude that Fleener's sentence should not have been greater than three years with one year suspended.\\nThe conviction is AFFIRMED. The sentence is REVERSED.\\n. The search warrant itself indicates that it was served at 6:30 a.m. on January 16, 1983. However, the magistrate stated on the record that it was 8 a.m. [on January 16, 1983] when she started to hear testimony to determine whether to issue the search warrant. The state never argued below that the search warrant was not served in the nighttime and the trial court appears to have decided the case on the assumption that the warrant was served before 7 a.m. We normally do not resolve on appeal a contested factual issue which the trial court has not addressed. Wortham v. State, 641 P.2d 223, 225 (Alaska App. 1982). For purposes of this opinion, we therefore assume that the search warrant was served at 6:30 a.m. on January 16, 1983.\\n. \\\"The affidavit is satisfactory if the magistrate could, after reviewing the facts contained therein, be reasonably certain that the items to be seized are at the location to be searched.\\\" State v. Witwer, 642 P.2d 828, 833 (Alaska App.1982).\\n. Alaska Rule of Evidence 201 provides: Judicial Notice of Fact.\\n(a) Scope of Rule. This rule governs only judicial notice of facts. Judicial notice of a fact as used in this rule means a court's on-the-record declaration of existence of a fact normally decided by the trier of fact, without requiring proof of that fact.\\n(b) General Rule. A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within this state or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.\\n(c) When Discretionary. A court may take judicial notice as specified in subdivision (b), whether requested or not.\\n(d)When Mandatory. Upon request of a party, the court shall take judicial notice of each matter specified in subdivision (b) if the requesting party furnishes sufficient information and has given each party notice adequate to enable the party to meet the request.\\n. In Johnson v. State, 617 P.2d 1117, 1125 (Alaska 1980), the court upheld a warrant which contained an inaccurate description of the place to be searched where the officer who served the warrant \\\"was personally familiar with the house to be searched since he had kept watch on it in the past.\\\"\\n. Fleener's motion to suppress on this ground was brought after trial. Fleener argued that the motion could not have been brought sooner because she did not have sufficient information due to the state's failure to provide proper discovery. Judge Van Hoomissen apparently decided this issue on the merits. On this record it is reasonable to assume that Judge Van Hoomis-sen found that Fleener had an adequate excuse to bring the motion after trial. We accordingly believe that we should resolve this issue on the merits.\"}"
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+"{\"id\": \"10427842\", \"name\": \"Roger A. McSHEA and A. Lee Petersen, Appellants, v. STATE of Alaska, DEPARTMENT OF LABOR, Workers' Compensation Board, and Virgil C. Mays, Appellees\", \"name_abbreviation\": \"McShea v. State, Department of Labor\", \"decision_date\": \"1984-07-06\", \"docket_number\": \"No. S-69\", \"first_page\": \"1242\", \"last_page\": \"1248\", \"citations\": \"685 P.2d 1242\", \"volume\": \"685\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T19:33:54.950952+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before BURKE, C.J., and RABINOW-ITZ, MATTHEWS, COMPTON and MOORE, JJ.\", \"parties\": \"Roger A. McSHEA and A. Lee Petersen, Appellants, v. STATE of Alaska, DEPARTMENT OF LABOR, Workers\\u2019 Compensation Board, and Virgil C. Mays, Appellees.\", \"head_matter\": \"Roger A. McSHEA and A. Lee Petersen, Appellants, v. STATE of Alaska, DEPARTMENT OF LABOR, Workers\\u2019 Compensation Board, and Virgil C. Mays, Appellees.\\nNo. S-69.\\nSupreme Court of Alaska.\\nJuly 6, 1984.\\nRoger A. McShea, pro se.\\nA. Lee Petersen, pro per.\\nLarry D. Wood, Asst. Atty. Gen., Fairbanks, and Norman C. Gorsuch, Atty. Gen., Juneau, for appellee Workers\\u2019 Compensation Board.\\nVirgil C. Mays, pro se.\\nBefore BURKE, C.J., and RABINOW-ITZ, MATTHEWS, COMPTON and MOORE, JJ.\", \"word_count\": \"3161\", \"char_count\": \"19446\", \"text\": \"ORDER\\nPER CURIAM.\\nThe Alaska Workers' Compensation Board and the superior court have both refused to enforce a 33\\u215b% contingent-fee agreement between compensation claimant Virgil Mays and attorneys Roger McShea and A. Lee Petersen. We affirm.\\nI.\\nAfter teaching carpentry in the Fairbanks school system for several years, Virgil Mays developed a lung disease and retired in 1978. His permanent total disability claim against the Fairbanks North Star Borough School District was denied and dismissed by the Alaska Workers' Compensation Board. When his counsel withdrew from the case, Mays hired attorney McShea, who later arranged for attorney Petersen to assist on an appeal to superior court. Mays and McShea signed a \\\"Professional Employment Contract,\\\" which recited that McShea would receive 50% of any recovery obtained.\\nOn appeal, the superior court reversed the Board's denial of compensation for permanent total disability and remanded to the Board. Believing that the Board was primarily responsible for awarding attorney's fees, the superior court awarded $200 in nominal fees for the appeal and $934.58 in costs. Before the hearing mandated by the remand could take place, the parties set- tied. McShea and Petersen agreed to reduce their contingent fee from 50% to 33\\u215b% of Mays' recovery. The School District's compensation carrier agreed to pay a total of $80,000 to Mays and his attorneys. Under the terms of the proposed distribution, then, Mays was to receive $53,333 and the attorneys $26,667.\\nBut the Alaska Workers' Compensation Board must receive copies of all settlements, AS 23.30.012, and the parties' attorney's fees arrangements were subject to Board approval. AS 23.30.145, AS 23.30.-260. In this case the Board reacted to the $26,667 attorney's fees claim with some skepticism. Though a Board member noted that \\\"Mr. McShea has made a very detailed elaboration of the troubles he's had in this case\\\" and that the contingent fee agreements were in the record, the same Board member explained that further documentation was necessary:\\nWith respect to the attorneys' fees issue, the Board has been receptive to Mr. McShea's arguments. However, we feel that we would like to have a more detailed accounting of the amount of time and particularly the expenses that were expended by Mr. McShea and his co-counsel in the case, Mr. Peterson, [sic] before we can approve an attorney's fee of $26,-000 plus in this case . [T]he decision on the attorney's fee issue in terms of the exact dollar amount of the proceeds to be appropriated to the attorneys' fees will be reserved pending receipt from Mr. McShea of an accounting sheet to give us an idea of what is a reasonable attorneys' fee in light of the size of the claim, the problems that you've had and so forth _ AS 23.30.145 discusses reasonable attorneys' fees and the leeway that the Board has in awarding attorney fees on the basis of reasonableness, and that's what we would like to see.\\n. [A]ll we are asking for is an idea of the amount of time and frustration, whatever, that you put into this case in terms of the size of the award that you've requested. It is not our intention to approve a one-third contingency fee per se, and that is the reason we are asking for this accounting sheet.\\nThe Board also explained that it could not award fees for services performed at the superior court level. McShea and Petersen promised to submit the necessary information \\\"by this time next week . \\\"\\nAlmost three months later, the Board decided not to wait any longer for the attorneys to do what they had promised. Perhaps referring to conversations that had taken place off the record, the Board described the evidence before it as follows:\\nMcShea admitted that the Superior Court had awarded Mr. Peterson attorney fees following the appeal but he could not give the specific amount of the Superior Court's award. Furthermore, when questioned by the Board regarding the total hours invested by both Petersen and himself on the claim McShea was unable to respond with specifics. Instead he submitted two professional employment contracts, signed by the employee, which purport to outline the fee arrangement governing the relationship between the employee and his attorneys\\nMcShea was given 10 days to submit a memorandum detailing his efforts on behalf of the employee and justifying a fee of one-third of the settlement award. The Board specifically directed McShea's attention to AS 23.30.145 and requested that he address that section in making his plea for approval of the fee arrangement.\\nThe Board has received nothing from McShea or Petersen since then, despite the fact that the record has been left open without objection.\\nBased on the record, we find no support for an award of attorney's fees in excess of the minimum provided for in AS 23.30.145(a). Accordingly, we conclude that an award of statutory minimum fees under AS 23.30.145(c) is both reasonable and proper.\\nMcShea and Petersen thus received $8,150, the statutory minimum. They did not appeal. Instead, they filed a \\\"Motion for Reconsideration,\\\" which the Board treated as a petition for modification of award submitted pursuant to AS 23.30.-130. Doubting that it had made a \\\"mistake in its determination of a fact,\\\" the Board denied the petition. Again, the attorneys failed to appeal. Two months after the Board rejected their petition, they filed an \\\"Application for Modification of Decision and Order,\\\" this time explicitly relying on AS 23.30.130. Again, the Board was unimpressed:\\nAttorneys argue that the Board erred in a determination of fact in awarding only minimum statutory attorney's fees in its Decision and Order . In particular attorneys argue that \\\"extensive\\\" testimony was presented at the hearing . to substantiate an award of attorney's fees in excess of the statutory minimum including evidence of the difficulty of this case, the involvement of two attorneys, the requirement of the taking of an appeal, the requirement of a major deposition trip, and the difficulty of working with the client including the client's failure to appear for scheduled hearings. Attorneys further argue that the Board erred in failing to consider additional evidence of attorneys' involvement in this claim submitted with attorneys' original motion for reconsideration\\nThe Board rejects this claim of error. Under AS 23.30.145(a) the Board, in determining the amount of attorney's fees to be awarded, must take into consideration \\\"the nature, length and complexity of the services performed, transportation charges, with [sic: should be \\\"and\\\"] the benefits resulting from the service to the compensation beneficiaries.\\\" The Board has reviewed the evidence presented at the hearing . and finds, having considered the criteria contained in AS 23.-30.145 for awarding attorney's fees in excess of the statutory minimum, that it did not err in its determination of fact in awarding the statutory minimum attorney's fees. The Board's request for further evidence by attorneys to substantiate an award in excess of the statutory minimum at the hearing . was based upon a finding that insufficient evidence had been presented at that time to justify such an award. The Board specifically indicated that it would not award attorney's fees based on the contingent fee agreement entered into between employee and his attorneys. The Board finds that it did not err in this determination. The subsequent failure of attorneys to present further evidence in a timely manner to substantiate an award in excess of the statutory minimum precludes a modification of the . Decision and Order.\\nThe Board also reiterated its position that it could not award attorney's fees for work done before the superior court.\\nMcShea and Petersen then filed an appeal. The superior court found that the Board's award of $8,150 for work done at the administrative level was correct, but modified its own earlier award of $200 in fees for the successful appeal, granting McShea and Petersen an additional $7,800 for their appellate work. Like the Board, the superior court refused to rely on the contingent-fee agreement between Mays and the attorneys. Its award was based on a bill of costs and fees which the attorneys had filed just after the remand. The attorneys have now appealed to this court.\\nII.\\nAt the outset we again note that the attorneys do not bring this appeal from the Board's original decision fixing attorney's fees. As indicated earlier, the attorneys failed to appeal from the Board's attorney's fees determination. Thus, this appeal is limited to the Board's denial of the attorneys' application for a modification of the Board's original order. To prevail against the Board, the attorneys must show that the Board abused its discretion by refusing to correct a mistake of fact. If substantial evidence in the record supports the Board's decision not to modify its award, we will not disturb that decision. See Interior Paint Co. v. Rodgers, 522 P.2d 164 (Alaska 1974). The attorneys argue that the Board's original decision rested on two mistakes of fact. We disagree.\\n\\\"It appears,\\\" the attorneys assert, \\\"that the board awarded only a minimum fee because it was under the misconception that the [superior] court had awarded an attorneys' fee.\\\" As support for their interpretation of the Board's award, the attorneys rely on one sentence in one of the Board's decisions:\\nMcShea admitted that the Superior Court had awarded Mr. Petersen attorneys' fees following the appeal but he could not give the specific amount of the Superior Court's award.\\nWe note that McShea and Petersen are not arguing that the superior court failed to award Petersen attorney's fees. Nor do they claim that McShea was in fact able to tell the Board how much Petersen had received. Instead, their argument rests on the assumption that the Board would have awarded more than minimum attorney's fees had it known that the superior court's original award had been only $200. This assumption is incorrect. A review of the record shows that the Board did not believe that it could award attorney's fees for work done before the superior court and that McShea and Petersen had failed to distinguish between work done at the appellate and the administrative levels. Its inquiry about the superior court's award, then, was part of an attempt to establish how much work had been done before the superior court, so that it would not award compensation for that work. There was no \\\"mistake of fact\\\" here.\\nMcShea and Petersen also argue that the Board was factually mistaken when it asserted that there was no support in the record for awarding more than minimum fees. Characterizing this conclusion as a \\\"mistake of fact\\\" is quite difficult, and the attorneys' attempt to do so is not persuasive. What they are actually objecting to is the Board's insistence on documentation of their time, and the Board's refusal to base its fee award on the contingent-fee contract. The Board's decision on this point was legal, not factual. Under the terms of the modification statute, the Board's refusal to modify its award was justified.\\nEven though the issue is not properly before us, we offer the following observations regarding the determination of reasonable compensation for legal services rendered to claimants. AS 23.30.145(a) provides in part that:\\nFees for legal services rendered in respect to a claim are not valid unless approved by the board, and fees may not be less than 25 per cent on the first $1,000 of compensation or part of the first $1,000 of compensation, and 10 per cent of all sums in excess of $1,000 of compensation . In determining the amount of fees the board shall take into consideration the nature, length and complexity of the services performed, transportation charges, and the benefits resulting from the services to the compensation beneficiaries.\\nSubsection (c) of AS 23.30.145 further provides that:\\nIf 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. The fees are in addition to compensation or medical and related benefits ordered and shall be paid as the court may direct.\\nIn Wien Air Alaska v. Arant, 592 P.2d 352, 365-66 (Alaska 1979), we noted that \\\"AS 23.30.145 seeks to insure that attorney's fee awards in compensation cases are sufficient to compensate counsel for work performed. Otherwise, workers will have difficulty finding counsel willing to argue their claims.\\\" (Footnote omitted). Regarding the role of the superior court in determining attorney's fees in a compensation appeal, we said:\\nThe Superior Court's fee award for the appeal should provide for realistic compensation, taking into account the same factors that the Workmen's Compensation Board considers when it grants attorney's fees for non-controverted claims: \\\"the nature, length and complexity of the services performed, transportation charges, and the benefits resulting from the services to the compensation beneficiaries.\\\"\\n592 P.2d 352 at 366 (footnote omitted). The Board's belief that it lacked the authority to award fees for appellate work is not directly challenged in this appeal and thus we need not decide whether the Board's reading of AS 23.30.145 is correct. Nevertheless, we note that in light of the foregoing it is not self-evident that the Board was mistaken in its belief.\\nWith these considerations in mind we turn to the attorneys' last contention, that the superior court abused its discretion by refusing to raise the total attorney's fee award to $26,667. Because the contingent-fee agreement was not controlling, the superior court properly looked to the bill of fees and costs which attorney Petersen had submitted for his earlier work. Given the attorneys' failure to establish that the Board should have modified its award, the superior court's refusal to award more than the fees the attorneys had already asked it to award was neither arbitrary nor capricious.\\nAFFIRMED.\\n. The transcript of the original hearing does not directly establish three facts referred to by the Board \\u2014 McShea's \\\"admission\\\" about appellate fees, his failure to specify total hours worked, and the 10-day period during which McShea and Petersen were to submit a fee memorandum. The transcript does, however, refer to extensive off-the-record discussions between the Board and the attorneys. McShea and Petersen do not claim that any of these factual assertions are false. Nor do they argue that off-the-record discussions should not have been considered by the Board and should not be considered by reviewing courts.\\n. Under AS 23.30.145, the minimum attorney's fee is $250 for the first $1,000 of a compensation award and 10% of any additional amount.\\n. At the time, the Board's regulations provided for rehearings, 8 AAC 45.150, but grounds for rehearing were limited to \\\"newly discovered evidence which could not with reasonable diligence have been produced at the prior hearing,\\\" and the attorneys did not try to invoke it. AS 23.30.130(a), the statute under which the Board considered the attorneys' motion for reconsideration, provides in pertinent part:\\nUpon its own initiative, or upon the application of any party in interest on the ground of a change in conditions . or because of a mistake in its determination of a fact, the board may, before one year after the date of the last payment of compensation, whether or not a compensation order has been issued, or before one year after the rejection of a claim, review a compensation case in accordance with the procedure prescribed in respect of claims in AS 23.30.110. In accordance with AS 23.30.110 the board may issue a new compensation order which terminates, continues, reinstates, increases, or decreases the compensation, or award compensation.\\nThis statute clearly applies to compensation awards. The fact that it applies to grants of attorney's fees is much less obvious. Nevertheless, none of the parties has objected to the Board's decision to use the modification statute. In a comprehensive revision of its regulations the Board has enacted a new 8 AAC 45.150, which much more explicitly allows petitions to modify \\\"board orders.\\\"\\n. In its decision the Board stated in part:\\nWe perceive from [AS 23.30.260] . an intention on the part of the legislature that fees for services performed before the Board are to be referred to the Board for approval while fees for services performed in court are to be referred to the court.\\nWe conclude, therefore, the Board has no authority to award attorney's fees for appellate work. The award of the statutory minimum attorney's fees of $8,150.00 was based solely on the attorneys' efforts in representing employee's interest before the Board; it is not to be construed as compensation for any efforts expended on employee's behalf for the taking of an appeal in this action.\\n. In its decision the superior court said in part:\\nIn this case, counsel submitted a bill of costs on March 31, 1981 for the prior Superi- or Court proceedings. Total costs and fees for the first appeal totalled $8,934.58. This court awarded $200 in nominal fees and full costs in the amount of $934.58 on the apparently mistaken assumption that the Board on remand, would compensate counsel appropriately for prosecuting the successful appeal. Since the Board declined to award fees for the appeal, this court hereby modifies its previous fee award.\\nThe attorney's fees for work done before the Superior Court are increased from $200 to $8,000. This amount is in addition to the Board's award of $8,150. Since counsel were already awarded $200 in fees by this court, counsel are entitled to a net increase in fees of $7,800, to be paid out of the Compromise and Settlement money currently on deposit in appellant McShea's trust account. The balance of the Compromise and Release funds are to be paid out to the employee, Mr. Virgil Mays.\\n. In the Arant case we remanded to the Superi- or Court with directions that it remand to the Board for a determination of attorney's fees. We also said that '[t]he Superior Court shall make its determination of the fees to be granted because of the appeal after the Workmen's Compensation Board makes its fee award.\\\" See also Rose v. Alaskan Village, Inc., 412 P.2d 503, 508-10 (Alaska 1966); M-B Contracting Company v. Davis, 399 P.2d 433, 436 (Alaska 1965).\\n. Neither the case authority alluded to nor the provisions of AS 23.30.145 explicitly preclude the Board from awarding attorney's fees for services rendered to claimants in conjunction with proceedings before the superior court or this court. Nor do these authorities explicitly speak to the question of whether the Board retains the residual authority to review an overall attorney's fee award in the context of a Board decision which has undergone appellate review. We leave the resolution of these questions for a more appropriate occasion.\"}"
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+"{\"id\": \"10429415\", \"name\": \"Victor BURGESS, Glen Douglas, Dean Edenshaw, Percy Frisby, Hydaburg Cooperative Association, Albert Natkong, Don Natkong and Robert Sanderson, Appellants, v. ALASKA LIEUTENANT GOVERNOR TERRY MILLER, Appellee\", \"name_abbreviation\": \"Burgess v. Alaska Lieutenant Governor Terry Miller\", \"decision_date\": \"1982-11-05\", \"docket_number\": \"No. 6915\", \"first_page\": \"273\", \"last_page\": \"277\", \"citations\": \"654 P.2d 273\", \"volume\": \"654\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T18:08:40.349468+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before BURKE, C.J., and RABINOWITZ, CONNOR, MATTHEWS and COMPTON, JJ.\", \"parties\": \"Victor BURGESS, Glen Douglas, Dean Edenshaw, Percy Frisby, Hydaburg Cooperative Association, Albert Natkong, Don Natkong and Robert Sanderson, Appellants, v. ALASKA LIEUTENANT GOVERNOR TERRY MILLER, Appellee.\", \"head_matter\": \"Victor BURGESS, Glen Douglas, Dean Edenshaw, Percy Frisby, Hydaburg Cooperative Association, Albert Natkong, Don Natkong and Robert Sanderson, Appellants, v. ALASKA LIEUTENANT GOVERNOR TERRY MILLER, Appellee.\\nNo. 6915.\\nSupreme Court of Alaska.\\nNov. 5, 1982.\\nWalter T. Featherly, III, Roberts & She-felman, Anchorage, for appellants.\\nLaura L. Davis, Asst. Atty. Gen., and Wilson L. Condon, Atty. Gen., Juneau, for appellee.\\nBefore BURKE, C.J., and RABINOWITZ, CONNOR, MATTHEWS and COMPTON, JJ.\", \"word_count\": \"2362\", \"char_count\": \"14627\", \"text\": \"OPINION\\nRABINOWITZ, Justice.\\nIn May 1981, Terry Miller, Lieutenant Governor of Alaska, prepared an initiative petition entitled \\\"Personal Consumption of Fish and Game\\\" which included the following summary:\\nThis proposal would, for fishing, hunting, or trapping for personal consumption, prevent classification of persons on the basis of economic status, land ownership, local residency, past use or dependence on the resource, or lack of alternative resources. It would, as does the existing law, also bar classifications by race or sex for any taking of fish or game. It repeals existing provisions of the Fish and Game code, which provide for, or relate to, subsistence hunting and fishing.\\nIn March 1982, after the requisite number of qualified signatures had been obtained and the petition had been filed by the initiative sponsors, the lieutenant governor notified the sponsors that the proposed law would be placed on the November 1982 general election ballot.\\nOn April 9, 1982, appellants filed a complaint against the lieutenant governor in superior court alleging that the summary in the initiative petition was misleading and biased in favor of the proponents of the initiative because it stated that the proposed bill \\\"would . prevent classification of persons on the basis of . local residency, past use or dependence on the resource, or lack of alternative resources\\\" when in fact the bill would not prevent enforcement of a federal law classifying persons on the basis of those criteria. Appellants sought a ruling declaring the initiative petition invalid as well as an injunction preventing the lieutenant governor from preparing and placing on the general election ballot a ballot title and proposition based on the proposed bill. After cross-motions for judgment on the pleadings had been filed, the superior court entered a Memorandum of Decision and Order in which it granted the state's motion. In its decision, the superior court stated among other things that:\\n[T]he question this court must decide is not whether the petition summary or the ballot summary state the effect of a proposed law, but rather whether the summary accurately states the subject matter of the proposed law, fairly and impartially. AS 15.45.090(2), 15.45.180.\\nIt may well be that adoption of the initiative by the voters in the November general election will result in imposition of subsistence preference for fish and game on all federal land in Alaska. The initiative does not and cannot speak to that issue. What it can and does speak to is the matter of subsistence classification on state land and I find that the summary fairly and accurately states the subject matter of the proposed law.\\nThis appeal followed.\\nArticle XI, section 3 of the Alaska Constitution provides that the lieutenant governor shall include a \\\"summary of the subject matter\\\" of the proposed bill in the initiative petition. AS 15.45.090 provides that this summary shall be \\\"impartial.\\\" If the completed petition is accepted by the lieutenant governor, article XI, section 4 of the constitution provides that the \\\"lieutenant governor shall prepare a ballot title and proposition summarizing the proposed law, and shall place them on the ballot . \\\" AS 15.45.180 provides that the proposition \\\"shall, in not more than 100 words, give a true and impartial summary of the proposed law.\\\"\\nThis appeal raises a question of first impression for this court regarding the adequacy of an initiative petition summary and ballot proposition. In regard to issues of this character, the Supreme Court of Colorado states that an initiative summary must be\\na fair, concise, true and impartial statement of the intent of the proposed measure. The summary may not be an argument for or against the measure, nor can it be likely to create prejudice for or against the measure.\\nThe Arkansas Supreme Court holds that ballot titles (the Arkansas term for summaries) should be\\ncomplete enough to convey an intelligible idea of the scope and import of the proposed law, and that it ought to be free from any misleading tendency, whether of amplification, of omission, or of fallacy, and that it must contain no partisan coloring.\\nWe believe that these authorities identify the appropriate criteria for us to use in determining whether the lieutenant governor's summary in the case at bar conforms with the constitutional and statutory requirements of an impartial and truthful summary. In conducting this inquiry, we will utilize a deferential standard of review. The burden is upon those attacking the summary to demonstrate that it is biased or misleading.\\nThe primary emphasis of appellants' argument is that the lieutenant governor's summary exaggerates the basic purpose of the proposed legislation. Appellants complain that the summary includes a \\\"false\\\" statement that the proposed bill would eliminate all subsistence hunting preferences in Alaska when in fact the bill would not, and was not intended to, eliminate the federal subsistence preference.\\nThe lieutenant governor is not under an obligation to assume that every reader of the petition or ballot summary will take the wording of the summary at precisely its dictionary value. He is entitled to rely on the premise that readers of the summary understand that in the absence of explicit language to the contrary, state initiatives are intended to change state law and bind the state government, not federal law and the federal government. Even under the circumstances of this case, the Alaska Constitution and the state electoral laws do not require the lieutenant governor to give, \\\"special\\\" reminders to the voters regarding the scope of a state initiative.\\nAppellants also argue that the summary is invalid because it attempts to state what the effect of the proposed bill would be, i.e., \\\"[t]his proposal would . prevent classification of persons .\\\" (emphasis furnished). Statements regarding a proposed bill's effect, they assert, are generally barred from petition and ballot summaries because of the bias they may introduce into the initiative process.\\nIn the instant case, the summary's prediction (assuming it can be fairly characterized as such) as to the proposed bill's effect is amply supported by the text of the bill. In our view, applying the previously stated criteria, the summary's use of the language \\\"would prevent\\\" is neither misleading nor inaccurate.\\nThe superior court's decision, as it relates to the impartiality and accuracy of the lieu tenant governor's petition and ballot summary, is AFFIRMED.\\n. There are several steps in the Alaska initiative process. The proponents of the initiative must first file an application with the lieutenant governor. Alaska Const, art. XI, \\u00a7 2; AS 15.-45.020. If the application is certified, the lieutenant governor must prepare a petition containing, among other things, a summary of the subject matter of the proposed bill. Alaska Const, art. XI, \\u00a7 3; AS 15.45.090. If the petition is signed within one year by \\\"qualified voters equal in number to 10 per cent of those who voted in the preceding general election and resident in at least two-thirds of the election districts of the state,\\\" it may be filed with the lieutenant governor. Alaska Const, art. XI, \\u00a7 3; AS 15.45.140. The lieutenant governor then prepares a ballot title and proposition summarizing the proposed law and places them on the ballot for the first statewide election held more than one hundred twenty days after adjournment of the legislative session following the filing. Alaska Const, art. XI, \\u00a7 4; AS 15.-45.180-190. Any person aggrieved by a determination made by the lieutenant governor may bring an action in superior court within thirty days of the date on which notice of the determination was given. AS 15.45.240.\\nThe initiative in question reads as follows:\\nAN INITIATIVE\\nFor an Act entitled: \\\"An Act relating to individual equality for personal consumptive users of fish and game, and to repeal existing laws relating to subsistence use of fish and game.\\\"\\nBE IT ENACTED BY THE PEOPLE OF THE STATE OF ALASKA:\\n*Section 1. AS 16.05 is amended by adding a new section to read:\\nSection 16.05.907. HUNTING, FISHING AND TRAPPING.\\n(a) This section may be cited as the Alaska Anti-Discrimination Hunting, Fishing and Trapping Rights Act.\\n(b) There shall be no discrimination in the allocation of fish or game based on race or sex.\\n(c) Fish and wildlife are reserved to all the people of the state for common use. These resources should be equally available to personal consumptive users of all fish or game, and no distinctions shall be made for the reason of economic status, land ownership, local residency, past use or past dependence on the resource, or lack of alternative resources.\\n(d)The Board of Fisheries and the Board of Game may adopt regulations providing for and distinguishing between commercial fishing, sport fishing, hunting and trapping.\\n* Section 2. AS 16.05.090(c), AS 16.05.094, AS 16.05.251(b), AS 16.05.255(b), AS 16.05.-257, AS 16.05.930(e), AS 16.05.940(17), AS 16.05.940(26), and AS 16.05.940(27) are repealed.\\n* Section 3. If any provision of this Act or the application thereof to any person or circumstances is held invalid, such invalidity shall not affect other provisions or applications thereof.\\n. Section 804 of the Alaska National Interest Lands Conservation Act (ANILCA) provides: PREFERENCE FOR SUBSISTENCE USES\\nExcept as otherwise provided in this Act and other Federal laws, the taking on public lands of fish and wildlife for nonwasteful subsistence uses shall be accorded priority over the taking on such lands of fish and wildlife for other purposes. Whenever it is necessary to restrict the taking of populations of fish and wildlife on such lands for subsistence purposes in order to protect the continued viability of such populations, or to continue such uses, such priority shall be implemented through appropriate limitations based on the application of the following criteria:\\n(1) customary and direct dependence upon the populations as the mainstay of livelihood;\\n(2) local residency; and\\n(3) the availability of alternative resources.\\nSubsection 805(d) of ANILCA provides that the federal government will not move to implement Section 804 on public lands outside national parks and monuments so long as the State of Alaska maintains a subsistence preference program that complies with the requirements set forth in \\u00a7 805(a)-(c). 16 U.S.C.A. \\u00a7 3114, 3115 (West Supp. 1975-1981).\\n. Appellants request this court to reverse the superior court, invalidate the initiative petition, and enjoin the lieutenant governor from placing the question of the proposed law on the November ballot. Alternatively, appellants request that the court revise the ballot proposition.\\n. The state has indicated that the lieutenant governor plans to use the text of the petition summary for the ballot proposition.\\n. In re Second Initiated Constitutional Amendment Respecting the Rights of the Public to Uninterrupted Service by Public Employees of 1980, 613 P.2d 867, 869 (Colo.1980).\\n. Hope v. Hall, 229 Ark. 407, 316 S.W.2d 199, 201 (1958). The Supreme Judicial Court of Massachusetts has defined a summary in the following manner:\\nA summary is an abridgement, abstract, compendium, or epitome. The word carries with it the idea that, however much the subject matter may be condensed, the sum and substance of it must remain. No doubt details may be omitted or in many instances covered by broad generalizations, but mention must be made of at least the main features of the measure. And the summary must be \\\"fair\\\"; that is to say, it must not be partisan, colored, argumentative, or in any way one-sided, and it must be complete enough to serve its purpose of giving the voter who is asked to sign a petition or who is present in a polling booth a fair and intelligent conception of the main outlines of the measure. It must do more than merely indicate the field of human or governmental activity within which the measure falls. It must go beyond what would serve as the title to a statute. Sears v. Treasurer and Receiver General, 327 Mass. 310, 98 N.E.2d 621, 631 (1951).\\n. Most of the courts that have dealt with challenges to initiative summaries utilize a deferential standard of review and refuse to invalidate a summary simply because they believe a better one could be written. The California Supreme Court holds that\\n[in] approaching the question as to whether the title [i.e., summary] so prepared is a proper one all legitimate presumptions should be indulged in favor of the propriety of the attorney-general's actions. Only in a clear case should a.title so prepared be held insufficient. Stated another way, if reasonable minds may differ as to the sufficiency of the title, the title should be held to be sufficient.\\nEpperson v. Jordan, 12 Cal.2d 61, 82 P.2d 445, 448 (1938). The Colorado Supreme Court cited this statement with approval in Say v. Baker, 137 Colo. 155, 322 P.2d 317, 319 (1958). The Arkansas Supreme Court followed suit in Mason v. Jernigan, 260 Ark. 385, 540 S.W.2d 851, 853 (1976). Even the Oregon Supreme Court, which often revises and rewords ballot summaries, has stated that it is \\\"not concerned with whether the petitioner's proposed [summary] may be better or even whether [it] could devise a better one [itself].\\\" Priestly v. Paulus, 287 Or. 141, 597 P.2d 829, 831 (1979).\\nGiven these authorities and the fact that \\\"there is no end of difficulty in choosing language which will awaken in the reader the very same thought that was in the mind of the writer.\\\" State ex rel Foreman v. Brown, 10 Ohio St.2d 139, 226 N.E.2d 116, 123 (1967), we have concluded that it would be inappropriate for this court to adopt a substitution-of-judgment standard of review.\\n. A contrary conclusion would require all initiatives that touch on matters that are regulated in some way by federal law to include a statement disclaiming any intent to change federal law or to bind the federal government.\\nWe announced this decision in an order issued on August 19, 1982, and indicated that this opinion would follow.\"}"
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+"{\"id\": \"10431564\", \"name\": \"Sigurd RUTTER, Appellant, v. STATE of Alaska, Alaska Commercial Fisheries Entry Commission, John Williams, Burke Riley, and Robert Simon, Commissioners of the Alaska Commercial Fisheries Entry Commission, Appellees\", \"name_abbreviation\": \"Rutter v. State\", \"decision_date\": \"1983-08-26\", \"docket_number\": \"No. 6146\", \"first_page\": \"1343\", \"last_page\": \"1349\", \"citations\": \"668 P.2d 1343\", \"volume\": \"668\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T22:11:59.696345+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before BURKE, C.J., and RABINOWITZ, MATTHEWS and COMPTON, JJ.\", \"parties\": \"Sigurd RUTTER, Appellant, v. STATE of Alaska, Alaska Commercial Fisheries Entry Commission, John Williams, Burke Riley, and Robert Simon, Commissioners of the Alaska Commercial Fisheries Entry Commission, Appellees.\", \"head_matter\": \"Sigurd RUTTER, Appellant, v. STATE of Alaska, Alaska Commercial Fisheries Entry Commission, John Williams, Burke Riley, and Robert Simon, Commissioners of the Alaska Commercial Fisheries Entry Commission, Appellees.\\nNo. 6146.\\nSupreme Court of Alaska.\\nAug. 26, 1983.\\nPamela Finley, Robertson, Monagle, Eas-taugh & Bradley, Juneau, for appellant.\\nJohn B. Gaguine and Deborah Vogt, Asst. Attys. Gen., Juneau, and Wilson L. Condon, Atty.' Gen., Juneau, for appellees.\\nBefore BURKE, C.J., and RABINOWITZ, MATTHEWS and COMPTON, JJ.\", \"word_count\": \"3651\", \"char_count\": \"23606\", \"text\": \"OPINION\\nBURKE, Chief Justice.\\nThis case involves a pure question of law. Plaintiff/Appellant Sigurd Rutter, a professional salmon hand troller, is challenging a series of regulations promulgated by the Commercial Fisheries Entry Commission limiting entry into the salmon hand troll fishery. Rutter raises three distinct issues on appeal: (1) whether the Commission violated the provisions of the Limited Entry Act in issuing too many entry permits; (2) whether the priority classification system devised to allocate entry permits. violates various Alaska statutes and the state and federal constitutions; and (3) whether the classification scheme must include the four indicia of economic dependence enumerated in AS 16.43.250(a)(1).\\nThe superior court thought the regulations valid and dismissed Rutter's action on the Commission's motion for summary dismissal. We reverse, holding that the Commission was not free to disregard the four indicia of economic dependence set forth in AS 16.43.250(a)(1).\\nI\\nThe Salmon Hand Troll Fishery\\nThere are two different salmon troll fisheries. The power troll fishery consists of larger boats equipped with cold storage facilities and mechanically operated gurdies. In contrast, the hand troll fishery consists of smaller boats which usually make day trips, and are equipped with hand operated gurdies or rod and reel gear. The two compete for king and coho salmon.\\nUnlike the power troll fishery, which was limited in 1975, the hand troll fishery remained open to entry until the Commission promulgated the regulations at issue here. As one of the few remaining open fisheries, and one requiring little in the way of initial investment, the number of commercial license holders using the hand troll fishery expanded greatly: from 1094 in 1975, to 1239 in 1976, 1849 in 1977, and 2604 in 1978. CFEC Briefing Paper No. 4, at 3, December 20, 1978.\\nMuch of this growth is attributable to the emergence of a pleasure boat fleet. Manned by city dwellers engaged in non-fishing related occupations, these boats are primarily used for recreational and sport fishing, landing only a few salmon to defray expenses. By 1978, three competing groups used the hand troll fishery: (1) the avocational sport fishermen; (2) fishermen supplementing other \\u2022 fishing income with income from salmon trolling; and (3) those fishermen deriving their principal livelihood from the fishery, the economically dependent trailers.\\nAs the number of fishermen increased, the area fished expanded greatly. Traditionally, hand trailers restricted activities to small areas localized around their communities. Recently, however, the highly mobile sport fishing boats have moved farther afield and are competing directly with the power trailers. Changes in the distribution of the catch reflect this development: hand trailers caught seventeen percent of the total troll catch in 1975 and 1976, twenty-nine percent in 1977 and thirty-four percent in 1978.\\nIncreased use led to gear restrictions and management closures in both troll fisheries. These restrictions impeded the ability of the economically dependent fishermen to earn an adequate income, prompting a limited entry proposal. Originally, the Commission contemplated issuing 1,100 permits, despite the fact that they knew the optimum number to be nearer 500-600 permits. After encountering public opposition to the 1,100 figure as being too low, the Commission decided to issue 2,150 permits.\\nHaving set the maximum number, the Commission promulgated regulations allocating these entry permits among the over 4,000 potential applicants. As required by statute, the classification system selected focuses on the degree of hardship an applicant would experience if excluded from the fishery, hardship being assessed through two hardship standards: economic dependence and past participation.\\nApplicants can be awarded up to thirty-one points for past participation in the fishery. 20 AAC 05.677(a)(1) (Eff. 3/6/81). An additional twenty-five points can be awarded on the basis of consistent past participation, allocated according to the number of weeks fished in any three of the five years between 1975 and 1979. 20 AAC 05.-677(b)(1).\\nA total of nineteen points hinges on income dependence on the fishery. Earnings from the fishery are used lo assess economic dependence, as demonstrated by the table below:\\n1975 $ 200.00 6\\n1976 500.00 6\\n1977 700.00 7\\n1978 750.00 7\\n1979 1,200.00 7\\n20 AAC 05.677(c)(1).\\nFinally, fifteen points are allocated according to the availability of alternative occupations in the place of the applicant's domicile. 20 AAC 05.677(c)(2). Applicants residing in rural areas receive the maximum number of points. Id.\\nAn applicant amassing eighty or more points is considered significantly dependent and automatically qualifies for an entry permit. 20 AAC 05.678(a) (Eff. 3/6/81). Those applicants earning less than seventy points are considered less dependent and receive permits only as they become available. 20 AAC 05.678(b). Permits issued to significantly dependent applicants are freely transferrable; those issued to less dependent applicants are subject to restrictions on transfer and the buy-back provisions of the Limited Entry Act. 20 AAC 05.678(a) & (b). The Commission has yet to establish a buy-back program for the salmon hand troll fishery.\\nUnder these provisions, Rutter could amass a total of thirty-four points. He began fishing in 1979, invested in a vessel and gear, and derives approximately sixty to seventy percent of his income from hand trolling.\\nUnder the impression that he would be denied a permit, Rutter filed suit to declare the regulations invalid. The lower court upheld the regulations, and dismissed Rut-ter's case on the Commission's motion for a summary dismissal. Rutter thereupon appealed to this court.\\nOn appeal, Rutter alleges various grounds for reversal. We hold that the Commission exceeded the scope of its authority in promulgating regulations which omit three of the four statutorily mandated criteria of economic dependence.\\nAs a threshold matter, we must determine if Rutter has standing to prosecute this appeal. The application period for obtaining a salmon hand troll permit closed on August 31,1981. As of that date, the Commission had received 2,274 timely applications. According to the Commission, it therefore appears \\\"nearly certain\\\" that Rutter will obtain an entry permit. The Commission concludes that the entire case is necessarily moot.\\nWe disagree. AS 44.62.300 provides that an \\\"interested person\\\" has standing to obtain judicial review of an administrative regulation. In this case, Rutter is \\\"interested\\\" in the number of permits issued, for his ability to fish commercially is directly affected by the number of trollers using the fishery. The parties agree that issuing 2,150 permits will necessarily result in gear restrictions and management closures, rendering Rutter's trade less profitable. That Rutter will obtain a permit does not alleviate his concern, for he is concerned that too many other applicants will also obtain permits.\\nWe note further that, even if this case were technically moot, it would fall within the public interest exception to the mootness doctrine. This court will hear a moot case if it presents an issue of public importance. Alaska Transportation Commission v. Gandia, 602 P.2d 402, 403 (Alaska 1979); Doe v. State, 487 P.2d 47, 53 (Alaska 1971). In this instance, a determination here would aid the Commission in formulating new regulations and applying the old. See Northwest Trollers Association v. Moos, 89 Wash.2d 1, 568 P.2d 793 (1977). Moreover, a fair number o\\u00ed nonparties are interested in the outcome of this suit, specifically, those applicants who will not receive permits. Since the mootness doctrine is a matter of judicial discretion, and not constitutional law, we are free to elect to address the case on the merits. See Alaska Transportation Commission v. Gandia, 602 P.2d 402 (Alaska 1979); R.L.R. v. State, 487 P.2d 27 (Alaska 1971). This we proceed to do.\\nII\\nThe Maximum Number of Permits\\nAS 16.43.240 sets forth the standards for determining the maximum number of entry permits the Commission can issue for a given fishery. In a distressed fishery, that is, a fishery in which the number of users exceeded the optimum number as of January 1, 1973, the maximum number \\\"shall be the highest units of gear fished in that fishery during any one of the four years preceding January 1, 1973.\\\" AS 16.43.240(a). The 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. AS 16.43.240(b).\\nAs the salmon hand troll fishery was not overgeared as of January 1,1973, AS 16.43.-240(b) applies and the Commission is given broad discretion in setting the maximum number. The Commission contends that the number selected is reasonable and non-arbitrary, one well within its discretion to select. Under the applicable standard of review, Rutter must establish that the number was the expression of a whim, rather than the product of reason. Kelly v. Zamarello, 486 P.2d 906, 910 (Alaska 1971). We conclude that Rutter has not so established.\\nRutter's argument reduces to the simple proposition that the Limited Entry Act calls for the immediate exclusion of a large number of avocational fishermen so that a smaller number of economically dependent trollers can fish without any gear restrictions whatsoever. Underlying this argument is the premise that the salmon hand troll fishery is a commercial fishery, and that the interests of commercial trollers take precedence over the interests of all other users. This position, however, characterizes the purposes of the Limited Entry Act too narrowly and ignores pertinent legislative history accompanying that act.\\nAs initially proposed, the Limited Entry Act called for an immediate reduction in the number of fishermen to the optimum level in all distressed fisheries. Not surprisingly, this aspect of the act generated substantial public opposition. As a result, the act as passed requires that the Commission fix the maximum number of permits at a level approximating past participation, contemplating a gradual decrease in use through operation of a buy-back program. See 1973 House Journal 503 (\\\"instead of making an initial reduction to the optimum number of units of gear, the commission would issue entry permits at the present level of fishing effort and reduce the amount of gear to optimum levels through a voluntary buy-back program.\\\")\\nThat the legislature intended the number of permits initially issued to reflect actual use is further evidenced by the very structure of the buy-back program. That program operates to purchase entry permits initially issued to less dependent trailers, individuals who would, by definition, suffer only minor economic discomfort if excluded from the fishery. See AS 16.43.170(c). The Act thus contemplates the issuance of permits to less dependent trailers, even though excluding these individuals would benefit the dependent trailers. Hence, the Act's purposes are not merely economic. The Act was designed to protect the reliance interests of all individuals using the fishery, as well as aiding the dependent fishermen.\\nIn this instance, the number of permits issued reflects present use. We therefore have little difficulty concluding that setting the maximum number at 2,150 was reasonable and in accord with the letter and spirit of the Limited Entry Act.\\nIll\\nThe Priority Classification System\\nAS 16.43.250 requires that the Commission allocate entry permits on the basis of the hardship an applicant would suffer if excluded from the fishery. Hardship is assessed through a reasonable balance of two hardship standards: economic dependence and past participation. Rutter maintains that the regulations fail to assess adequately economic dependence and past participation, and that the balance between the two is unreasonable.\\nA. Past Participation Points\\nUnder the present system, thirty-one points can be obtained by landing at least one fish a year for any three of the five years between 1975 and 1979. 20 AAC 05.-677(a)(1) & (2) (Eff. 3/6/81). An additional twenty-five points will be awarded on the basis of consistent past participation, assessed by looking at the number of weeks in which landings were made for any three years between 1975 and 1979. 20 AAC 05.-677(b)(1).\\nRutter contends that these provisions reward the enthusiastic avocational fishermen by failing to distinguish between the economically dependent and sport-commercial trailers. The Commission responds by noting that the computer print-out on run 27(b), the system eventually adopted, shows that only twenty-eight percent of the 4476 potential applicants, or 1274 individuals, would be able to show participation in three years. Forty-seven percent participated only one year. From these figures, the Commission argues that very few \\\"recreational dabblers\\\" will score highly, while virtually every professional who has been active for the last several years will receive the maximum number of points.\\nSimilarly, the Commission contends that the three to five weeks fished per year figure used to assess consistent past participation will include most professional trailers. A computer run reveals that if the number of weeks fished per year requirement were increased to seven weeks, a fig ure lower than that urged by plaintiff, fully seventy-three percent of the potential applicants would receive no points. In contrast, under the present system forty-two percent participated only one year, while fourteen percent qualified for three.\\nWe find these arguments persuasive. When considered in conjunction with the points awarded for economic dependence, most professional trailers will receive permits. Only in the rare instance, (e.g., a professional who recently started fishing) will a \\\"dabbler\\\" be preferred over an economically dependent trailer. The act calls for ho more.\\nWhen properly analyzed, Rutter's objection to the treatment of participation points is in reality an objection to the maximum number of permits issued. Rutter argues that the present system fails to distinguish between the avocational and professional trailer. This is quite true, but what Rutter fails to realize is that there is no need to distinguish between the two groups. Given the number of permits issued, and the relatively small number of professional trailers, almost all professionals will receive permits; the exclusionary line will be drawn between serious avocational trailers and less serious avocational trailers. Rutter's objection is not that professionals will be excluded, but that too many avocational fishermen will be included. He objects to the maximum number, an objection which lacks merit.\\nB. Economic Dependence\\nEarnings from the salmon hand troll fishery are used to assess income dependence. The maximum of nineteen points can be obtained by anyone deriving a relatively low gross income from the fishery: $200 in 1975, $500 in 1976, $700 in 1977, $750 in 1978, and $1,200 in 1979. 20 AAC 05.-677(c)(1) (Eff. 3/6/81). Rutter argues that \\\"because these points do not distinguish between the economically dependent hand trailer and the weekend avocational fishermen, they are essentially meaningless.\\\"\\nAn additional fifteen points are allocated on the availability of alternative occupations, based on the population of the place of the applicant's domicile. 20 AAC 05.-677(c)(2). Applicants living in rural areas receive the maximum number, the theory being that most avocational fishermen reside in urban areas while dependent trailers are country dwellers. Rutter, who lives in Sitka, does not address this aspect of the allocation scheme.\\nThe crux of Rutter's argument is that the point system is over-inclusive:\\nIf one is attempting to identify the economically dependent hand trailer, and believes that only a small portion of participants generate a major portion of their income from hand trolling, one would not establish a system which gives all possible points in this category to approximately fifty percent of the people fishing in relevant years . . [I]t is obvious that a small group of dependent hand trailers will not be identified by a system giving all points to those making less than the average income in the fishery.\\nThis argument misses the point. All that the act requires is that the Commission rank applicants by the hardship they would suffer if excluded from the fishery. Rut-ter, however, presumes that the Commission must precisely identify dependent trailers. Given the number of permits available, this degree of exactitude is uncalled for. Once again, plaintiff complains of the maximum number.\\nC. Reasonable Balance.\\nUnder the present system, individuals who participate but are not economically dependent will receive a maximum of fifty-six points. An economically dependent trailer who has been active for at least three years will receive both dependence and participation points, there being no such thing as a dependent trailer who did not participate. The two criteria complement each other well, and the balance is not so clearly unreasonable as to require invalidation of the regulations on this point.\\nIV\\nThe Requirements of AS 16.48.250(a)(1)\\nAS 16.43.250(a)(1) requires that the Commission include certain factors in its assessment of economic dependence. Specifically, it requires that the regulations assess \\\"percentage of income derived from the fishery, reliance on alternative occupations, availability of alternative occupations, [and] investment in vessels and gear . \\\" The regulations at issue here, however, incorporate only one of these factors, availability of alternate occupations. Rutter argues that the Commission exceeded the scope of its authority in omitting these criteria, and that the regulations are consequently invalid.\\nThe Commission found that special circumstances exist for the salmon hand troll fishery:\\n[T]he standards set out in AS 16.43.-250(a)(1) for vessel ownership, percentage of income and reliance on alternative occupations do not adequately reflect the degree of economic dependence on the fishery, and are unsatisfactory for determination of the degree of hardship an applicant would suffer by exclusion from the fishery.\\nThe Commission deemed investment in the fishery inappropriate as an indicator of economic dependence because of the \\\"unique nature of the hand troll fishery and the management philosophy applied to it.\\\" Findings of the Commercial Fisheries Entry Commission Regarding the Priority Classification System for the Statewide Salmon Hand Troll Fishery, at 2, January 9, 1981. The Commission apparently reasoned that investment is unrelated to dependence, for numerous avocational trailers have invested in expensive recreational trolling boats. And reliance on alternative occupations as a ranking factor was disregarded because of the nature of that fishery as a \\\"source of supplemental income to that derived through other means, including other fisheries.\\\" Id. Similarly, the \\\"characteristically low income earned from hand trolling\\\" persuaded the Commission to ignore the percentage of income derived by trailers from other sources. Id. at 3.\\nThe Commission was not free to disregard these statutory indicia of economic dependence. It is not at all clear that the Commission could not fashion a system incorporating all four factors in a logical, reasonable manner. That the Commission feels it could design a better classification scheme using only one of the factors is beside the point; it is not free to substitute its judgment for that of the legislature. Once the legislature determined that percentage of income derived from the fishery, reliance on alternative occupations and investment were relevant to economic dependence, the Commission was deprived of the power to decide otherwise.\\nAdministrative agencies are creatures of statute, deriving from the legislature the authority for the exercise of any power they claim. McDaniel v. Cory, 631 P.2d 82, 83 (Alaska 1981). In this instance, the statute requires that the Commission assess economnic dependence according to specifically enumerated factors. This the Commission failed to do. We therefore hold the regulations invalid as they relate to the assessment of economic dependence and reverse the lower court.\\nREVERSED.\\n. Our decision in this case was deferred pending our determination of the constitutional issues raised in State v. Ostrosky, 667 P.2d 1184 (Alaska 1983).\\n. Over 30 salmon fisheries were limited almost immediately after passage of the Limited Entry Act. See 20 AAC 05.300-320 (Eff. 12/18/74).\\n. In addition, holding a commercial license enables sport fishermen to continue fishing after sport fishing bag limits are reached and lets them avoid paying a portion of the motor fuel tax. The Commission notes further that some recreational fishermen were motivated by tax considerations, fishing commercially on a small scale to generate tax deductions.\\n.The Commission estimates that pleasure boats used by avocational fishermen presently constitute the largest segment of the hand troll fleet. It appears that no more than ten percent of the licensed trailers can be considered economically dependent. CFEC Briefing Paper No. 4, at 1-3, December 20, 1978.\\n. Id. at 4. The shift in catch distribution is even more pronounced in the Icy Straits area: in 1975, 75 percent of the troll catch went to power trailers, while only 25 percent went to hand trailers. By 1978, hand trailers were taking 65 percent of the catch while only 35 percent went to power trailers.\\n. A total of 4,476 different individuals participated in the fishery from 1975 through 1979. These individuals constitute the pool of potential applicants.\\n. Rutter qualifies for 11 points for past participation, nine for consistent past participation, seven for economic dependence, and seven for living in Sitka for a total of 34 points.\\n. Indeed, in Commercial Fisheries Entry Comm'n v. Apokedak, 606 P.2d 1255, 1265 (Alaska 1980), we noted that the act had the following four broad purposes: (1) enhancing the economic benefit to professional fishermen; (2) conserving the fishery; (3) avoiding unjust discrimination in the allocation of entry permits; and (4) administrative convenience.\\n. It is entirely consonant with the purposes of the act to give preference to those individuals that have fished the most. Isakson v. Rickey, 550 P.2d 359, 364 (Alaska 1976). That Rutter, as a new but dependent trailer, may be passed over in favor of an established avocational fisherman is perhaps a defect in the classification system, but it is important to remember that courts do not expect perfection of such a system. Were it otherwise, very few statutory classification schemes would survive judicial scrutiny. See Commercial Fisheries Entry Comm'n v. Apokedak, 606 P.2d 1255, 1267 n. 50 (Alaska 1980).\"}"
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+"{\"id\": \"10431953\", \"name\": \"Isaac C. NORMAN, Appellant, v. NICHIRO GYOGYO KAISHA, LTD. (Nichiro Fisheries Co., Ltd.) Nichiro Pacific, Ltd., Appellees\", \"name_abbreviation\": \"Norman v. Nichiro Gyogyo Kaisha, Ltd.\", \"decision_date\": \"1982-05-28\", \"docket_number\": \"No. 5254\", \"first_page\": \"191\", \"last_page\": \"200\", \"citations\": \"645 P.2d 191\", \"volume\": \"645\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T22:34:08.537990+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before RABINOWITZ, C. J., and CON-NOR, BURKE, MATTHEWS and COMPTON, JJ.\", \"parties\": \"Isaac C. NORMAN, Appellant, v. NICHIRO GYOGYO KAISHA, LTD. (Nichiro Fisheries Co., Ltd.) Nichiro Pacific, Ltd., Appellees.\", \"head_matter\": \"Isaac C. NORMAN, Appellant, v. NICHIRO GYOGYO KAISHA, LTD. (Nichiro Fisheries Co., Ltd.) Nichiro Pacific, Ltd., Appellees.\\nNo. 5254.\\nSupreme Court of Alaska.\\nMay 28, 1982.\\nJames D. Rhodes, Hartig, Rhodes, Norman & Mahoney, Anchorage, and Jonathan B. Noll, Foster, Pepper & Riviera, Seattle, Wash., for appellant.\\nJohn S. Hedland and James T. Brennan, Hedland, Fleischer & Friedman, Anchorage, for appellees.\\nBefore RABINOWITZ, C. J., and CON-NOR, BURKE, MATTHEWS and COMPTON, JJ.\", \"word_count\": \"5746\", \"char_count\": \"34880\", \"text\": \"OPINION\\nCONNOR, Justice.\\nThis is an appeal of a grant of partial summary judgment dismissing Counts II through IX of plaintiff's amended complaint. Most of the counts were dismissed on the alternative grounds that the plaintiff had no individual right of action for breach of a shareholders agreement and that the claims might be barred under the doctrine of res judicata. The remaining counts of the amended complaint were dismissed as barred by the statute of limitations, since they did not arise out of the same conduct, transaction or occurrence asserted in the original complaint.\\nFACTS\\nThe facts, viewed most favorably to plaintiff, are as follows. Plaintiff Isaac C. Norman was a civilian employee of the U. S. Navy at Adak, Alaska, from 1965 to 1973. During his eight years at Adak, Norman formulated the concept of establishing a land-based fish processing facility at Finger Bay, Adak. He spent several years observing the processing methods aboard fish processing vessels and studying movements of sea life around Adak. He concluded that a land-based facility would be feasible. In 1972, he was the successful bidder on a five-year lease from the Navy for certain lands and buildings on Finger Bay.\\nIn November, 1972, Norman formed Adak Aleutian Processors, Inc. (AAP), an Alaskan corporation. Norman owned 100% of the stock of AAP. He transferred the Finger Bay lease, for which he had posted a $5,000 bond and paid the annual rent of $1,000, to the corporation.\\nBy June, 1973, Norman had successfully attracted the interest of other parties with sufficient capital and expertise to begin making his proposed venture a reality. Norman's initial contact was Mr. Akira Ota-ni, vice president, treasurer and manager of Market Place, a Hawaiian corporation engaged in the fishing industry. Through Otani, Norman came in contact with Tak-ehiro Hikita, whose family owned more than 90% of Alaska Shokai, a Japanese corporation, and controlled Alaska Foods, Inc., a Washington corporation and wholly-owned subsidiary of Alaska Shokai. Both corporations were involved in the fish trading business. The final contact was with Nichiro Gyogyo Kaisha, Ltd. (NGK), a Japanese corporation, and its affiliate, Nichiro Pacific, Ltd. (NPL), a Washington corporation, the defendants in this case. NGK and NPL, too, were actively involved in the fishing industry, in Japan as well as in the United States.\\nOn June 8, 1973, the parties entered into three agreements which are the basis of this litigation. The first agreement involved the sale of AAP stock by Norman to Market Place, Alaska Foods and NGK. Under the agreement, Norman sold 10% of the stock to Market Place and 30% each to Alaska Foods and NGK. Norman retained 20%. The purchasers agreed to pay Norman $200,000, jointly and severally. $40,-000 was paid initially, with the remaining amount to be paid in subsequent years.\\nThe second agreement, entered into by Norman and AAP, related to Norman's prospective employment by AAP if and when he terminated his employment with the Navy.\\nThe third agreement, executed by all AAP shareholders and entitled \\\"shareholders agreement,\\\" set out the general plan of operation and administration of AAP. Among other things, the shareholders collectively agreed to \\\"exert their best efforts to achieve the corporate and business purposes of AAP.\\\" Certain other provisions related to voting rights, sale of stock, and distribution and marketing rights. Finally, Alaska Foods and NGK agreed to loan AAP sufficient funds for plant construction and working capital, and to provide technical assistance and personnel.\\nNorman resigned from his civil service position with the Navy to devote his full-time efforts as an employee of AAP. Under NGK's direction, the processing plant was completed in November of 1973. Operations were begun midway through the 1973-74 season.\\nAAP was plagued with problems from the beginning. The total cost of construction of the plant came to $3.2 million, which was $2.5 million more than the original estimate of $700,000. The 1973-74 season was unprofitable, partly because of the late start and partly because of mismanagement by NGK. Personnel problems arose between Norman and NGK employees until, in August of 1974, NGK terminated Norman's employment with AAP. Then, several days into the 1974-75 season, NGK suddenly and completely pulled out of the AAP venture.\\nThis lawsuit was filed in April, 1975. The original complaint was brought by Norman against NGK and sought to recover the $120,000 still owed to him under the stock purchase agreement. NGK counterclaimed, alleging Securities Act violations in the original stock transaction. In addition, NGK filed third party complaints against Alaska Foods and Market Place for their pro rata share of any money owing under the stock purchase agreement.\\nIn August, 1977, Norman amended his complaint to add NPL as a defendant and to add Counts II through IX to the complaint. Count I re-alleges a breach of the stock purchase agreement; Counts II through VI(a) and IX are based on alleged breaches of the shareholders agreement; and Counts VI(b) through IX are tort claims. Defendants NGK and NPL were awarded summary judgment with respect to Counts II through IX on February 29, 1980, and on portions of Count I on September 5, 1980. Norman appeals the grant of partial summary judgment.\\nISSUES\\nThere are three issues on appeal: first, whether Norman has an individual action against NGK and NPL for breach of the shareholders agreement; second, whether such claims are barred under the doctrines of res judicata and collateral estoppel; and, third, whether the tort claims are barred by the statute of limitations.\\nINDIVIDUAL ACTION\\nCounts II through VI(a) and IX of Norman's amended complaint are based on alleged breaches of the shareholders agreement. Count II alleges that NGK and NPL failed to exert their best efforts to achieve the corporate and business purposes of AAP; Count III alleges that NGK and NPL breached the contract by accumulating over $100,000 in debts on behalf of AAP; Count IV alleges failure to furnish AAP with sufficient and necessary funds for construction and installation of new improvements, equipment and facilities; Count V alleges failure to supply sufficient working capital funds to AAP; Count VI(a) alleges failure to supply technical assistance to AAP; and Count IX alleges breach of fiduciary duties to Norman. As a result of these breaches, Norman seeks damages of $720,000, plus interest, for loss of value of his stock.\\nDefendants argue, and the superior court held, that Norman has no individual cause of action against NGK and NPL for breach of the shareholders agreement; rather, such an action can only be brought by the corporation (AAP) or by a shareholder in a derivative suit on behalf of the corporation. This is consistent with the general rule that a shareholder has no individual right of action against third parties for acts producing harm to the corporation and thereby diminishing the value of the stock, since injury to the individual shareholder is merely incidental to the injury to the corporation. Arctic Contractors, Inc. v. State, 573 P.2d 1385, 1386 (Alaska 1978); Martin v. Maldonado, 572 P.2d 763, 773 (Alaska 1977). The rule is based on the principle that where such an injury occurs, each shareholder suffers in proportion to the number of shares he or she holds. Thus, each will be made whole if the corporation obtains compensation from the wrongdoer. Commonwealth of Massachusetts v. Davis, 140 Tex. 398, 168 S.W.2d 216, 221 (1943).\\nThis rule is grounded on sound policy. First, a contrary rule would authorize suits by each shareholder and result in a multiplicity of suits against the wrongdoer. E. K. Buck Retail Stores v. Harkert, 157 Neb. 867, 62 N.W.2d 288, 307 (1954). Further, the rule is necessary so that damages recovered by the corporation may be available for payment of the corporation's creditors. Martin v. Maldonado, 572 P.2d 763, 773 at n.34 (Alaska 1977). In addition, permitting individual recovery could have the effect of removing from the board of directors its prerogative to use the recovered damages for any legitimate business purpose. Commonwealth of Massachusetts v. Davis, 140 Tex. 398, 168 S.W.2d 216, 221 (1943).\\nNorman argues that he has suffered a direct, rather than an incidental, injury and is, therefore, entitled to bring an individual action against NGK and NPL. In order to show direct injury, Norman must show that NGK and NPL owed him a special duty or that he suffered an injury separate and distinct from that suffered by the other shareholders.\\nNorman claims that he has suffered injuries different from the injuries suffered by the other shareholders. These separate injuries, according to Norman, are loss of 40% of the stock purchase price, loss of a new job, and loss of \\\"opportunity.\\\" However, the two former injuries were not the result of the breach of the shareholders agreement; indeed, these injuries are the subject of other counts of the complaint and NGK and NPL do not contest Norman's right to sue individually on them. The lost \\\"opportunity,\\\" on the other hand, is an injury suffered in common by the shareholders. Each shareholder signed the shareholders agreement in the hopes that AAP would prosper; the corporation represented an opportunity for each shareholder and any benefits would accrue to the shareholder in its capacity as a shareholder.\\nCounts II through VI(a) of Norman's amended complaint clearly allege wrongs committed directly against the corporation rather than against Norman individually: Count II is directed at NGK's and NPL's failure to exert best efforts to achieve the purposes of AAP; Count III concerns wrongful accumulation of debts on behalf of AAP; and Counts IV-VI involve the failure to provide AAP with sufficient funds and technical assistance. Count IX alleges breach of a fiduciary duty to Norman; however, any fiduciary duty under the shareholders agreement was owed to the corporation or to the shareholders as a whole.\\nMoreover, Norman's statement of damages indicates that he recognized that each shareholder suffered the same injury. As stated earlier, Norman seeks to recover for the loss and destruction of his stock caused by defendants' breach of the shareholders agreement. Norman measures this damage as 20% (his stock ownership interest) of the minimum book value of the stock assuming defendants had not breached. The court in E. K. Buck Retail Stores v. Harkert, 157 Neb. 867, 62 N.W.2d 288 (1954), was confronted with a similar situation. In that case, plaintiffs and defendants entered into a \\\"stockholders control agreement\\\" providing that, in return for a $90,000 investment, plaintiffs would get 40% of the corporation's stock and equal representation on the board of directors. The contract also included a voting agreement. In an action for breach of the control agreement, plaintiffs sought a personal judgment for 40%, based on their stock ownership of 40%, of the losses sustained as a result of the breach. The court, in its holding that no individual right of action existed, noted that plaintiffs' prayer for damages indicated that they recognized that the injuries resulted to all shareholders. 62 N.W.2d at 307. Likewise, in the instant case, Norman's alleged damages reflect the fact that all AAP shareholders suffered the same loss as a result of the breach of the shareholders agreement. It is thus clear from Norman's allegations and items of damages that his injury was the same as that to the other shareholders.\\nNorman also argues that NGK and NPL owe him a special duty arising out of the contractual relationship under the shareholders agreement. He asserts that this special duty entitles him to maintain an individual action even though the corporation may have a right of action on the breach of the shareholders agreement. This is true only if the duty is owed to him directly and has its origin in circumstances independent of his status as a stockholder. Shaw v. Empire Savings & Loan Ass'n, 186 Cal.App.2d 401, 9 Cal.Rptr. 204, 208 (1960); W. Fletcher, Cyclopedia of the Law of Private Corporations, \\u00a7 5921 at 331 (rev. vol. 1980).\\nHere, again, the E. K. Buck case is instructive. The Nebraska Supreme Court held that the entry of the parties into the shareholders control agreement did not operate to confer upon plaintiffs the right to bring an individual direct action. 62 N.W.2d at 307. According to the court, the control agreement merely established a business policy and the means to carry out that policy. The court pointed out that the only reason the agreement was valid was that it was for the benefit of the corporation and all shareholders alike. Id. Thus, any duties owed under the agreement were owed primarily to the corporation and its shareholders.\\nA reading of the shareholders agreement in the instant case shows that it, like the agreement in E. K. Buck, was intended to benefit the corporation and all shareholders alike. The purpose of the agreement is set forth in the preamble:\\n\\\"WHEREAS, said shareholders desire to enter into an operating agreement as to the general plan of administration and operation of AAP in developing its 10 acre lease at Finger Bay, Adak, Alaska\\nThe subsequent paragraphs set out the means to effectuate that end. In paragraph 1, the shareholders collectively agree to \\\"exert their best efforts to achieve the corporate and business purposes of AAP.\\\" Paragraphs 2 and 3 are voting agreements regarding elections and stock transferability. In paragraph 4, certain distribution and marketing rights are granted to Otani, NGK and Alaska Foods; and, in paragraph 5 the shareholders agree that AAP will be administered and operated in accordance with the articles and by-laws. Paragraph 6 is the heart of the shareholders agreement. The portion setting out NGK's duty is as follows:\\n\\\"6. In furtherance of the corporate and business purposes of AAP, shareholders respectively agree as follows:\\n(a) [NGK] agrees to:\\n1. Furnish to AAP sufficient and necessary funds for the construction and installation of new improvements, equipment and facilities for the Adak operations, upon such terms and conditions as shall then be determined and agreed upon between [NGK] and AAP.\\n2. Furnish to AAP working capital funds required by the Adak operations up to the sum of $2,000,000, upon such terms and conditions as shall then be separately agreed upon between [NGK] and AAP.\\n3. Furnish technical assistance to AAP for the Adak operations . all in accordance with such terms and conditions as shall then be determined and agreed upon between AAP and [NGK] .\\\" (Emphasis added.)\\nIt is clear that NGK's duties under the shareholders agreement are owed primarily to AAP. Any benefit derived by Norman would be in his capacity as a shareholder.\\nNorman stresses that the shareholders agreement was not executed in a vacuum. He urges us to read that agreement in conjunction with the stock purchase agree ment and the employment agreement, which were entered into simultaneously with the shareholders agreement. According to Norman, the three agreements and the surrounding circumstances make up the entire deal and confer upon him three special rights: (1) the right to receive $200,000 for the AAP stock; (2) the right to be employed by AAP; and, most importantly, (3) the right to have NGK and the other parties perform their obligations under the shareholders agreement. Norman maintains that these three rights are unsevera-ble. We disagree.\\nNorman's right to receive the balance of the purchase price of the AAP stock is derived solely from the stock purchase agreement and belongs directly to him; NGK and NPL do not contest Norman's right to sue individually on that claim. Similarly, Norman's right to be employed by AAP is derived solely from the employment agreement and belongs directly to him; NGK and NPL also do not contest Norman's right to sue as an individual for tortious interference with that contract. Likewise, Norman's right to have the parties perform their obligations under the shareholders agreement is derived solely from that agreement. However, Norman's right is only incidental; that right belongs directly to the corporation. That Norman has two individual causes of action against a wrongdoer does not entitle him to pursue a corporate claim. See Weiss v. Northwest Acceptance Corp., 274 Or. 343, 546 P.2d 1065 (1976).\\nSince Norman has not shown a direct injury, through either a violation of a special duty owed to him or an injury separate and distinct from that suffered by the other AAP shareholders, he may not maintain an individual action against NGK and NPL for breach of the shareholders agreement. We thus conclude that the trial court was correct in granting partial summary judgment as to Counts II through VI(a) and IX of plaintiff's amended complaint.\\nRES JUDICATA\\nThe trial court also held that the claims stated in Counts II through VI(a) and IX of the amended complaint were based on the same cause of action as that alleged by AAP in two of the previously described lawsuits, and would, therefore, be barred by the doctrines of res judicata and collateral estoppel if asserted by AAP or any party in privity with AAP. The court found that a genuine issue of material fact existed as to whether plaintiff Norman was in privity with AAP. In view of our holding that Norman is not entitled to maintain an individual action for breach of the shareholders agreement, we find it unnecessary to decide the res judicata issue.\\nTORT CLAIMS\\nCounts VI(b) through IX of Norman's amended complaint are tort claims against NGK and NPL. Count VI(b) alleges tor-tious interference with Norman's employment with AAP; Count VII alleges that Norman suffered humiliation, mental anguish and physical stress as a result of NGK's and NPL's wrongful acts; Count VIII alleges that NGK and NPL acted maliciously and with wanton disregard of Norman's rights and feelings; and Count IX alleges breach of fiduciary duty. The trial court dismissed Counts VI(b) through IX, holding that they were barred by the statute of limitations.\\nThe statute of limitations on tort claims is two years. AS 09.10.070. Norman's original complaint, alleging violation of the stock purchase agreement, was filed in April, 1975. The amended complaint was filed in August of 1977, more than two years after the alleged wrongful acts were committed. In order to avoid the bar of the statute of limitations, Norman contends that the new claims come within the ambit of Alaska Civil Rule 15(c), which provides in part:\\n\\\"Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading.\\\"\\nThus, if the tort claims arose out of the same conduct, transaction or occurrence asserted in the original complaint, then the amendment will \\\"relate back\\\" to the date of the original complaint, which was filed well within the statute of limitations.\\nNorman cites Burns v. Anchorage Funeral Chapel, 495 P.2d 70 (Alaska 1972), and Jakoski v. Holland, 520 P.2d 569 (Alaska 1974), in support of his assertion that the tort claims arose out of the same conduct alleged in the original complaint. In Bums, the administrator of an estate sought to add decedent's next of kin as plaintiffs in a wrongful death action. We held that the amendment related back to the date of the original complaint, since the defendant \\\"was sufficiently informed of the nature of the asserted claim for relief so that no new claim for relief would have been injected\\\" by the amendment. 495 P.2d at 75. We went on to state:\\n\\\"Our analysis is in accord with the basic rule applied by federal courts in determining whether an amendment introduces a new claim for relief. The federal authorities hold that if the amendment is based on the same specific conduct of the defendant upon which the original claim for relief was founded, no new claim for relief is stated by the amendment.\\\" (Emphasis added.)\\nId.\\nThe Burns principle was held to be dis-positive in Jakoski, an action for personal injury damages arising out of an automobile accident. After the statute of limitations had run, plaintiff filed an amended complaint adding her husband as a plaintiff and adding his claim for loss of consortium based upon the same accident. We held there that the amendment related back to the date of the original complaint. The salient fact was that the defendant had ample notice of the cause of action, since the new claim was based on the identical conduct, transaction and occurrence relied upon in the original pleading. 520 P.2d at 576.\\nUnlike the amended claims in Burns and Jakoski, Norman's tort claims are not based on the identical conduct upon which his original claim was founded. Norman's original complaint alleged only that NGK was liable for the balance due under the stock purchase agreement. The \\\"conduct, transaction or occurrence\\\" underlying the complaint involves the circumstances surrounding the purchase and sale of the stock and the subsequent failure to pay for the stock. The original action thus did not give NGK notice of any tort claims related to mismanagement or abandonment of AAP; nor did it give notice of a claim for tortious interference with the employment contract.\\nWe do not mean to hold that an amendment must be based on the identical conduct, transaction or occurrence set forth in the original pleading. However, the new allegations must be sufficiently related to the conduct, transaction or occurrence originally set forth so as to avoid prejudice to the opposing party and to ensure that the opposing party has notice of the nature of the claim from the beginning. Green v. Walsh, 21 F.R.D. 15, 18 (D.C.Wis.1957). Norman's tort claims in his amended complaint fail to meet this standard and, therefore, do not relate back to the date of the original complaint. The superior court was correct in dismissing Counts VI(b) through IX as barred by the statute of limitations.\\nAFFIRMED.\\n. The trial court directed the entry of a final judgment under Alaska Rule of Civil Procedure 54(b) after determining that there was \\\"no just reason for delay.\\\"\\n. In reviewing a grant of summary judgment, we construe the facts most favorably to the losing party below. Wickwire v. McFadden, 576 P.2d 986 (Alaska 1978).\\n. Prior to the agreement, Norman had transferred 10% of the AAP stock to Otani as a \\\"finder's fee.\\\" Otani subsequently transferred the stock to his son, Daniel Y. Otani.\\n. NGK's action was the basis of several other lawsuits between the various parties:\\nIn June of 1975, NPL brought an action against AAP for re-imbursement of working capital loans. AAP counterclaimed, alleging mismanagement and abandonment. In June, 1976, NPL was awarded summary judgment, subject to AAP's right to pursue its counterclaim. The counterclaim was dismissed in December of 1979.\\nIn July of 1975, AAP filed suit in the federal district court against NGK and its affiliate, NPL, for mismanagement and abandonment. In May, 1976, the action was dismissed by stipulation without findings of any kind.\\nIn August, 1975, the Bank of California brought suit against AAP and NPL to foreclose on promissory notes securing the loans from Alaska Foods to AAP, which Alaska Foods has assigned to the bank. AAP crossclaimed against NPL, again asserting mismanagement and abandonment. NPL also crossclaimed against AAP to foreclose on its loans to AAP. Both the bank and NPL were successful in their claims against AAP; and AAP's crossclaim . was dismissed for failure of AAP to answer interrogatories.\\n. NPL was added as a defendant on the theory that it is the alter ego of NGK. Norman seeks an order piercing the corporate veil of either to reach the other.\\n. Count IX incorporates by reference all the previous counts and alleges breach of the fiduciary duty arising under the shareholders agreement. The trial court treated the count as sounding in contract as well as in tort.\\n. Norman also seeks recovery of other damages, for a total of more than $2.5 million. See note 10, infra.\\n. Defendants concede that the remaining claims (Counts I, VI(b), VII and VIII) are individual claims of Norman's.\\n. The courts vary in their articulations of the test for showing direct injury. Some courts require the violation of a special duty owed to the shareholder. See Weiss v. Northwest Acceptance Corp., 274 Or. 343, 546 P.2d 1065, 1069 (1976). Other courts require that the shareholder suffer a separate and distinct injury from that suffered by other shareholders. See E. K. Buck Retail Stores v. Harkert, 157 Neb. 867, 62 N.W.2d 288, 307 (1954). We have used both phrases. Compare Martin v. Maldonado, 572 P.2d 763, 773 (Alaska 1977) (finding no special duty), with Arctic Contractors, Inc. v. State, 573 P.2d 1385, 1386 (Alaska 1978) (finding neither an injury separate from harms allegedly done to the corporation nor a special duty). Defendants argue that Norman must prove both a special duty and a separate injury. While we recognize that the two concepts will usually, if not always, overlap (i.e., a violation of a special duty will cause a separate injury and, conversely, a separate injury will be the result of a violation of a special duty), we prefer to state the test in the disjunctive.\\n. We note that Counts II through VI(a) and IX of Norman's complaint merely allege that, as a result of the various breaches of the shareholders agreement, \\\"the Plaintiff was damaged\\\"; and the prayer for relief merely seeks \\\"compensatory damages,\\\" \\\"punitive and exemplary damages,\\\" costs and interest. In his separate breakdown of the damages sought, Norman does not specify which damages flow from which Counts. However, the loss of stock is clearly the principal item of damages claimed as a result of the breach of the shareholders agreement. Other damages sought are the balance due under the stock purchase agreement, lost wages, costs of relocation, costs of formation/promotion, medical expenses, legal expenses and punitive damages. None of these damages, except arguably the costs of formation/promotion and some legal expenses, would be proper remedies for breach of the shareholders agreement.\\n. It is immaterial that AAP was not a party to the shareholders agreement. In Green v. Victor Talking Machine Co., 24 F.2d 378 (2d Cir. 1928), the court stated that \\\"despite the fact that [the contract] was made with a shareholder, not with the corporation, nevertheless a breach of [the contractual] duty would give a right of action to the corporation, not to its shareholders.\\\" Id. at 382. As Norman points out, in the other lawsuits between the parties NGK and NPL have consistently asserted that because AAP was not a party to the shareholders agreement it has no rights thereunder. Obviously, NGK and NPL cannot have it both ways; otherwise, nobody would be able to sue for breach of the shareholders agreement. In our holding that Norman does not have an individual right of action it is implicit that AAP would have a right of action against NGK and NPL for breach of the shareholders agreement. Since the corporation is no longer in existence and thus has no capacity to sue, the right of action rests with the directors and shareholders as the corporation's representatives. Cullum v. General Motors Acceptance Corp., 115 S.W.2d 1196, 1202-03 (Tex.Civ.App.1938).\\n. NPL v. AAP and Bank of California v. AAP and NPL. See footnote 4, supra.\\n. AS 09.10.070 reads:\\n\\\"No person may bring an action (1) for libel, slander, assault, battery, seduction, false imprisonment, or for any injury to the person or rights of another not arising on contract and not specifically provided otherwise . unless commenced within two years.\\\"\\nNorman does not dispute the trial court's determination that Counts VI(b) through IX are tort claims and hence subject to the two-year statute of limitations.\"}"
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+"{\"id\": \"10432233\", \"name\": \"BIG LAND INVESTMENT CORPORATION, Appellant, v. LOMAS & NETTLETON FINANCIAL CORPORATION, Appellee\", \"name_abbreviation\": \"Big Land Investment Corp. v. Lomas & Nettleton Financial Corp.\", \"decision_date\": \"1983-01-07\", \"docket_number\": \"No. 6154\", \"first_page\": \"837\", \"last_page\": \"843\", \"citations\": \"657 P.2d 837\", \"volume\": \"657\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T18:59:25.249702+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before BURKE, C.J., and RABINOWITZ, MATTHEWS and COMPTON, JJ.\", \"parties\": \"BIG LAND INVESTMENT CORPORATION, Appellant, v. LOMAS & NETTLETON FINANCIAL CORPORATION, Appellee.\", \"head_matter\": \"BIG LAND INVESTMENT CORPORATION, Appellant, v. LOMAS & NETTLETON FINANCIAL CORPORATION, Appellee.\\nNo. 6154.\\nSupreme Court of Alaska.\\nJan. 7, 1983.\\nWarren C. Col ver, Warren C. Col ver & Associates, Anchorage, for appellant.\\nJohn C. Siemers, Burr, Pease & Kurtz, Anchorage, for appellee.\\nBefore BURKE, C.J., and RABINOWITZ, MATTHEWS and COMPTON, JJ.\", \"word_count\": \"3383\", \"char_count\": \"20279\", \"text\": \"OPINION\\nRABINOWITZ, Justice.\\nIn 1971, Big Land Investment Corporation, the owner of the then partially completed Gold Rush Hotel in Anchorage, found itself in dire financial straits. It had incurred substantial construction debts and was unable to pay its creditors. According to Big Land's general manager, David Grove, the only viable alternative was to sell the hotel, and the only available purchaser was Cox Enterprises, Inc. [\\\"CEI\\\"]. CEI was able to obtain short-term financing for $1,500,000 of the $1,750,000 purchase price from Lomas & Nettleton Financial Corporation [\\\"L & N\\\"], and Big Land agreed to take back a promissory note secured by a trust deed for the balance of the purchase price, $250,000. L & N also loaned CEI an additional $1,100,000 to complete construction of the hotel.\\nAs a condition to advancing CEI the $2,600,000 needed to purchase the hotel and to complete construction, L & N required that its deed of trust securing payment of its loan have priority over Big Land's trust deed. Big Land and CEI therefore executed a subordination agreement which gave L & N's trust deed priority over Big Land's. All parties to the transaction expected that the hotel would be completed within a year or two, and that upon completion the interim financing provided by L & N would be replaced with a twenty-year mortgage financed by Old Colony Cooperative Bank [\\\"Old Colony\\\"].\\nIn addition to the fact that the hotel was not a resounding success, Old Colony's long-term financing fell through in 1975. In 1979, L & N foreclosed and acquired the hotel at the foreclosure sale with an offset bid which approximately equaled the principal and interest then due on its $2,600,000 loan to CEI. Big Land received nothing from the foreclosure sale. It subsequently sued L & N, advancing a variety of claims for relief. Big Land sought either damages from L & N or rescission of the subordination agreement, alleging that L & N had breached express and implied terms of that agreement and had caused the hotel to be foreclosed at a price which was insufficient to satisfy Big Land's $250,000 secured claim. L & N's motion for summary judgment was granted in full. On May 20,1981, judgment was entered dismissing all of Big Land's claims with prejudice. The instant appeal followed.\\nI.\\nFor its first specification of error, Big Land asserts that the superior court erred in granting summary judgment against it when there existed genuine issues of fact as to whether L & N had breached duties owed to Big Land. The underlying premise of this specification of error is that L & N owed Big Land a duty to administer its loan to CEI with due care and had a concomitant duty to refrain from engaging in any conduct with CEI which materially increased the risk that CEI would default on the loan. Big Land relies on the judicially-developed doctrine of conditional subordination, which provides that a senior lienholder whose senior status results from a subordination agreement must refrain from taking actions which impair the subordinated lienholder's security.\\nBig Land claims that L & N, as a construction lender, owed it three implied duties arising out of the subordination agreement. These duties will be discussed separately.\\nA. The duty to monitor CEI's use of the construction loan.\\nBig Land concedes that \\\"[t]here was no evidence presented to the lower court that [the loan proceeds were] used for anything other than development of the property.\\\" This concession accurately describes the state of the record upon which the superior court granted summary judgment against Big Land. Thus, we find no merit in this contention. If the loan proceeds were used to construct the hotel, L & N could not have breached any implied duty on its part to ensure that the loan proceeds were used by CEI to pay construction expenses.\\nB. The duty to administer the loan with due care and in a conventional manner.\\nHere again our review of the record persuades us that Big Land failed to present any evidence as to what L & N did or failed to do prior to withdrawal of the Old Colony loan commitment which might have jeopardized the long-term financing, much less that L & N's actions departed from convention or were taken without due care.\\nC.The duty to avoid taking actions which would increase the risk that CEI would default on the loan.\\nBig Land argues that L & N was obligated not to act in a manner which increased the risk that CEI would default on the senior construction loan, and that several agreements between L & N and CEI materially increased that risk.\\nShortly after Old Colony withdrew its commitment to provide long-term financing, L & N and CEI entered into an agreement which modified the repayment terms of the $2,600,000 loan. Big Land argues that the amended note significantly increased the risk of default.\\nThe term of the amendment to which Big Land objects is that which changed the interest rate from 11% to a floating rate of two percent over prime. Big Land implies that the interest rate under the amendment exceeded that of the original note, that escalating interest payments magnified the risk that CEI would be unable to repay the L & N loan, and that CEI would fall behind on its other obligations. Assuming that Big Land might be entitled to relief if it could show that the 1975 amendment to the note increased the interest rate, the record indicates that the amendment rate of two percent over prime was well below the 11% rate prescribed by the original note. Thus, we conclude that there is no merit in Big Land's contention that L & N breached a duty owing to it by virtue of the modification of the interest rate on the CEI loan.\\nIn addition to the foregoing, Big Land argues that L & N increased the risk that CEI would default on the loan by entering into a forbearance agreement with CEI in 1977. In May 1977, L & N and CEI entered into an agreement by which L & N agreed not to proceed with its foreclosure because CEI had found a buyer willing to pay $4,000,000 for the hotel, an amount sufficient to retire both the L & N and the Big Land debts. A similar agreement was executed in August 1977. Big Land asserts that these forbearance agreements jeopardized its position. In this regard Big Land is claiming that L & N should have foreclosed rather than giving CEI a chance to sell the hotel. Even assuming that this argument were credible, Big Land nonetheless has made no showing that an immediate foreclosure would have left it in a better position.\\nAlternatively, Big Land argues that the forbearance agreements demonstrate L & N's lack of good faith because those agreements set forth a schedule according to which CEI was to pay past and current expenses and debts. The schedule specifically provided that CEI was not to make payments on indebtedness which was subordinate to L & N's loan. Again the record fails to disclose how this provision impaired Big Land's interests. CEI had made no payments on the Big Land loan in the preceding three years and neither intended, nor had the money, to make further payments on that loan at the time that it entered into the forbearance agreements with L & N.\\nThus, we conclude that as to the issue of conditional subordination, Big Land did not meet its obligation to \\\"set forth specific facts showing that [it] could produce evidence reasonably tending to dispute or contradict [L & N's] evidence and thus demonstrate that a material issue of fact exists,\\\" State v. Green, 586 P.2d 595, 606 n. 32 (Alaska 1978). We therefore hold that entry of summary judgment against Big Land was proper as to any claims for relief based on the doctrine of conditional subordination.\\nII.\\nWAS BIG LAND ENTITLED TO RESCIND THE SUBORDINATION AGREEMENT ON THE GROUND THAT OLD COLONY DID NOT PROVIDE LONG-TERM FINANCING?\\nBig Land argues that the superior court erred in granting summary judgment when there existed genuine issues of material fact as to whether Big Land was entitled to rescind the subordination agreement. The primary thrust of Big Land's argument is that the availability of long-term financing from Old Colony was a material element of its agreement to subordinate, and that it therefore is entitled to rescind the subordination agreement for breach of a material condition.\\nA. Would Big Land's note have been paid from the proceeds of the Old Colony loan?\\nBig Land first asserts that the only reason it agreed to subordinate its deed of trust to L & N's trust deed was because it expected that its $250,000 loan would be repaid from the proceeds of the long-term financing to be provided by Old Colony, and that therefore the subordination agreement is without effect because the Old Colony financing did not materialize.\\nThe $250,000 note executed by CEI in favor of Big Land provided for five annual payments of interest and a lump-sum payment of principal at the end of the fifth year. The note contained clauses which accelerated the maturity date upon sale of the hotel or upon CEI's obtaining long-term financing of at least $2,900,000. It is undisputed that the only long-term financing contemplated by the parties at the time of the sale was the Old Colony financing, which was for only $2,600,000. Thus, under the terms of the note Big Land would not have been entitled to payment had the Old Colony commitment been honored because that commitment was for less than $2,900,-000. The subordination agreement itself contains no terms stating that Big Land's agreement to subordinate was conditioned upon repayment of its loan from the proceeds of the Old Colony financing; indeed, Big Land's general manager testified that the parties, when negotiating the terms of the subordination agreement, selected $2,900,000 as the amount of the senior lien because everyone was aware that, unless long-term financing in excess of that amount were obtained, the proceeds of that financing would not be sufficient to repay both the L & N loan plus interest and the Big Land loan.\\nNotwithstanding the fact that none of the relevant documents, which were reviewed and approved by Big Land's attorney, provide that Big Land's note was to have been repaid from the proceeds of the Old Colony financing, Big Land argues that L & N and CEI represented that the note would be repaid from those proceeds and that it agreed to subordinate in reliance on those representations. Here again there is no evidence in the record indicating who, if anyone, made such a representation on behalf of L & N, and thus Big Land's allegation fails as to L & N for want of support. In view of the unambiguous terms of the subordination agreement, we conclude that the superior court correctly rejected Big Land's contention that its agreement to subordinate was expressly conditioned upon payment of its loan from the proceeds of Old Colony's financing.\\nB. Did Old Colony's failure to provide long-term financing defeat the parties' reasonable expectations?\\nBig Land's final argument is that all parties to the sale of the hotel and the loan and subordination agreements were operating under the assumption that Old Colony would provide permanent financing at some time in the not-too-distant future. Big Land asserts that, even had its note not been repaid from the proceeds of the Old Colony loan, its position would have been improved significantly had that loan been made, since the likelihood of CEI's defaulting on a twenty-year mortgage was far less than the likelihood of default on L & N's short-term construction loan. Big Land claims that we should interpret the subordination agreement in light of this factor and set that agreement aside because the parties' reasonable expectations were defeated when Old Colony withdrew its commitment.\\nThere is no doubt that Big Land, CEI, and L & N expected that Old Colony would provide long-term financing; thus the only real question is whether, as a matter of law, Big Land is entitled to avoid the subordination agreement on the ground that Old Colony backed out. Stated differently, the pertinent question is whether Big Land or L & N must bear the burden of an event which, on this record, was not the fault of either of them.\\nThe few courts that have considered this kind of situation have concluded that a lender- who advances funds in reliance on a subordination agreement is entitled to prevail, either because the subordinated party is estopped from denying his agreement to subordinate or because the senior lienholder is likened to a bona fide purchaser. See Dreckshage v. Community Federal Savings & Loan Association, 555 S.W.2d 314 (Mo.1977) (en banc); Comptroller v. Cards Realty Corp., 68 A.D.2d 186, 416 N.Y.S.2d 821 (1979) (per curiam). We agree with these authorities and hold that Big Land was not entitled to any relief because it turned out that Old Colony did not provide long-term financing.\\nAFFIRMED.\\nCONNOR, J., not participating.\\n. The $250,000 note called for interest at 6% per annum payable annually for five years with a balloon payment of the entire principal in five years.\\n. L & N's total interim financing loan was evidenced by a note for $2,600,000 secured by a first deed of trust on the property. The note was payable in full on September 15, 1972, with interest at 11% per annum subject to an increase to 15% per annum in the event CEI could not meet its obligations on the note.\\n. L & N was not a party to the subordination agreement, but that agreement was executed for the benefit of L & N. Under the terms of the subordination agreement, Big Land agreed that its deed of trust would be subordinated to the L & N first deed of trust, or to\\nany amended, extended, or otherwise changed, or substitute first deed of trust whereby the referenced deed of trust may be replaced, altered, increased in face amount to an amount not to exceed $2,900,000.00 or otherwise changed during the lifetime of the deed of trust herein subordinated.\\n. In November 1976, Big Land and L & N initiated separate foreclosure proceedings. CEI sought and obtained an injunction which halted both foreclosures and gave CEI \\\"a reasonable time to straighten up [its] affairs.\\\" In May and August of 1977, L & N twice agreed to forbear prosecution of its judicial foreclosure so that CEI could consummate a pending sale of the hotel to a purchaser willing to pay $4,000,000, a price sufficient to have satisfied both Big Land's and L & N's claims. The sale fell through, and Big Land renewed its foreclosure efforts. When the superior court indicated its willingness to allow Big Land to foreclose, CEI immediately filed for bankruptcy, which automatically stayed the foreclosure. The bankruptcy court subsequently vacated the stay as to both Big Land and L & N in September 1978, and L & N once again commenced foreclosure proceedings.\\n. In Stenehjem v. Cho, 631 P.2d 482, 488 (Alaska 1981), we observed that a subordinating seller's security often is dependent upon the success of the purchaser in developing the property. If the purchaser diverts the proceeds of the senior construction loan, or if the market value of the improvements is less than expected, the value of the property may be insufficient to satisfy both the senior and the subordinating seller's claims upon foreclosure. Although no court has gone so far as to suggest that a senior lienholder, under penalty of losing its senior status, is a guarantor of the success of a construction project, a number of courts have agreed that the senior lienholder must act in good faith and take measures, such as ensuring that the loan proceeds are not diverted by the purchaser-borrower, to protect the subordinated lienholder's security. See, e.g., Middle-brook-Anderson Co. v. Southwest Sav. & Loan Assoc., 18 Cal.App.3d 1023, 96 Cal.Rptr. 338 (1971); Hyatt v. Maryland Fed. Sav. & Loan Assoc., 42 Md.App. 623, 402 A.2d 118 (1979); Cambridge Acceptance Corp. v. Hockstein, 106 N.J.Super. 435, 246 A.2d 138 (Ct.App.Div.1968) (per curiam). See also Fikes v. First Fed. Sav. & Loan Assoc., 533 P.2d 251 (Alaska 1975), where this court placed a similar duty upon a construction lender which had prior knowledge of a third party's interest; the case did not involve a subordination agreement, but its principle may be applicable to subordination agreements.\\n. Big Land does not dispute that $1,500,000 of the L & N loan was used to pay Big Land's creditors.\\n. The record indicates that either L & N or CEI actually convinced Old Colony to extend its loan commitment for several years after September 21,1972, the date on which the commitment was to have expired.\\n. There is, however, evidence tending to show that, after Old Colony backed out, both L & N and CEI made repeated attempts to find alternative long-term financing. Perhaps the most telling observation concerning the problems involved in obtaining long-term financing is Edna Cox's statement that the hotel was plagued with a bad reputation because of numerous fires:\\nWe've had very interested parties!;] usually it's that two different banks were going to give us the commitment. And, it seems like when they contacted the bank up here, whoever the banker was, I've never been able to find out, would say, \\\"Well, don't touch them. That's the old Goldrush that burned four or five times.\\\" We really accumulated, not only our own three fires, but they blamed us for the other two previous fires. So, it was a bad package to sell.\\nWe note that Big Land appears to be arguing that L & N must have done something wrong because Old Colony withdrew its loan commitment which was conditioned upon completion of the hotel, at a time when only two weeks' work was necessary to complete the hotel. Even assuming that completion of the hotel was delayed for several years, Big Land did not show that such delay could be attributed to misconduct or lack of care on L & N's part.\\n.The terms of the original note provided for interest at 15% after default, and thus Big Land is not entirely correct in contending that the rate would have been 11% had CEI and L & N not agreed to amend the note.\\n. Big Land also argues that L & N wrongfully interfered with Big Land's attempts to foreclose its $250,000 Deed of Trust. Big Land made no showing that L & N's action in preventing Big Land from foreclosing its junior security interest was the product of ill will or malice. In our view, L & N was privileged to object to, as well as to take steps to block, Big Land's attempt to foreclose its junior security interest. Compare Bendix Corp. v. Adams, 610 P.2d 24, 30 (Alaska 1980). Given L & N's significant and senior (relative to Big Land) financial interest in the property, it had (absent ill will or malice) the right and privilege to take whatever reasonable steps it deemed necessary to protect its economic interest in the property.\\n. A step in legal reasoning is omitted from Big Land's argument. Essentially, it demands: (1) reformation of the subordination agreement to include a condition, then, (2) rescission for failure of that condition.\\n. In response to L & N's requests for admissions, Big Land agreed that the subordination agreement was not ambiguous. In the instant case, the subordination agreement is completely integrated. This factor furnishes an additional ground for concluding that Big Land is not entitled to relief on the basis of its assertion that its subordination agreement was conditioned upon the receipt of long-term financing from Old Colony. Johnson v. Curran, 633 P.2d 994, 996 (Alaska 1981); National Bank of Alaska v. J.B.L. & K. of Alaska, Inc., 546 P.2d 579, 582-83 (Alaska 1976).\\n. Although Big Land seeks \\\"merely\\\" rescission of the subordination agreement, obviously it is not possible to restore the parties to their pretransaction positions, as rescission is designed to do. Big Land's senior status could, of course, be reinstated, but it is not possible to undo the $2,600,000 loan made by L & N in reliance on Big Land's agreement to subordinate.\"}"
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+"{\"id\": \"10436233\", \"name\": \"STATE of Alaska, Appellant, v. Travis Dean WILLIAMS, Appellee\", \"name_abbreviation\": \"State v. Williams\", \"decision_date\": \"1982-11-05\", \"docket_number\": \"No. 6025\", \"first_page\": \"1067\", \"last_page\": \"1071\", \"citations\": \"653 P.2d 1067\", \"volume\": \"653\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Court of Appeals\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T22:09:33.045387+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before BRYNER, C.J., and COATS and SINGLETON, JJ.\", \"parties\": \"STATE of Alaska, Appellant, v. Travis Dean WILLIAMS, Appellee.\", \"head_matter\": \"STATE of Alaska, Appellant, v. Travis Dean WILLIAMS, Appellee.\\nNo. 6025.\\nCourt of Appeals of Alaska.\\nNov. 5, 1982.\\nCharles M. Merriner, Asst. Atty. Gen., Anchorage, and Wilson L. Condon, Atty. Gen., Juneau, for appellant.\\nWilliam H. Fuld and David J. Schmid, Kay, Christie, Fuld, Saville & Coffey, Anchorage, for appellee.\\nBefore BRYNER, C.J., and COATS and SINGLETON, JJ.\", \"word_count\": \"2737\", \"char_count\": \"16397\", \"text\": \"OPINION\\nCOATS, Judge.\\nFollowing Travis Dean Williams' acquittal of a charge of murder in the first degree, the state charged him with two counts of hindering prosecution in the first degree, AS 11.56.770, and with one count of tampering with evidence, AS 11.56.610. Superior Court Judge Ralph E. Moody dismissed the indictment on double jeopardy grounds. The state now appeals, arguing only that it was improper to have dismissed the charge of tampering with evidence.\\nOn the evening of March 10, 1980, the body of Thomas Andrus was found in his burning pickup truck on a road near Peters Creek. Travis Dean Williams was indicted for the murder of Andrus. The state's case before the grand jury consisted of proof that Williams and Andrus were together the night of the homicide. Both were highly intoxicated. One important witness against Williams was Joyce Andrus, Thomas Andrus' wife. She testified that she had last seen her husband alive shortly before the homicide. She had left him at their home, a trailer, with Williams. The investigation of the Andrus homicide established that Andrus had probably been struck in the fact with a vodka bottle and strangled with an appliance cord. Andrus' body was then dragged to his pickup truck which was driven a short distance to the place where it was discovered. The truck was then set on fire. Lucy Moody testified that she saw a man she later identified as Williams run across the street near the burning pickup truck in which Andrus' body was found. Another witness, Donald Ohler, identified Williams as a man he met on the evening of the homicide at the Bella Vista Pizza Parlor, which was located several hundred yards from the burning truck. Ohler gave Williams a ride into town and then back to Peters Creek. During that ride Williams made several statements. He said he did \\\"something very bad tonight\\\" and that he had done \\\"a very nasty thing.\\\" At the scene of the pickup truck Ohler informed the police of his suspicious contact with Williams. Ohler pointed out Williams to Anchorage Police Department Officer Greg Baker, and Baker took Williams into custody. Baker testified that on the way to the police station Williams spontaneously stated, \\\"I ain't got no gun and I didn't rob the son of a bitch.\\\"\\nThe state presented this evidence at trial, except for the critical testimony of Joyce Andrus. She had apparently left the jurisdiction and could not be located to testify at trial. At trial Williams testified in his own defense. He stated that at about 8:00 o'clock on the evening in question, he and Andrus went to Andrus' trailer. They were falling down drunk. Williams stated he just headed for the back bedroom, flopped on the bed, and either passed out or fell asleep. He stated that the next thing he knew, Joyce Andrus woke him screaming, \\\"You got to help me. Tom's dead.\\\" Williams testified that he got up and found Tom laying on the floor with a cord around his neck. Joyce left in the Andrus' Blazer. According to Williams, he then tried to clean up the trailer by wiping up the blood. He then loaded the body in Andrus' pickup truck and drove off. He drove about a mile when the truck died. He could not start the truck so he poured a gallon of chainsaw gas in the cab and set it on fire. He then fled, but was apprehended by the police later that evening.\\nAt the end of the trial, the state filed proposed jury instructions that would have permitted the jury to consider the crimes of hindering prosecution in the first degree and tampering with physical evidence. Williams objected, arguing that these were not lesser included offenses. Trial judge Mark Rowland agreed and refused to instruct on these offenses.\\nThe jury acquitted Williams of first degree murder and of all the lesser homicide offenses. Five days later, Williams was indicted on two counts of hindering prosecution in the first degree and on one count of tampering with evidence. The state now appeals arguing that Judge Moody erred in dismissing the charge of tampering with evidence.\\nWilliams argues that, aside from any double jeopardy claim, Alaska Rule of Criminal Procedure 45, the speedy trial rule, stands as a bar to his prosecution on a charge of tampering with evidence. Williams argued this issue in the trial court, but since Judge Moody decided the double jeopardy claim in Williams' favor claim he found it unnecessary to decide the Criminal Rule 45 issue. Williams continues to assert the double jeopardy claim on appeal but suggests that we do not need to reach that constitutional question if we find that his rights were violated under Criminal Rule 45. We agree with Williams that we should not reach the constitutional double jeopardy issue if the issue can be readily resolved by applying the Alaska Rules of Criminal Procedure.\\nWilliams' argum\\u00e9nt rests on the fact that he was arrested for murder on March 10,1980 and was not indicted for tampering with evidence until nearly ten months later, on January 6, 1981. Criminal Rule 45 requires Williams to be tried within 120 days, less periods which are excluded by the rule. Williams contends his arrest on the murder charge should start the 120 day period running and that his indictment for tampering with evidence took place far beyond the 120 day time period.\\nWe have concluded that Williams is correct in his assertion that his arrest on the murder charge started the 120 day period running. At the time of Williams' prosecution, Criminal Rule 45(c)(1) stated in part:\\n(c) When Time Commences to Run. The time for trial shall begin running, without demand by the defendant, as follows:\\n(1) From the date the defendant is arrested, initially arraigned, or from the date the charge (complaint, indictment, or information) is served upon the defendant, whichever is first . The arrest, arraignment, or service upon the defendant of a complaint, indictment, or information, relating to subsequent charges arising out of the same conduct, or the refiling of the original charge, shall not extend the time, unless the evidence on which the new charge is based was not available to the prosecution at the time the defendant was either initially arrested, arraigned, or served with the original charge, and a showing of due diligence in securing the defendant for the original charges is made by the prosecution. [Emphasis supplied.]\\nJudge Moody found that the evidence which was presented in the indictment for tampering with evidence was essentially the same evidence which the prosecution presented to the grand jury which indicted Williams for murder and at his trial on that charge. This finding is supported by the record. The only substantially different information which the prosecution presented to the second grand jury but did not present to the grand jury which indicted Williams for murder was Williams' trial testimony. In that testimony Williams merely reinforced most of the state's evidence while denying the murder of Andrus. The state's theory at the murder trial was that Williams was with Andrus shortly before the homicide and that he had disposed of Andrus' body. The state asked the jury to infer from these facts and Williams' statements that Williams was the person who killed Andrus. Williams admitted being with Andrus and admitted disposing of Andrus' body. We conclude that the tampering with evidence charge arose from the same conduct as the murder charge and that Williams' arrest on the murder charge started the Criminal Rule 45 time period. See Peterson v. State, 562 P.2d 1350, 1358 (Alaska 1977).\\nWe also agree with Williams that under the circumstances of this case, Criminal Rule 45 was not tolled under the provision of Criminal Rule 45(c)(1) because \\\"the evidence on which the new charge [was] based was not available to the prosecution at the time the defendant was either initially arrested, arraigned, or served with the original charge.\\\" The state conceded at oral argument that there was sufficient evidence to convict Williams of tampering with evidence when he was indicted for murder. We agree that the record supports that conclusion. The state had an extremely strong case against Williams for tampering with evidence. That case was not significantly enhanced by Williams' admission that he had tampered with evidence. Under the circumstances of this case it is clear that Criminal Rule 45 should not have been extended because new evidence was made available to the prosecution at Williams' trial.\\nThe state contends that even if Criminal Rule 45 starts running on the tampering with evidence charge from the time when Williams was arrested on the murder charge, Williams several times waived his rights under Criminal Rule 45. In a memorandum filed in superior court the state argues that only ninety-four days had elapsed because of various continuances requested by or assented to by Williams.\\\" The state argues that the continuances must be deducted under Criminal Rule 45(d)(1), (2)-(3). Williams argues that he only waived his speedy trial rights as to the murder charge and that he never waived any speedy trial rights as to the tampering with evidence charge.\\nWe agree with Williams that the policies set forth in Criminal Rule 45 require us to decide in his favor. A defendant can waive his right to a speedy trial under Criminal Rule 45, but a waiver should generally be only with the defendant's informed consent. See Criminal Rule 45(d)(2). We do not have to decide in this appeal whether the prosecution could have used Williams' waiver of speedy trial to charge him with tampering with evidence before his trial on the murder charge. However, it seems clear that in executing his waivers of his right to speedy trial Williams certainly did not intend to allow the state to try him on the murder charge and then, based upon the same evidence presented at the murder trial, later try him on a theory of tampering with evidence based upon the same conduct. We find that Williams' waivers of speedy trial were ineffective as to a second trial based upon the tampering with evidence charge where the tampering with evidence charges were filed after his murder trial. Since Williams' waivers of speedy trial were ineffective as to the tampering with evidence charge, we conclude that Williams was not brought to trial within the time allowed by Criminal Rule 45. We therefore find that the trial court was correct in dismissing the charge against Williams. Criminal Rule 45(g).\\nThe judgment is AFFIRMED.\\n. AS 11.56.770 provides:\\n(a) A person commits the crime of hindering prosecution in the first degree if he renders assistance to a person who has committed a crime punishable as a felony with intent to\\n(1) hinder the apprehension, prosecution, conviction, or punishment of that person; or\\n(2) assist that person in profiting or benefiting from the commission of the crime.\\n(b) For purposes of this section, a person \\\"renders assistance\\\" to another if he\\n(1) harbors or conceals that person;\\n(2) warns that person of impending discovery or apprehension;\\n(3) provides or aids in providing that person with money, transportation, a dangerous instrument, a disguise, or other means of avoiding discovery or apprehension;\\n(4) prevents or obstructs, by means of force, threat, or deception, anyone from performing an act which might aid in the discovery or apprehension of that person;\\n(5) suppresses by an act of concealment, alteration, or destruction physical evidence which might aid in the discovery or apprehension of that person; or\\n(6)aids that person in securing or protecting the proceeds of the crime.\\n(c)Hindering prosecution in the first degree is a class C felony.\\n. AS 11.56.610 provides:\\n(a) A person commits the crime of tampering with physical evidence if he\\n(1) destroys, mutilates, alters, suppresses, conceals, or removes physical evidence with intent to impair its verity or availability in an official proceeding or a criminal investigation;\\n(2) makes, presents, or uses physical evidence, knowing it to be false, with intent to mislead a juror who is engaged in an official proceeding or a criminal investigation;\\n(3) prevents the production of physical evidence in an official proceeding or a criminal investigation by the use of force, threat, or deception against anyone; or\\n(4) does any act described by (1), (2), or (3) of this subsection with intent to prevent the institution of an official proceeding.\\n(b) Tampering with physical evidence is a class C felony.\\n. Criminal Rule 45(b) provides that \\\"[a] defendant charged with a felony . shall be tried within 120 days from the time set forth in paragraph (c) of this rule.\\\"\\n. The current Criminal Rule 45(c)(1) substitutes \\\"of the original commencement date of the 120 day period\\\" for \\\"the defendant was either initially arrested, arraigned, or served with the original charge.\\\"\\n. Criminal Rule 45(d)(1) \\u2014 <3) reads:\\n(d) Excluded Periods. The following periods shall be excluded in computing the time for trial:\\n(1) The period of delay resulting from other proceedings concerning the defendant, including but not limited to motions to dismiss or suppress, examinations and hearings on competency, the period during which the defendant is incompetent to stand trial, interlocutory appeals, and trial of other charges. No pre-trial motion shall be held under advisement for more than 30 days and any time longer than 30 days shall not be considered as an excluded period.\\n(2) The period of delay resulting from an adjournment or continuance granted at the timely request or with the consent of the defendant and his counsel. The court shall grant such a continuance only if it is satisfied that the postponement is in the interest of justice, taking into account the public interest in the prompt disposition of criminal offenses. A defendant without counsel shall not be deemed to have consented to a continuance unless he has been advised by the court of his right to a speedy trial under this rule and of the effect of his consent.\\n(3)The period of delay resulting from a continuance granted at the timely request of the prosecution, if:\\n(a) The continuance is granted because of the unavailability of evidence material to the state's case, when the prosecuting attorney has exercised due diligence to obtain such evidence and there are reasonable grounds to believe that such evidence will be available at the later date; or\\n(b) The continuance is granted to allow the prosecuting attorney in a felony case additional time to prepare the state's case and additional time is justified because of the exceptional complexity of the particular case.\\n. The state contends that Criminal Rule 45 is not a rule of procedure but confers a substantive right on a defendant to be tried within 120 days. The state argues that if Criminal Rule 45 is substantive, the rule is an unconstitutional use of the supreme court rule making power conferred by article IV, \\u00a7 15 of the Alaska Constitution. That section reads:\\nRule-Making Power. The supreme court shall make and promulgate rules governing the administration of all courts. It shall make and promulgate rules governing practice and procedure in civil and criminal cases in all courts. These rules may be changed by the legislature by two-thirds vote of the members elected to each house.\\nThe question of whether Criminal Rule 45 is a substantive rule which is an unconstitutional exercise of the supreme court's rule making power has been before the supreme court twice. Neither time did the court reach the question of the rule's constitutionality. James v. State, 567 P.2d 298, 299-300 n. 3 (Alaska 1977); Peterson v. State, 562 P.2d 1350 (Alaska 1977).\\nUnder these circumstances, where the supreme court has promulgated Criminal Rule 45 and twice had an opportunity to review whether that rule was promulgated in violation of article IV, \\u00a7 15, we believe that the supreme court has determined that Criminal Rule 45 is not an unconstitutional exercise of its rule making power. We accordingly reject the state's argument.\"}"
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+"{\"id\": \"10439962\", \"name\": \"GENERAL CONSTRUCTION COMPANY, Appellant, v. TYONEK TIMBER, INC., Appellee\", \"name_abbreviation\": \"General Construction Co. v. Tyonek Timber, Inc.\", \"decision_date\": \"1981-06-19\", \"docket_number\": \"No. 5175\", \"first_page\": \"981\", \"last_page\": \"985\", \"citations\": \"629 P.2d 981\", \"volume\": \"629\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-11T02:41:34.706397+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before RABINOWITZ, C. J., and CON-NOR, BURKE and MATTHEWS, JJ., and STEWART, Superior Court Judge.\", \"parties\": \"GENERAL CONSTRUCTION COMPANY, Appellant, v. TYONEK TIMBER, INC., Appellee.\", \"head_matter\": \"GENERAL CONSTRUCTION COMPANY, Appellant, v. TYONEK TIMBER, INC., Appellee.\\nNo. 5175.\\nSupreme Court of Alaska.\\nJune 19, 1981.\\nDennis L. McCarty, Ellis Law Offices, Ketchikan, and Arthur B. McGarry, Oles, Morrison, Rinker, Stanislaw & Ashbaugh, Seattle, for appellant.\\nPhyllis C. Johnson, John M. Conway, Atkinson, Conway, Bell & Gagnon, Anchorage, for appellee.\\nBefore RABINOWITZ, C. J., and CON-NOR, BURKE and MATTHEWS, JJ., and STEWART, Superior Court Judge.\", \"word_count\": \"2066\", \"char_count\": \"12367\", \"text\": \"OPINION\\nMATTHEWS, Justice.\\nOn May 20, 1974, Kodiak Lumber Mills, Inc. (KLM) contracted with General Construction Co. for the construction of a deep water dock at Tyonek to be used for loading ships with wood products obtained from the surrounding area. The work on the dock began a few months thereafter. At the same time Tyonek Timber, Inc. was in the process of building a chip mill for KLM near the dock area.\\nA dispute arose between General and KLM concerning whose responsibility it was under the dock construction contract to haul material to the dock area to protect the dock pilings from the effects of tidal currents. While this dispute remained unresolved, Tyonek entered into an oral agreement with General to transport the material at the price of $9.00 per yard.\\nAfter the oral agreement was reached Tyonek moved the material to the dock area and General placed it around the pilings. Tyonek submitted a bill to General for this service and, when the bill went unpaid, filed suit against General. At the trial, there was no dispute as to the amount of material which Tyonek had hauled. General, however, contended that under the terms of the oral contract Tyonek was to transport the material to the site and place it around the dock pilings. Therefore, General claimed that Tyonek had not substantially performed its contract. In addition, General argued that Tyonek could not recover upon a theory of unjust enrichment because General had not been unjustly enriched since General's obligation under the prime contract with KLM did not cover hauling the material to the site. General suggested therefore that any recovery to Tyonek for unjust enrichment should be sought from KLM, not General.\\nThe case was tried to the court sitting without a jury. The court found that the agreement between Tyonek and General only included hauling the material to the site, not placing it next to the dock pilings. The court went on to examine the terms of the contract between KLM and General, stating:\\nThe question central to a decision in this case is, what was the intent of the parties regarding the scour protection fill? If, as it contends, General was under no contractual obligation to haul the fill, then it appears that Tyonek Timber has no claim against General for hauling what the owner was bound to furnish. If, on the other hand, General was obligated under the contract to furnish and place the fill, then Tyonek Timber is entitled to the agreed on price for furnishing the material.\\nThe court then concluded that as between General and KLM, General was required to haul the material. The court directed entry of judgment in favor of Tyonek against General in the sum of $48,150.00 plus costs and attorney's fees.\\nOn appeal General argues that the trial court erred in two respects:\\n(1) In holding that General was bound under the contract with KLM to haul the scour protection material to the project site, and\\n(2) in holding that KLM did not breach an implied warranty that adequate scour protection material would be available at the gravel pit at the site.\\nGeneral does not challenge the finding of the trial court that Tyonek was not obligated to place the material next to the pilings under the terms of the oral agreement with Tyonek. That finding therefore stands and, in our view, is dispositive of the case.\\nThe conclusions of the court concerning the terms of the contract between KLM and General are not germane to the present case unless Tyonek's status as a corporation separate from KLM is to be disregarded, or unless Tyonek was acting as an agent for KLM in making the oral contract. General argues that the court must have accepted one of these theories. For the following reasons we believe that neither theory could have been appropriately applied to this case.\\nThe trial court did not expressly conclude that Tyonek and KLM should be considered as one entity. Moreover, the court made no findings of fact which would support such a conclusion. Further, the question of whether Tyonek and KLM should be regarded as the same entity was not presented to the trial court either by the pleadings, or the briefs and arguments of counsel.\\nThe evidence presented at the trial which would have been relevant to the issue would not have justified treating Tyonek and KLM as the same corporation. In Jackson v. General Electric Company, 514 P.2d 1170 (Alaska 1973) we noted that the corporate status of a subsidiary can be disregarded\\nwhen the parent uses a separate corporate form to defeat public convenienc\\u00e9, justify wrong, commit fraud, or defend crime. The parent corporation may also be liable for the wrongful conduct of its subsidiary when the subsidiary is the mere instrumentality of the parent. Liability is imposed in such instances simply because the two corporations are so closely intertwined that they do not merit treatment as separate entities. [Footnotes omitted]\\nId. at 1172-73. We noted 11 factors which may be relevant in ascertaining whether a subsidiary is acting as the mere instrumentality of its parent:\\n(a) The parent corporation owns all or most of the capital stock of the subsidiary.\\n(b) The parent and subsidiary corporations have common directors or officers.\\n(c) The parent corporation finances the subsidiary.\\n(d) The parent corporation subscribes to all the capital stock of the subsidiary or otherwise causes its incorporation.\\n(e) The subsidiary has grossly inadequate capital.\\n(f) The parent corporation pays the salaries and other expenses or losses of the subsidiary.\\n(g) The subsidiary has substantially no business except with the parent corporation or no assets except those conveyed to it by the parent corporation.\\n(h) In the papers of the parent corporation or in the statements of its officers, the subsidiary is described as a department or division of the parent corporation, or its business or financial responsibility is referred to as the parent corporation's own.\\n(i) The parent corporation uses the property of the subsidiary as its own.\\n(j) The directors or executives of the subsidiary do not act independently in the interest of the subsidiary but take their orders from the parent corporation in the latter's interest.\\n(k) The formal legal requirements of the subsidiary are not observed.\\nId. at 1173. We stated concerning these factors that it is not necessary that all of them be found in order to conclude that the subsidiary's separate status should be ignored. \\\"A parent corporation which does not permit its subsidiary to exercise an individual status may not expect that the subsidiary's independence will be recognized elsewhere.\\\" 514 P.2d at 1173.\\nIn Bendix Corp. v. Adams, 610 P.2d 24, 32 (Alaska 1980), we alluded to the factors listed in Jackson, but found them to be of secondary importance, stating:\\n[M]ore important than the quantitative approach . is the fact that there is no suggestion anywhere in the record that [the subsidiary] was created to \\\"defeat public convenience, justify wrong, commit fraud, or defend crime.\\\"\\nHere, as in Bendix, no contention is made that KLM used Tyonek to defeat public policy or perpetrate a wrong or fraud or crime. Moreover, under the quantitative approach suggested in Jackson, there is an insufficient showing of interrelatedness. All we are told is that at the time in question 50% of Tyonek's stock was owned by KLM; Tyonek had a four person board of directors two of whom also served as directors of KLM; John Daly, a vice president of KLM, was also vice president of Tyonek; and KLM provided financing to Tyonek which Tyonek used to acquire vari ous pieces of equipment some of which were used to haul the material in question. On the other hand, 50% of Tyonek's stock was owned by Richard and Meredith Sykes, both of whom served as directors of Tyonek. Richard Sykes was president of Tyonek and neither Richard nor Meredith Sykes were officers, directors, or employees of KLM. There was no showing that KLM caused the incorporation of Tyonek; that Tyonek had grossly inadequate capital; that KLM paid the salaries, expenses or losses of Tyonek; that Tyonek had no business except with KLM, or no assets except those which were conveyed by KLM; that Tyonek was held out merely as a division of KLM; that KLM used Tyonek's property as its own; that Richard Sykes took orders from KLM; or that the formal legal requirements of Tyonek as a separate corporation were not observed. On this record, therefore, no conclusion that Tyonek should be treated as the same entity as KLM could be sustained.\\nGeneral's contention that Tyonek was acting merely as an agent for KLM in making the oral contract with General is also unsupportable. To establish an agency relationship between Tyonek and KLM, General must show that Tyonek made the oral contract with it on behalf of KLM and not as a separate corporate entity. The court did not expressly conclude that an agency existed, and made no findings of fact which would support such a conclusion. On the evidence presented, such a conclusion would have been clearly erroneous.\\nJohn Daly testified that Richard Sykes was not authorized to speak for KLM. There is no evidence that either Tyonek or KLM expressly or impliedly represented that Tyonek had the authority to act for KLM. The only evidence, apart from that concerning the interrelationships of the two corporations which we have discussed above, which tends to indicate that Tyonek contracted as an agent of KLM rather than on its own behalf is a statement of John A. Beyer, president of General. He testified that at the meeting at which the oral contract was made \\\"there was Red Bingham, Bill Epping and myself representing General, and John Daly, Cosby Steen and Dick Sykes representing Kodiak.\\\" This assertion, although relevant, was not \\u00bfxplained, and was undercut by other assertions of Beyer. He stated that there often were disputes between Sykes and the people working for General Construction which \\\"caused a kind of unhappy feeling between him and our employees and we frankly never were understanding about what his position was in the matter anyway.\\\" Further, Beyer acknowledged that the oral contract for hauling material was not between General and KLM but between General and \\\"a third party.\\\" The testimony of William H. Epping, another officer of General who was present at the same meeting, supports the view that General understood that it was making a subcontract with Tyonek. Epping was asked and answered as follows:\\nQ. So it was your clear impression as a result of that discussion that, in essence, what had happened was that the aspect of that original contract between Kodiak Lumber Mill and General Construction to place scour protection was subcontracted to Tyonek Timber and that instead of you placing the scour protection for Kodiak Lumber, Tyonek Timber would do that aspect of the contract?\\nA. Correct.\\nIn summary, the court's findings concerning the nature of the contract between KLM and General are irrelevant to this appeal because Tyonek and KLM were separate entities and Tyonek was not merely an agent of KLM in making the oral con tract with General on which this lawsuit was based. Tyonek has performed its obligations under the oral contract and it is entitled to be compensated for its performance.\\nThe judgment is AFFIRMED.\\n. A subsidiary is not presumed to be the agent of its parent corporation. Bendix Corp. v. Adams, 610 P.2d 24, 33 (Alaska 1980).\\n. Beyer was asked and answered as follows:\\nQ. Now the initial contract was between you and Kodiak Lumber Mill; is that correct?\\nA. Correct.\\nQ. Was there any problem with delegating that work to a third party?\\nA. No, there was not because John Daly was right there when the agreement was made and John Daly looked to Dick Sykes for advice constantly and pretty much whatever Dick said John Daly did, so I didn't think there was any particular problem in that regard.\"}"
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+"{\"id\": \"10446270\", \"name\": \"David SAGANNA, Appellant, v. STATE of Alaska, Appellee\", \"name_abbreviation\": \"Saganna v. State\", \"decision_date\": \"1979-05-04\", \"docket_number\": \"No. 4019\", \"first_page\": \"69\", \"last_page\": \"71\", \"citations\": \"594 P.2d 69\", \"volume\": \"594\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T22:44:22.385621+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before BOOCHEVER, C. J., and RABI-NO WITZ, CONNOR, BURKE and MATTHEWS, JJ.\", \"parties\": \"David SAGANNA, Appellant, v. STATE of Alaska, Appellee.\", \"head_matter\": \"David SAGANNA, Appellant, v. STATE of Alaska, Appellee.\\nNo. 4019.\\nSupreme Court of Alaska.\\nMay 4, 1979.\\nStephen D. Cramer, of Merdes, Schaible, Staley & DeLisio, Fairbanks, for appellant.\\nBill D. Murphree and Rhonda F. Butter-field, Asst. Dist. Attys., Harry L. Davis, Dist. Atty., Fairbanks, Avrum M. Gross, Atty. Gen., Juneau, for appellee.\\nBefore BOOCHEVER, C. J., and RABI-NO WITZ, CONNOR, BURKE and MATTHEWS, JJ.\", \"word_count\": \"759\", \"char_count\": \"4799\", \"text\": \"OPINION\\nPER CURIAM.\\nThis is a sentence appeal. David Sagan-na pleaded no contest to the offense of receiving stolen property having a value of more than $250, consisting of a soapstone carving which had been stolen from the House of Wood in Fairbanks, Alaska. He was sentenced to three years imprisonment, the maximum sentence permissible under the applicable statute, AS 11.20.350(a). The court also strongly recommended that the Division of Corrections permit Saganna to attend the Comprehensive Alcoholism Program for treatment.\\nSaganna argues that the trial court was clearly mistaken in imposing the maximum sentence because the court stated during the sentencing proceedings that Saganna was not the worst type of offender within the class of persons committing this offense.\\nSaganna was twenty-four years old at the time of sentencing. He had worked at various jobs as an adult. It appears that during periodic drinking episodes Saganna tended to run afoul of the law. He had one previous felony conviction, for assault with a dangerous weapon, and twelve misdemeanor convictions on his record.\\nIn the past, we have stated that \\\"maximum sentences should not be imposed without some foundation for characterizing a defendant as the worst type of offender.\\\" Galaktionoff v. State, 486 P.2d 919, 924 (Alaska 1971). In most cases, worst offender characterization will involve factors intrinsic and extrinsic to the particular offense. Our decisions reveal, however, that a person may be characterized as a worst offender based solely on elements intrinsic to the particular crime for which the defendant is being sentenced, see, e. g., Burleson v. State, 543 P.2d 1195, 1200-02 (Alaska 1975) (particularly brutal mayhem offense involving sulfuric acid), or based solely on elements extrinsic to the particular crime, see, e. g., Waters v. State, 483 P.2d 199, 201-02 (Alaska 1971) (defendant's prior criminal record supported worst offender classification even though particular offense, viewed in isolation, would not have). Judge Hodges' comments to Saganna at sentencing go no further than indicating that Saganna's particular offense was rather mild in character, but that his prior. record and history of alcohol abuse required imposition of the maximum sentence. We believe that the record supports characterization of Saganna as the worst type of offender based upon his extensive prior criminal record, a factor we have held to be of \\\"particular significance\\\" to the determination of worst offender status. State v. Wortham, 537 P.2d 1117, 1119 (Alaska 1975).\\nFrom our review of the record, it appears that the trial court imposed the maximum sentence in order to isolate the offender from society and to provide the motivation for him to complete the Comprehensive Alcoholism Program. The court noted that if the defendant completed the program, he would probably be eligible for parole after serving approximately one year of his sentence. The court rejected the possibility of a suspended sentence or a suspended imposition of sentence, in view of the defendant's substantial history of antisocial conduct related to alcohol.\\nOur review of the record leads us to the conclusion that in imposing sentence, the was not clearly mistaken. State, 519 P.2d 811 (Alaska trial court McClain v. 1974).\\nAFFIRMED.\\n. These consisted of four convictions for disorderly conduct, two convictions for being intoxicated on a public highway, two convictions for petty larceny, and one conviction each for aiding an escape, for occupying a building not his own, for disturbing the peace, and for negligent driving.\\n. See State v. Wortham, 537 P.2d 1117, 1120 (Alaska 1975) (factors which may be relied on to support worst offender characterization).\\n. Addressing the defendant, the sentencing court stated:\\nYou are certainly not the worst offender, within the class. That on a receiving and concealing case, you're at the bottom of the list in terms of seriousness. This was a very inadept attempt at any criminal conduct. If you did not have a prior history, if you did have an alcohol problem, the court would probably give you a suspended imposition of sentence and a short period of time in custody would be sufficient. But, as I've mentioned, because it is not your first felony conviction, you have a long history, this court feels it's necessary to impose that type of sentence.\"}"
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+"{\"id\": \"10447887\", \"name\": \"Albert S. VALENTINE, Appellant, v. STATE of Alaska, Appellee\", \"name_abbreviation\": \"Valentine v. State\", \"decision_date\": \"1980-05-30\", \"docket_number\": \"No. 4124\", \"first_page\": \"751\", \"last_page\": \"755\", \"citations\": \"617 P.2d 751\", \"volume\": \"617\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T18:25:40.644665+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before RABINOWITZ, C. J., and CON-NOR, BOOCHEVER, BURKE and MATTHEWS, JJ.\", \"parties\": \"Albert S. VALENTINE, Appellant, v. STATE of Alaska, Appellee.\", \"head_matter\": \"Albert S. VALENTINE, Appellant, v. STATE of Alaska, Appellee.\\nNo. 4124.\\nSupreme Court of Alaska.\\nMay 30, 1980.\\nJames E. Douglas, Offices of Fred J. Baxter, Juneau, for appellant.\\nLarry Weeks, Dist. Atty., Daniel W. Hickey, Chief Prosecutor, and Avrum M. Gross, Atty. Gen., Juneau, for appellee.\\nBefore RABINOWITZ, C. J., and CON-NOR, BOOCHEVER, BURKE and MATTHEWS, JJ.\", \"word_count\": \"2481\", \"char_count\": \"15132\", \"text\": \"OPINION\\nRABINOWITZ, Chief Justice.\\nAlbert Valentine appeals his conviction of manslaughter for the killing of nine-year-old Billy Evenson, his half-brother. The charge arose from an incident when Valentine was babysitting for his four younger siblings and a friend at their apartment in Juneau. Valentine accidentally knocked over a box, and one boy found their mother's old derringer. Everyone started playing with it; Valentine aimed the pistol at the boys and pulled the trigger in jest. One of the boys told him that the gun did not work, and Valentine remembered hearing this from his mother, too. Billy then brought Valentine some ammunition, and Valentine loaded the gun; he went outside and pulled the trigger several times without results. He brought the loaded gun back inside and continued to play with it. According to Valentine's testimony, he did not believe the gun was pointed toward any of the children when he squeezed the trigger and the gun fired, but Billy jumped into the line of fire. Valentine was sentenced to a four-year suspended sentence.\\nOn appeal, Valentine claims error in three rulings of the superior court. He asserts that the superior court erred in denying his requested instruction on the lesser included offense of careless use of firearms; that the trial court abused its discretion in admitting into evidence two autopsy photographs; and that prejudicial prosecutorial misconduct occurred in closing argument which was not cured by the superior court's cautionary instruction.\\nAt trial, Valentine's attorney requested a jury instruction on the lesser included offense of careless use of firearms. This request was denied after extensive discussion between the trial court and Valentine's counsel as to what interpretation was to be placed on the manslaughter and careless use of firearms statutes. We have previously set forth as general principles in considering a claim of error for failure to give a lesser included offense the following:\\nGenerally, it is held that the elements of the included offense must be fewer in number than the elements of the greater offense or, stated differently, that the included offense must be less than the charged offense in terms of its constituent elements. Most courts require that there be some evidence to support the lesser-included offense, and it is usually required that the punishment be less severe for the lesser-included offense.\\nHowever, a lesser included offense instruction is not appropriate when the only element or elements distinguishing the two offenses is uncontestedly present upon the facts of the case. If the defendant is charged with armed robbery, for example, and the presence of a weapon is uncontested, but defendant pleads insanity, no instruction on a lesser included offense of robbery is necessary. For if the jury accepts the defendants' version, they must acquit. If not, the only alternative is to convict for the offense charged, since the uncontested evidence would contradict a conviction for the lesser offense of robbery.\\nAt the time of the offense, AS 11.15.-200(a) defined the crime of careless use of firearms. In Christie v. State, 580 P.2d 310, 316-20 (Alaska 1978), we analyzed this \\\"complicated tri-partite statute\\\" in the context, of a lesser included offense of assault with a dangerous weapon. Valentine claims that the superior court should have instructed the jury on the second part of the statute, which forbids \\\"[unintentionally] discharging a firearm which is pointed or aimed, intentionally and without malice, at a person.\\\" During the course of arguments over jury instructions, Valentine's counsel noted that his client's testimony at trial amounted to an admission of a violation of the second part of the careless use statute in that Valentine was pointing the gun in the direction of his brother and others in the room during the time immediately before the discharge of the gun. As to whether Valentine was intentionally pointing the gun at his brother at the moment of discharge is not certain from the testimony. Valentine's testimony was that he did not have the gun pointed at his brother at the moment he pulled the trigger but that it was off to the side and his brother had moved into the line of fire. However, there was clearly evidence in the record to support a conviction on the lesser offense of careless use of firearms.\\nThe point of debate is on whether the elements of careless use of firearms are, under the facts of this case, within the elements of manslaughter. A resolution of this problem depends on a construction of the manslaughter statutes. At the time of the conviction, there were three statutes that defined elements of the offense of manslaughter. AS 11.15.040 provided:\\nExcept as provided in \\u00a7 10-30 of this chapter [first and second degree murder provisions], a person who unlawfully kills another is guilty of manslaughter . . .\\nAS 11.15.080 provided:\\nEvery killing of a human being by the culpable negligence of another, when the killing is not murder in the first or second degree, or is not justifiable or excusable, is manslaughter, and is punishable accordingly.\\nAS 11.15.200(b) provided:\\nIf death ensues from the maiming or injuring, the person discharging the firearm may, in the discretion of the prosecuting officer or grand jury, be charged with the crime of manslaughter.\\nIn Keith v. State, 612 P.2d 977, Op. No. 2099, (Alaska 1980), we held that AS 11.15.-040 comprehended within its ambit the misdemeanor-manslaughter rule and that AS 11.15.200(b) is a codification of that rule in relation to the misdemeanor of careless use of firearms. Thus, for Valentine to be convicted, the prosecution need only prove that Valentine committed the misdemeanor of careless use of firearms and that Evenson was killed in the perpetration of that misdemeanor. Since the homicide of Evenson was an uncontested occurrence, under this misdemeanor-manslaughter theory of the crime, Valentine could not be guilty of careless use of firearms without also being guilty of manslaughter. In Christie, we noted the Supreme Court of Arizona's statement:\\n[Instructions on lesser offenses are justified only when there is evidence upon which the jury could convict of a lesser offense . . . In other words, the state of the record must not be such that defendant can only be guilty of the crime charged or not be guilty at all.\\nWe believe the latter circumstance exists in this case, and Valentine was not entitled to an instruction on the lesser included offense of careless use of firearms.\\nAs his second assignment of error, Valentine claims the superior court erred in admitting two black and white autopsy photographs which were more prejudicial than probative. Upon our review of the photographs, we conclude that the superior court did not abuse its discretion in admitting the autopsy photographs. Valentine concedes that the photographs did have probative value to corroborate the medical testimony concerning the cause of death and to illustrate the path of the bullet. While we agree that this evidence was not crucial to the state's case, we do not find it so gruesome and shocking as to be \\\"more harmful than illuminating.\\\" Armstrong v. State, 502 P.2d 440, 449 (Alaska 1972). As the Indiana Supreme Court said of another homicide prosecution:\\nSuch a subject is never a nice one to investigate. Any of the details have a decided tendency to horrify and to appall, but a court cannot arrange for lively music to keep the jury cheerful while the state's case in a murder trial is being presented, and gruesome evidence cannot be suppressed merely because it may strongly tend to agitate the jury's feelings.\\nHawkins v. State, 219 Ind. 116, 37 N.E.2d 79, 85 (1941). Thus, we conclude that the superior court did not abuse its discretion in admitting these photographs.\\nValentine's final specification of error is that prosecutorial misconduct resulted in an improper conviction. The prosecutor, in closing argument, stated in part: These statements were immediately objected to by defense counsel, and the superior court instructed the jury to disregard them. We conclude that the superior court's cautionary instruction cured any possible prejudice that could have resulted from this statement and, that in the context of this case, such statement was at most harmless error under the standard we first articulated in Love v. State, 457 P.2d 622, 631 (Alaska 1969).\\nAfter we get past all the tears and remorse, now, the question is, is he guilty? And, if he is guilty; if he did those things, now is the time to convict him. Not sometime in the future, but today.\\nThe judgment of conviction is Affirmed.\\n. One of the boys, however, testified that Valentine was pointing the gun at them.\\n. Christie v. State, 580 P.2d 310, 317 (Alaska 1978) (footnotes omitted).\\n. Id. at 317, n. 22.\\n. The statute read, in relevant part:\\nA person who intentionally, and without malice, points or aims a firearm at or toward a person, or discharges a firearm . pointed or aimed at a person, or points and discharges a firearm at or toward a person or object without knowing the identity of the object and maims or injures a human being, is guilty of the careless use of firearms, and upon conviction is punishable by a fine of not more than $1,000, or imprisonment for not more than one year, or by both.\\nThis statute was repealed by \\u00a7 21, ch. 166, SLA 1978, effective January 1, 1980. See note 5 infra.\\n. These statutes were repealed by \\u00a7 21, ch. 166r SLA 1978, effective January 1, 1980, as part of the implementation of the Criminal Code revision. The new manslaughter statute, AS 11.-41.120, reads:\\nManslaughter, (a) A person commits the crime of manslaughter if he\\n(1) intentionally, knowingly, or recklessly causes the death of another person under circumstances not amounting to murder in the first or second degree; or\\n(2) intentionally aids another person to commit suicide.\\n(b) Manslaughter is a class A felony.\\n. The prosecution argued both an unlawful act theory of the crime and that Valentine was criminally negligent. Valentine's jury instructions offered the alternative theories of culpable negligence and unlawful act manslaughter. The court instructed the jury, as follows, as to the crime of manslaughter in this case.\\nThe Indictment alleges a violation of Section 11.15.040 Alaska Statutes, the pertinent parts of which read as follows:\\n[a] person who unlawfully kills another is guilty of manslaughter .\\nManslaughter, in Alaska, is the unlawful killing of another, voluntary and involuntary. Voluntary manslaughter is the commission of an act in the sudden heat of passion or anger, without legal justification, resulting in death. Involuntary manslaughter is the inadvertent or unintentional killing while committing an unlawful or culpably negligent act, which proximately is the cause for the death or another.\\nManslaughter embraces a killing without malice and intent, in doing some unlawful act not amounting to a felony or naturally tending to cause death or great bodily injury, or in doing some lawful act in a culpably negligent manner, or in omitting to perform a legal duty. Thus, manslaughter is the unlawful killing of a human being without malice, either expressed or implied, and without intent to kill or inflict the injury causing death, committed accidentally in the commission of some unlawful act not felonious, or in the culpably negligent performance of an act lawful in itself.\\nYou are hereby instructed that it is unlawful to intentionally, and without malice, point or aim a firearm at or toward a person, or to discharge a firearm so pointed or aimed at a person.\\nThe term \\\"culpable negligence\\\" as used in these instructions refers to negligent acts which are aggravated, reckless and gross and which are such a departure from what would be the conduct of an ordinarily prudent or careful man under the same circumstances as to be contrary to a proper regard for human life or, in other words, a disregard for human life or an indifference to consequences. The facts must be such that the fatal consequences of the culpably negligent act could reasonably have been foreseen and it must appear that the death was the natural and probable result of a reckless or grossly negligent act.\\n. Christie v. State, 580 P.2d 310, 317 n. 22 (Alaska 1978), quoting State v. Schroeder, 95 Ariz. 255, 389 P.2d 255, 257 (Ariz.1964), cert. denied, 379 U.S. 939, 85 S.Ct. 347, 13 L.Ed.2d 350 (1964).\\n. In general, Alaska R.Evid. 403 provides:\\nAlthough 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.\\n. In Stevens v. State, 443 P.2d 600, 603 (Alaska 1968), cert. denied, 393 U.S. 1039, 89 S.Ct. 662, 21 L.Ed.2d 586 (1969), we stated:\\n[A] photograph is admissible in evidence in the discretion of the trial judge, as an aid to the court or jury, after it has been shown to be a faithful representation of whatever it purports to depict, provided it is relevant, and provided its evidentiary value is not outweighed by any prejudice it might create.\\n. However, in reviewing these photographs, we think it appropriate to remind trial courts that they should be open to methods of mini- , mizing the prejudicial impact of evidence if that can be done without destroying its probative value. In this case, the most objectionable photographs showed the open and pulled back chest cavity of the young victim and included views of his head and face. Cf. Commonwealth v. Eckhart, 430 Pa. 311, 242 A.2d 271, 273-74 (1968) (introduction of autopsy photos held to be reversible error).\\n. In his brief, appellant argues:\\n[The prosecutor's statement] implies that the State had information that appellant was the type of person who would commit further serious offenses and, as a consequence, it was only a question of time before he would be on trial again, unless the jury effectively removed him from society. The statement by the prosecution is not by itself grounds for reversal, given the cautionary instruction, but it needs to be evaluated in conjunction with the failure of appellant to receive a lesser included offense instruction and the introduction of the inflammatory autopsy photographs.\\n. The exchange at trial was as follows:\\nMR. DOUGLAS: I object to that, Your Hon- or. 1 find that objectionable.\\nTHE COURT: Would you please stand?\\nMR. DOUGLAS: Yes, Your Honor. I don't like to interrupt the closing argument, but, now is the time to convict him, not some time in the future, I do find objectionable.\\nTHE COURT: I would instruct the jury not to regard that remark.\"}"
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+"{\"id\": \"10449516\", \"name\": \"William L. LEVAR, Appellant, v. Mary ELKINS, Appellee\", \"name_abbreviation\": \"Levar v. Elkins\", \"decision_date\": \"1980-01-04\", \"docket_number\": \"No. 3917\", \"first_page\": \"602\", \"last_page\": \"604\", \"citations\": \"604 P.2d 602\", \"volume\": \"604\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T19:32:39.271715+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before CONNOR, BOOCHEVER, BURKE and MATTHEWS, JJ., and DIMOND, Senior Justice.\", \"parties\": \"William L. LEVAR, Appellant, v. Mary ELKINS, Appellee.\", \"head_matter\": \"William L. LEVAR, Appellant, v. Mary ELKINS, Appellee.\\nNo. 3917.\\nSupreme Court of Alaska.\\nJan. 4, 1980.\\nAndrew M. Hemenway and Robert J. Ma-honey, Cole, Hartig, Rhodes, Norman & Ma-honey, Anchorage, for appellant.\\nTimothy M. Lynch, Abbott, Lynch, Far-ney & Rodey, Anchorage, for appellee.\\nBefore CONNOR, BOOCHEVER, BURKE and MATTHEWS, JJ., and DIMOND, Senior Justice.\", \"word_count\": \"948\", \"char_count\": \"5725\", \"text\": \"OPINION\\nCONNOR, Justice.\\nMary Elkins lived with William Levar in a nonmarital union for more than 20 years. After the relationship ended, Elkins asserted rights to the property which had been acquired during the relationship. To that end she brought suit alleging causes of action in quantum meruit, contract, and equitable division of property.\\nThis case was tried by jury. During the course of trial, Elkins abandoned the theories of quantum meruit and implied partnership as a basis of recovery. Additionally, the court ruled that the question of equitable division of property could not be submitted to the jury. Thereafter, Elkins relied only on a contract theory of recovery. The case was submitted to the jury under instructions directed solely to the question of whether there was a contract between the parties, either express or implied in fact. A verdict was returned for Elkins in the sum of $15,000.\\nOn appeal Levar asserts error in the denial of his motion for a directed verdict at the close of plaintiff's case, and the denial of a motion for judgment notwithstanding the verdict or, in the alternative, a new trial. Both of these issues go to the sufficiency of the evidence. Accordingly, we must determine whether the evidence, viewed in the light most favorable to El- kins, the non-moving party, is such that reasonable persons could not differ in their judgment. Our task is not to weigh the evidence or judge the credibility of the witnesses. Our task is merely to determine whether there is room for diversity of opinion among reasonable people. If so, the question is one for the jury. Whittier v. Whittier Fuel & Marine Corp., 577 P.2d 216 (Alaska 1978). Our review of the record convinces us that the court ruled correctly on both motions.\\nThe case was submitted to the jury on instructions proposed by Levar's counsel. There was conflicting evidence, from which a jury could reasonably find that there was mutual assent and consideration to support a contractual obligation, and that the presumption that the property given and services rendered by Elkins were gratuitous had been overcome. Little would be gained by reviewing that evidence in this opinion. As to these points, there was no error.\\nLevar asserts that the trial court erred in taking judicial notice of a mortality table. Levar objected to the use of the mortality table on the ground that he was not afforded an opportunity to present information relevant to the propriety of taking judicial notice and that the table was inapplicable to Elkins, who suffered from various physical ailments. As to the first point, the court recognized that Levar should have the opportunity to present relevant information on the propriety of taking notice. The record shows, however, that Levar's counsel did not request a delay in the trial to obtain such information.\\nOn Levar's second point, the court instructed the jury concerning the mortality tables, and specifically told the jury to consider evidence pertaining to Elkins' health. In our view, the court acted properly with respect to the mortality table. The weight of authority is that lack of normal health in the person as to whom life expectancy is determined does not render the tables inadmissible, it merely goes to the weight of the evidence. Anno., 116 ALR 416. There was no error.\\nWe find no 'merit in Levar's claim that the court abused its discretion in finding that Elkins was the prevailing party and, thus, entitled to the award of an attorney's fee under Civil Rule 82.\\nAFFIRMED.\\nRABINOWITZ, C. J., not participating.\\n. Elkins testified that in return for services as a housewife and caretaker for Levar's children, and for money contributed over the years, Le-var promised to provide for her for the rest of her life.\\n. Because this case was decided on a contractual theory of recovery, we need not consider the questions arising under the much publicized case of Marvin v. Marvin, 18 Cal.3d 660, 134 Cal.Rptr. 815, 557 P.2d 106 (Cal.1976). An illuminating and comprehensive discussion of this subject can be found in C. Bruch, \\\"Property Rights of De Facto Spouses Including Thoughts on the Value of Homemakers' Services,\\\" 10 Family Law Quarterly 101 (1976).\\n. Civil Rule 43(a)(4)[a] provides:\\n\\\"The judge shall afford each party reasonable opportunity to present to him information relevant to the propriety of taking judicial notice of a matter or to the tenor of the matter to be noticed.\\\"\\nRule 43 was rescinded effective August 1, 1979. (Order No. 366)\\n. None of the cases cited by Levar convince us otherwise. These are Morrison v. State, 516 P.2d 402 (Alaska 1973); Morrow v. Mendleson, 15 Cal.App.2d 15, 58 P.2d 1302 (1936); Fortner v. Koch, 272 Mich. 273, 261 N.W. 762 (1935); and Butler v. Butler, 180 Minn. 134, 230 N.W. 575 (1930).\\nThe latter three cases concerned so-called \\\"select\\\" mortality tables. These are tables \\\"based upon the actual lives of persons in normal health,\\\" (Butler 230 N.W. at 579; Fortner 261 N.W. at 764) or \\\"average good health\\\" (Morrow 58 P.2d at 1305). In contrast, the HEW table in the instant case is based on the entire population and, therefore, does not skew the life expectancy distribution in favor of the appellee. Morrison simply held that the trial court should not depart from a mortality table without some evidence to justify such a departure. (at 406).\"}"
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+"{\"id\": \"10451646\", \"name\": \"John D. HAYES, Appellant, v. STATE of Alaska, Appellee\", \"name_abbreviation\": \"Hayes v. State\", \"decision_date\": \"1978-07-14\", \"docket_number\": \"No. 2814\", \"first_page\": \"221\", \"last_page\": \"223\", \"citations\": \"581 P.2d 221\", \"volume\": \"581\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T22:07:50.826335+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before BOOCHEVER, C. J., and RABI-NOWITZ, CONNOR, BURKE and MATTHEWS, JJ.\", \"parties\": \"John D. HAYES, Appellant, v. STATE of Alaska, Appellee.\", \"head_matter\": \"John D. HAYES, Appellant, v. STATE of Alaska, Appellee.\\nNo. 2814.\\nSupreme Court of Alaska.\\nJuly 14, 1978.\\nEdgar Paul Boyko, Michael W. Sewright, Edgar Paul Boyko & Associates, Anchorage, for appellant.\\nAnne Carpeneti, Asst. Atty. Gen., Daniel W. Hickey, Deputy Atty. Gen. and Avrum M. Gross, Atty. Gen., Juneau, for appellee.\", \"word_count\": \"918\", \"char_count\": \"5475\", \"text\": \"OPINION\\nBefore BOOCHEVER, C. J., and RABI-NOWITZ, CONNOR, BURKE and MATTHEWS, JJ.\\nMATTHEWS, Justice.\\nJohn D. Hayes was indicted on one count of concealing three stolen radios belonging to Alyeska Pipeline Service Company in violation of AS 11.20.350. He was convicted after a jury trial, sentenced to imprisonment for 18 months and fined $1,000.\\nHayes' first point on appeal is that the trial court should have granted him a judgment of acquittal because the State relied exclusively on hearsay testimony to prove that the concealed radios were owned by Alyeska. This argument must fail for two reasons. First, much of the evidence of ownership was not inadmissible hearsay. Second, no hearsay objection was made. Thus, that evidence of ownership which was hearsay was competent.\\nHayes also contends that one may not be convicted of concealing property which he has stolen. He argues that as of the close of the State's case the only evidence tending to prove that the property was stolen proved that he stole it. He advances this as an alternative reason why his motion for judgment of acquittal ought to have been granted. AS 11.20.350(a) provides in relevant part:\\nA person who . . . conceals money, goods, bank notes, or other thing which may be the subject of larceny and which has been taken, embezzled; or stolen from another person, knowing it to have been taken, embezzled, or stolen, is upon conviction punishable by a fine of not more than $1,000 and by imprisonment for not less than one year nor more than three years. .\\nIt is true that some courts construing similar statutes have imposed a requirement that someone other than the person accused of concealing the property stole it. There is other authority which holds that in a concealment case it is irrelevant whether or not the defendant was the thief. In Eliason v. State, 511 P.2d 1066, 1072 n. 22 (Alaska 1973), this issue was raised on appeal, but not directly decided because no objection was made at trial. We indicated, however, that we would be disinclined to require proof that the concealer of property did not steal it. In accordance with Elia-son, we now hold that AS 11.20.350(a), in cases of concealment, does not require that someone other than the defendant has stolen the property in question. The statute does not express such a requirement, and no reasons commend themselves to us why such a requirement should be taken as implied.\\nIn this case the trial court erroneously instructed the jury that it could find Hayes guilty of illegal concealment as to each of the three radios in question only if it determined that someone else had actually stolen each radio. Hayes contends that there was insufficient evidence to support a conviction based on this instruction because, at least as to two of the radios, \\\"the only evidence was that if indeed anyone had stolen the two radios, appellant had stolen them. . . . \\\" Assuming that Hayes' characterization of the evidence on this point is correct, we fail to see how it is relevant to the validity of his conviction. We will only reverse where the substantial rights of a party have been affected. Insufficient proof of a point which is not an element of the offense charged does not affect substantial rights.\\nThree verdict forms were submitted to the jury. Hayes claims that because he was charged with but one count of concealing stolen property only one verdict form should have been submitted which required the State to prove him guilty of having illegally concealed all three radios. However, since the jury found Hayes guilty on each of the three individual forms, we find that any error was harmless.\\nHayes' final contention is that his sentence of 18 months in jail and a $1,000 fine is excessive. Although this was Hayes' first offense, we are unable to say after consideration of the factors outlined in State v. Chaney, 477 P.2d 441, 444 (Alaska 1970), that the court was clearly mistaken in imposing the sentence it did.\\nAFFIRMED.\\n. E.g., inventories listing by serial number two of the radios, identified as Alyeska property, were introduced in evidence. They plainly fall within the business records exception to the hearsay rule. Civil Rule 44(a)(1).\\n. Reese v. Geiermann, 574 P.2d 445, 446 (Alaska 1978); City of Anchorage v. Nesbett, 530 P.2d 1324, 1336 (Alaska 1975). We reject Hayes' suggestion that the admission of hearsay evidence constitutes \\\"plain error\\\" which we should consider even though not objected to below. It is not error at all for a court to receive hearsay evidence without objection. Diaz v. United States, 223 U.S. 442, 450-52, 32 S.Ct. 250, 251-52, 56 L.Ed. 500, 503-04 (1912).\\n. E.g., People v. Daghita, 301 N.Y. 223, 93 N.E.2d 649 (1950).\\n. E.g., State v. Carlton, 233 Or. 296, 378 P.2d 557 (1963); State v. Carden, 50 Wash.2d 15, 308 P.2d 675, 676 (1957); Walls v. State, 491 P.2d 320, 322 (Okl. Cr. 1971).\\n. Alaska Criminal Rule 47(a) states:\\nHarmless Error. Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.\\n. Love v. State, 457 P.2d 622, 631 (Alaska 1969).\\n. McClain v. State, 519 F.2d 811, 814 (Alaska 1974).\"}"
\ No newline at end of file
diff --git a/alaska/10454889.json b/alaska/10454889.json
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index 0000000000000000000000000000000000000000..37fbd645305531185138fea821df0615ee144ca3
--- /dev/null
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+"{\"id\": \"10454889\", \"name\": \"Nicola J. FERNANDES, Appellant, v. Raymond F. FERNANDES, Appellee\", \"name_abbreviation\": \"Fernandes v. Fernandes\", \"decision_date\": \"1978-09-29\", \"docket_number\": \"No. 3848\", \"first_page\": \"551\", \"last_page\": \"553\", \"citations\": \"584 P.2d 551\", \"volume\": \"584\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T20:35:25.580797+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before BOOCHEVER, Chief Justice, and RABINO WITZ, CONNOR, BURKE and MATTHEWS, Justices.\", \"parties\": \"Nicola J. FERNANDES, Appellant, v. Raymond F. FERNANDES, Appellee.\", \"head_matter\": \"Nicola J. FERNANDES, Appellant, v. Raymond F. FERNANDES, Appellee.\\nNo. 3848.\\nSupreme Court of Alaska.\\nSept. 29, 1978.\\nRoger E. Clark, Alaska Legal Services Corp., Fairbanks, for appellant.\\nAppellee waived appearance.\\nBefore BOOCHEVER, Chief Justice, and RABINO WITZ, CONNOR, BURKE and MATTHEWS, Justices.\", \"word_count\": \"810\", \"char_count\": \"4965\", \"text\": \"OPINION\\nPER CURIAM.\\nNicola and Raymond Fernandes were divorced in 1975. Under the terms of the decree of divorce, Nicola was awarded custody of their then-unborn child. Two years later Raymond filed a motion for modification of the divorce decree, seeking custody of the parties' son, Jeremy G. Fernandes. A guardian ad litem was appointed to represent Jeremy.\\nAfter a two day hearing, the superior court ordered that Raymond be given custody of Jeremy.\\nThe guardian ad litem submitted a declaration of fees to the court. The claim was accepted by the court, and disbursement was made to the guardian in the amount of $1,270.42. Two months later the court, sua sponte, issued an order holding Nicola and Raymond jointly and severally responsible for repayment of the guardian ad litem's fees. Appellant Nicola Fernandes appeals from that order.\\nRule 15.1(d), Alaska Administrative Rules, requires the assigned judge to make a determination of the parties' ability to pay the costs of the guardian ad litem before assessing such costs against them. The court's order here was sua sponte. The parties were not notified that the court was contemplating an order for repayment of the guardian ad litem's fees, nor was a hearing held on the parties' ability to pay. Therefore, appellant Nicola Fernandes, who was represented throughout the custody proceeding by Alaska Legal Services Corporation, was precluded from showing that assessment of the guardian ad litem fees against her would work an \\\"undue financial hardship\\\" on her. Administrative Rule 15.-1(d). Thus, we must remand the case to the superior court for the appropriate determination.\\nWe note another oversight on the part of the superior court. On remand, the court is also to issue an order establishing the liability for the guardian ad litem's fees in accordance with AS 09.65.130(b), which provides:\\nIf 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 attorney general is responsible for enforcing collections owed the court, and repayment shall be made directly to the court under the provisions of rules governing the administration of the courts. 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 parties, before a division of property is made.\\nIf the trial court finds that Nicola is indigent, her portion of the costs must be borne by the state. If the trial court further finds that she is receiving legal services for the indigent, the state is precluded by AS 09.65.130(b) from seeking repayment from her.\\nREMANDED for proceedings in accordance with this opinion.\\n. The custody determination is not challenged in this appeal.\\n. Administrative Rule 15.1(d) provides:\\nIf the assigned judge determines that the party or parties having legal responsibility for the support of a child for whom an attorney or guardian ad litem has been appointed are able, without undue financial hardship, to pay the costs of such services, the judge shall:\\n(1) Order that all or an equitable portion of the costs be paid by such party or parties directly to the person providing the services; or\\n(2) Assess as costs to such party or parties all or an equitable portion of the cost to the state of providing such services.\\n. We suggest that the superior court be guided in making its determination by Rule 15(c)(1), Alaska Rules of Children's Procedure, which provides:\\nExamination as to Assets and Liabilities. For the purpose of determining whether a party is financially unable to employ counsel the court shall examine him under oath and on the record with respect to his real and personal assets and liabilities, including cash, accounts receivable, accounts payable, income from salary, wages and other sources, ability to convert assets into cash or credit which could be utilized, directly or indirectly, for the payment of counsel fees and as to any other relevant aspect of his economic status.\\n. This subsection was erroneously omitted from the 1977 supplement to Chapter Nine of the Alaska Statutes.\"}"
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diff --git a/alaska/10457494.json b/alaska/10457494.json
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+"{\"id\": \"10457494\", \"name\": \"Thomas Royal JOHNSON, Appellant, v. STATE of Alaska, Appellee\", \"name_abbreviation\": \"Johnson v. State\", \"decision_date\": \"1978-07-07\", \"docket_number\": \"No. 3424\", \"first_page\": \"700\", \"last_page\": \"703\", \"citations\": \"580 P.2d 700\", \"volume\": \"580\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T23:16:23.775817+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before BOOCHEVER, C. J, and RABI-NOWITZ, CONNOR,. BURKE and MATTHEWS, JJ.\", \"parties\": \"Thomas Royal JOHNSON, Appellant, v. STATE of Alaska, Appellee.\", \"head_matter\": \"Thomas Royal JOHNSON, Appellant, v. STATE of Alaska, Appellee.\\nNo. 3424.\\nSupreme Court of Alaska.\\nJuly 7, 1978.\\nStephen R. Cline, Asst. Public Defender, Ketchikan, Brian C. Shortell, Public Defender, Anchorage, for appellant.\\nJames L. Hanley, Asst. Dist. Atty., Larry R. Weeks, Dist. Atty., Avrum M. Gross, Atty. Gen., Juneau, for appellee.\\nBefore BOOCHEVER, C. J, and RABI-NOWITZ, CONNOR,. BURKE and MATTHEWS, JJ.\", \"word_count\": \"1677\", \"char_count\": \"10009\", \"text\": \"OPINION\\nBOOCHEVER, Chief Justice.\\nAppellant Thomas Royal Johnson was convicted by jury on January 24, 1977, of attempted robbery in violation of AS 11.15.-240 and AS 11.05.020 and of assault with a dangerous weapon in violation of AS 11.-15.220. He was sentenced to twelve years imprisonment with parole eligibility after one-third of this time.\\nTwo issues are presented on appeal. The first is whether the out-of-court identifications of Johnson should have been suppressed. The second pertains to the length of sentence.\\nOn June 18, 1976, Michael Wiley, the 14-year-old son of the owners of the Ben Franklin Store in Juneau, had his attention attracted to an unusual customer while working as a clerk at the store. This customer was purchasing a full-face ski mask in the middle of the summer. Wiley talked with this person for approximately five minutes and remembered that the fellow argued with him about the price of the ski mask. During this discussion, Wiley was approximately three feet from the customer in a well-lighted store. One of the reasons that Wiley observed this customer carefully was that he thought he was going to steal the ski mask.\\nA few minutes after the sale of the ski mask, Wiley went across the street to the Harry Race Drug Store in order to meet Tim McCorkle with whom he regularly had lunch. Upon arriving at the drug store, McCorkle, son of the owner of Harry Race Drug, told Wiley about an attempted robbery that he had just witnessed. When McCorkle described the person that had attempted to rob the drug store as having long hair, a beard, and a tan army-type coat, Wiley realized that this was the same individual who had just purchased the ski mask in the Ben Franklin Store across the street. At approximately this time, Lt. James Hasty of the Juneau Police Department arrived at the drug store and talked with the witnesses.\\nOne other police officer, Officer McCracken, had arrived at the store just prior to Lt. Hasty. After receiving a description of the man from John Raker, the pharmacist who was assaulted, McCracken left the store because he believed that on his way to the store he had seen the suspect. Lt. Hasty then asked Wiley to ride about the streets in his patrol vehicle in an effort to spot the suspect. During the approximately seven to eight minute ride in the patrol vehicle, Lt. Hasty received a radio transmission asking if the suspect wore blue bell-bottom pants to which Wiley replied in the affirmative. A short time later, a radio message was received from Officer McCracken saying that he had the person he believed to be the suspect in view in the vicinity of the Juneau Motor Company. Lt. Hasty immediately went to that area, where Wiley positively identified the person as the one who had been in the Ben Franklin Store that morning purchasing the ski mask. Wiley was certain it was the same person since he still had the yellow, white and black ski mask sticking from his pocket. The person who Wiley identified was arrested and found to be Thomas Royal Johnson, the defendant.\\nLt. Hasty then went to the Juneau Police Department where he photographed Johnson and prepared a photo lineup containing twenty-five photographs. All persons in the photo lineup had medium to long hair and facial hair (at least a moustache) and at least nine of the persons in the photo lineup had beards.\\nWithin approximately one-half hour after he was assaulted, John Raker looked at the twenty-five photographs and, within 30 seconds, identified the defendant as the person who had assaulted him. Raker did not observe the defendant at the police station prior to identifying him in the photo lineup. Michael Wiley testified that Raker was present when he was examining the photographs but that Raker was writing his statement at the time and did not see the photographs that Wiley identified. Raker did not recall being present during Wiley's identification.\\nAnother identification procedure occurred on January 4, 1977, when a lineup was arranged by defense counsel at the Juneau Police Department. At this lineup, Raker and Wiley positively identified Thomas Royal Johnson. In addition to these identification procedures, both Raker and Wiley identified the defendant in the courtroom at the time of trial.\\nThree separate identifications are complained of: (1) Wiley's initial identification of Johnson; (2) Wiley's identification of Johnson from a photo lineup within an hour of the arrest; and (3) Raker's identification of Johnson from the photo lineup.\\nOur review of the record convinces us that each of the three questioned identifications was valid and reliable. First, as to the initial identification of Johnson by Michael Wiley, we note that the police wished to identify their prime suspect quickly and had good reason to believe that the man Wiley had seen buying a ski mask was that person. While Wiley's identification of Johnson from a photo lineup may have been influenced by the fact that he had seen Johnson being placed under arrest less than an hour before, any possible taint is not sufficient to suppress the identification in light of the \\\"totality of the circumstances.\\\" Finally, the evidence supports the conclusion that Raker's identification of Johnson from the photo lineup was not contaminated by his presence in the room while Michael was making his identification.\\nJohnson's second argument on appeal is that the sentence'is excessive and the superior court erred in not sending him to a drug rehabilitation program rather than to prison. We have recently rejected the notion that a drug addict must be placed in a drug rehabilitation program rather than be incarcerated. Parks v. State, 571 P.2d 1003, 1005 (Alaska 1977); Fox v. State, 569 P.2d 1335, 1337-38 (Alaska 1977).\\nThe principal duty of a sentencing judge is to determine for the case at hand the priority and interrelationships of the sentencing objectives. Nicholas v. State, 477 P.2d 447, 448 (Alaska 1970). From our review of the record we conclude that the superior court was not clearly mistaken in its sentence.\\n. AS 11.15.240 provides:\\nRobbery. A person who, by force or violence, or by putting in fear, steals and takes anything of value from the person of another is guilty of robbery, and is punishable by imprisonment in the penitentiary for not more than 15 years nor less than one year.\\n. AS 11.05.020 provides:\\nPunishment for attempt. A person who attempts to commit a crime, and in the attempt does any act toward the commission of the crime, but fails, or is prevented or intercepted in the perpetration of the crime, when no other provision is made by 'aw for the punishment of the attempt, upon conviction, is punishable as follows.\\n(1) If the crime attempted is punishable by imprisonment in the penitentiary or state jail, the punishment for the attempt is by the same imprisonment, as the case may be, for a term not more than half the longest period prescribed as a punishment for the crime. If the period prescribed as a punishment for the crime is an indeterminate or life term, the punishment for the attempt shall be fixed by the court at a term not more than 10 years. (2) If the crime attempted is punishable by a fine, the punishment for the attempt shall be by a fine of not more than half the amount of the largest fine prescribed as a punishment for the crime.\\n. At the time of the offense, AS 11.15.220 provided:\\nAssault with a dangerous weapon. A person armed with a dangerous weapon, who assaults another with the weapon, is punishable by imprisonment in the penitentiary for not more than 10 years nor less than six months, or by imprisonment in jail for not more than one year nor less than one month, or by a fine of not more than $1,000 nor less than $100.\\n. Sentence was imposed only on the charge of assault with a dangerous weapon, the court considering a range of punishment between one and forty years.\\n. Johnson also challenges an identification by McCorkle from the photo lineup as a fruit of Wiley's initial identification. In light of our disposition of the other specified identifications, we need not address this contention.\\n. Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 34 L.Ed.2d 401, 411 (1972); Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 18 L.Ed.2d 1199, 1206 (1967); Gould v. State, 579 P.2d 535 (Alaska 1978); Noble v. State, 552 P.2d 142, 146 (Alaska 1976).\\n. The court did recommend a drug treatment house \\\"at an appropriate time\\\" during the sentence.\\n. See Cleary v. State, 548 P.2d 952, 954 (Alaska 1976). At the sentencing hearing, the court sentenced the defendant pursuant to the enhanced sentencing provision in AS 12.55.050, which allowed the defendant to be sentenced up to a maximum sentence of forty years on the assault with a dangerous weapon charge and thirty years on the attempted robbery charge because he had previous felony convictions. In addition to the defendant's prior felony convictions, the court had before it his long history of juvenile institutional placement, several psychiatric reports indicating that the defendant was basically an anti-social individual who had a record of assaultive anti-social acts during his institutional placements and the fact that the defendant had been released on parole from the Washington State penitentiary less than a week before committing the offenses in Juneau.\\nAS 12.55.050(2) states:\\nIf 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.\"}"
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+"{\"id\": \"10459713\", \"name\": \"CITY OF KENAI, Appellant, v. George FILLER, A.I.A., Appellee\", \"name_abbreviation\": \"City of Kenai v. Filler\", \"decision_date\": \"1977-07-22\", \"docket_number\": \"No. 2685\", \"first_page\": \"670\", \"last_page\": \"677\", \"citations\": \"566 P.2d 670\", \"volume\": \"566\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T21:29:08.779797+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before BOOCHEVER, C. J., and RABI-NOWITZ, CONNOR, ERWIN and BURKE, JJ.\", \"parties\": \"CITY OF KENAI, Appellant, v. George FILLER, A.I.A., Appellee.\", \"head_matter\": \"CITY OF KENAI, Appellant, v. George FILLER, A.I.A., Appellee.\\nNo. 2685.\\nSupreme Court of Alaska.\\nJuly 22, 1977.\\nKarl L. Walter, Jr., Groh, Benkert & Walter, Anchorage, for appellant.\\nRobert B. Baker, Robertson, Monagle, Eastaugh & Bradley, Anchorage, for appel-lee.\\nBefore BOOCHEVER, C. J., and RABI-NOWITZ, CONNOR, ERWIN and BURKE, JJ.\", \"word_count\": \"3536\", \"char_count\": \"21203\", \"text\": \"OPINION\\nBURKE, Justice.\\nThis dispute arises out of a contract for architectural services entered into between the appellant City of Kenai and appellee George Filler. Both parties agree that a contract was entered into relating to the development of a civic center. The City's first major argument on appeal is that the trial court erred in finding that the parties amended the original contract to increase the proposed cost and scope of the Kenai Civic Center and thus increase the size of Filler's architectural fee under the payment terms of the original contract. Its second contention is that the trial court erroneously found that the evidence showed that the City had ratified the amended Filler contract and was obligated to pay Filler for the authorized increase in project scope.\\nOn June 2,1971, by Resolution No. 71-25, the Kenai City Council gave their City Manager, Edwin H. Glotfelty, authority to hire Filler as architect for the design of a Kenai Civic Center. Under this resolution, no specific limit was placed on the size of the proposed Civic Center Project.\\nOn June 16, 1971, the City entered into a contract with Filler to provide architectural services relating to the development of this civic center. This agreement was reduced to written form by American Institute of Architects Document B \\u2014 131, \\\"Standard Form of Agreement between Owner and Architect.\\\" This agreement, signed by City Manager Edwin H. Glotfelty and Filler, provided that the total project cost would not exceed $1.6 million and that the architect's fee for the services described in paragraph 1.1 of the contract would be computed as 8% of the \\\"construction costs.\\\" Paragraph 3.1.2 of the contract defined construction cost for a project which is not constructed as the \\\"lowest bona fide bid received for any and all of such work.\\\" Under the contract provisions, payment of 80% of the architect's fee for the services specified in paragraph 1.1 was due if the project entered the bidding or negotiation phase.\\nParagraph 1.2 provided that certain additional services, if authorized by the City, would be performed at additional cost. Such additional services included \\\"providing special analysis of the owner's needs and programming the requirements of the project\\\"; providing financial feasibility or other special studies\\\"; and hiring \\\"special consultants.\\\"\\nPrior to entering into the contract, Filler did not review the City Charter, the City ordinances, except for building regulations, or resolutions authorizing any contracts for architectural services. He appears to have relied solely on the City Manager in Kenai.\\nIn early March of 1972, Filler submitted a schematic design for the Kenai Civic Center to the Kenai City Council. On March 23, 1972, Filler appeared at a public hearing in Kenai. At that meeting, the public indicated dissatisfaction with the limited scope of the planned project. The City Manager and others then mentioned the possibility of obtaining additional money to permit the City to increase the scope of the project to a $2.4 million civic center. Filler apparently was asked to develop two plans. The first plan was within the original project cost of $1.6 million. The second and more elaborate plan was based on a project cost of $2.4 million.\\nOn May 3, 1972, Filler appeared before the Kenai City Council and presented two schematic drawings and two cost estimates. Scheme I was for a civic center project costing approximately $1.6 million; Scheme II provided for a more extensive civic center project costing approximately $2.4 million. On the evening of May 4,1972, Filler appeared before a public hearing in Kenai to present both Scheme I and Scheme II to the City Council and the public. After these meetings, Filler testified that he was left with the impression that the City Council had approved the larger $2.4 million scheme. Consequently, Filler requested a confirmation from the City Manager in the form of a letter indicating that the City wished to go ahead with the larger project. This request was made because of prior problems with the City concerning the payments for increased cost on a previous project. Glotfelty sent Filler the following letter dated June 29, 1972,\\nYou are requested to proceed with the drawings of May, 1972 of the Kenai Civic Center, scheme number two, sheet numbers one and two.\\nIn your Standard Architect Agreement dated June 16, 1971, the City of Kenai specified that the total projected costs was not to exceed $1,600,000.00. We would like this amended to a total projected cost not to exceed $2,400,000.00.\\nCity Manager Glotfelty testified that before he wrote the letter the City Council had approved the amendment at either a regular or special meeting of the council. Thus, he apparently felt he had the authority to amend the original contract. However, Glotfelty also testified that he intended after the letter of June 29th to have a written amendment added to the original contract.\\nAfter receiving the June 29th letter, Filler commenced his design and development drawings for the $2.4 million project. However, it should be noted that Filler admitted that the language \\\"we would like this amended\\\" was not a specific contract amendment but that he interpreted the entire letter as an amendment to the contract.\\nOn September 6, 1972, Filler appeared before the Kenai City Council and presented to them design and development drawings for a $2.4 million project. According to Glotfelty's testimony, the Council instructed him to proceed with the completion of the Scheme II design drawings and specifications and to put the project out to bid.\\nOn October 4, 1972, the Council approved partial payment to Filler based upon a billing for a $2.1 million project, Filler's then current estimate of the total Scheme II project cost. Filler objected by telephone to the City Manager that this payment was insufficient; the City Manager indicated, according to Filler's testimony, that Filler would receive full payment. The City Manager testified that he made partial payment to Filler only because he wanted to speed Filler's process of producing final plans and specifications for Scheme II even though the partial payment is based on a computation of 8% of the $1.6 million project cost of Scheme I.\\nThe project was advertised for bids during the period from the end of October through early November in numerous newspapers of general circulation. All advertisements for bids indicated a project of approximately 37,000 square feet as outlined in Scheme II, the $2.4 million scheme. Five copies of the final plans and specifications (Scheme II) were sent to the City on November 5,1972. These plans and specifications were apparently used by the City to obtain bids for construction of the Civic Center. In November, Filler also presented the City with the architect's final estimate showing an estimated total construction cost of $2,372,000.\\nOn December 11, 1972, bids for the Civic Center project were opened. The low bid for the project without the alternative, optional features was $1,876,000. The lowest bid with all eleven alternatives was $2,417,-000. At the December 20, 1972 Kenai City Council meeting, the City Manager stated to the City Council that the low bid with the first four alternatives was $2,108,000. The Council voted to attempt to proceed with construction and to ask the two low bidders to keep their bids open for a period of sixty (60) days. At the same meeting, the Council apparently approved payment of a partial fee to Filler based upon an estimated construction cost of $2,100,000. It should be noted that the fee payment is listed in the Council'minutes as \\\"Notification of Payment,\\\" and no formal Council action with respect to it is shown.\\nAs of December 11, 1972, the City in its official financial records computed payments to Filler for the Civic Center on the basis of Scheme II cost estimates. Anticipated funding for the Kenai Civic Center did not materialize. Accordingly, the Council passed a resolution on April 18, 1973 rejecting the low bids submitted on the Civic Center.\\nThe minutes of the City Council during all of 1972 and 1973 are silent as to any formal agenda item, approval, or-action by the . Council as to any amendment or changes in the original architectural contract.\\nFiller, on May 6, 1974, filed a complaint in the superior court alleging,that the City of Kenai had failed to pay him $36,505.15, the balance of his architectural fees due him under the allegedly modified contract. Filler contended that his fee should have been computed on the basis of the Scheme II costs of $2.4 million. The City of Kenai countered that no contract modification took place and hence any payment must be based on the Scheme I cost of $1.6 million. The City also counter claimed for alleged fee overpayments made to Filler,based on $2.4 million costs.\\nThe lower court held that the City Council had. approved amendment of the contract and alternatively held -that the Council had ratified the modified contract.\\nThis appeal followed.\\nThe City urges several claims of error on this appeal. It urges that the lower court erred in finding a contract amendment and erred in finding ratification of the contract amendment without specific findings of fact. Given that our affirmance of the lower court on the ratification issue is dispositive of this controversy we find it unnecessary to reach the City's contention that it did not specifically approve the contract amendment according to its City Charter and Ordinances.\\nThe City contends that the trial court failed to enter findings of fact and conclusions of law in order to allow the Supreme Court a basis for review on the issue of ratification. Such a position however, fails upon a reading of the trial court's written decision. In his decision, Judge Buckalew states after enumerating his findings of fact and conclusions of law:\\nIn summary, the Court finds that the City Manager did have express authority and did amend plaintiff's contract. This court further finds that the facts would also warrant a recovery for the plaintiff under a theory of ratification.\\nThe trial court's statement thus appears to incorporate the same findings of fact and conclusions of law utilized for finding of a contract amendment and thus meets the requirements of Moores v. Alaska Metal Buildings, Inc., 448 P.2d 581, 582-83 (Alaska 1968) where this court stated:\\n[a] trial judge [has] the duty under Civil Rule 52(a) to make sufficiently detailed and explicit findings of fact in order to afford this court a clear understanding of the basis for his decision.\\nAn unenumerated summary of Judge Buckalew's findings shows that:\\n\\u2014 Filler was requested to prepare two design schemes.\\n\\u2014 The City through its agent requested Filler to prepare design drawings based on the larger of two Civic Center schemes, i. e., the $2.4 million design.\\n\\u2014 Filler presented these design drawings before the Kenai City Council on September 6, 1972, with the Council on October 4, 1972, approving partial payment to Filler based upon a $2.1 million figure.\\n\\u2014 The City took advantage of the large scope design in its bid advertisements which were published in the latter part of October, 1972, which indicated a project based on the $2.4 million figure.\\n\\u2014 The City Council after bids were opened was advised by the City Manager that total project cost was between $2.35 million and $2.5 million. With this knowledge the Council voted to proceed with construction.\\nWe conclude that the lower court's findings of fact and conclusion of the law sufficiently detailed and explicit as to meet the Moores, supra, standard and therefore find that they meet the requirements of Civil Rule 52(a).\\nThe City also urges that any ratification of an amended contract must be by acts as formal as those necessary for a valid contract in the first instance. However, such a result would place a premium on technical requirement and ignore actual circumstances. McQuillan states:\\nThe ratification of a contract by the municipal corporation may be made by the affirmative action of the proper officials or by any action or non-actibn which in the circumstances amounts to an approval of the contract. To constitute due ratification of an executory contract the general rule is that there must be formal corporate action. But it does not necessarily follow that lack of an affirmative act will exempt the city from liability where the contract has been executed by the other party thereto. The city may be bound by inaction.\\nIn the case at bar, Filler fully performed his part of the contract in preparing a design plan based on specification changes ordered by the City Manager. Even though the City Council was aware that it was working with a design plan which was of increased scope over the plan initially contracted for, it made no effort to indicate that it disapproved of the City Manager's order to Filler to increase the size of the project.\\nThe City also ventures the argument that one dealing with an agent of a municipal corporation does so at his own risk and is required to be aware of any limitations on the agent's authority. It contends that this court adopted this proposition in King v. Alaska State Housing Authority, 512 P.2d 887 (Alaska 1973). We recognize that then Chief Justice Rabinowitz stated that\\n. it is well established that all persons dealing with a public corporation are deemed to know its limitations.\\nHowever, this statement must be read in the context of the cases cited in support of the proposition offered. The supporting authorities are based on fact patterns where the alleged contract was illegal ab initio due to a lack of power on the part of the public agency to enter into the contract.\\nIn King, supra the court relied on Dyson et al. v. Dixon et al., 219 Ga. 427, 134 S.E.2d 1, 2 (Ga.1963) wherein the appellants argued they had a right to certain property sold by a public redevelopment corporation on the basis that the development corporation's agent had promised them a preference. The Georgia court held that since the redevelopment corporation itself could grant no preference neither could its agent.\\nThe second authority relied on by King, supra, State ex rel. Bain v. Clallam County Bd. of Com'rs, 77 Wash.2d 542, 463 P.2d 617 (1970), concerned a union which urged the court to grant a writ of mandamus to force the County Board to honor an oral collective bargaining agreement for a pay increase. Such an increase would have required a transfer between budget accounts. In upholding the right of the Board not to perform the court stated:\\nThe commissioners gave as one reason for declining to perform the tentative oral agreement that their official counsel, the Prosecuting Attorney of Clallam County, had advised them that it would be illegal to grant the pay increase because no emergency existed warranting a departure from the 1968 budget. We are not concerned with and do not pass on whether this court would ultimately sustain the prosecuting attorney's position, but rather whether the commissioners had a legal right to heed his advice.\\nThe record and the findings support the Commissioners on this point.\\nThe third authority cited by the King court, McQuillan on Municipal Corporations, \\u00a7 29.04 at 220-23, qualifies his assertion at \\u00a7 29.104 at 506 by stating that \\\"contracts which are within the scope of the corporate powers but not authorized by proper action of the municipal corporation may be ratified by the proper corporate authorities.\\\" The City urges, citing McQuillan at 527, that \\\"ratification can be made only by an observance of the same formalities and provisions to be complied with in the making of a valid contract.\\\" However, this authority cites Los Angeles Dredging Co. v. City of Long Beach, 210 Cal. 348, 291 P. 839 (1930), a case which also requires only prior legal authority to contract and does not stand for the broader proposition that a contract only becomes effective upon formal compliance rather than functional compliance with statutory requirements to a valid contract.\\nThe City thus urges this Court to release them from their contractual obligation since they did not follow the black letter of their own ordinances which require a ratification to be set on it's Council's agenda and a formal yea-nay vote taken. The record shows that the City knew of the enlarged scope of the project, directed its City Manager to let the bid on the enlarged Scheme II project, partially paid Filler's fee based on a $2.1 million project and then, when they could not find sufficient funding, attempted to disavow any approval of the enlarged project. Given that the City also accepted the benefits of the enlarged project by asking bids while utilizing Filler's plans, the trial court was not clearly in error in finding a ratification of the contract.\\nThe City raises as an additional basis of appeal the contention that the lower court erred in requiring the City to pay Filler $5,500 for a feasibility study and to reimburse Filler for the cost of special consultants. These assertions are, however, without merit. In both situations the City Manager requested the services rendered and the City accepted the benefits.\\nAs a final attack, the City lists seven grounds on which it argues the lower court erred in improperly weighing the evidence. Summarized, the City's seven assertions of error are that the lower court erred in finding:\\n1. That Filler was asked to develop two design plans;\\n2. That the City Manager sent Filler a letter stating the total project cost was amended to a figure not to exceed $2.4 million;\\n3. That Filler was notified that the City Council approved the final specifications and that the project would be put out to bid;\\n4. That the City Council on October 4, 1972, approved partial payment to Filler based upon a $2.1 million cost;\\n5. That on December 20, 1972, the City Council authorized payment of a fee to Filler based on a $2.1 million cost;\\n6. That the low bidder on the civic center project based his bid on Filler's final estimate; and\\n7. That the City Council voted to proceed with construction.\\nThe standard for review of findings of fact was set out by this court in Alaska Placer Co. v. Lee, 553 P.2d 54, 59 (Alaska 1976):\\nThis court will not set aside a 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 a definite and firm conviction on the entire record that a mistake has been made. We must also give due regard to the trial court's opportunity to judge the credibility of the witnesses. (citations omitted)\\nWe are unconvinced that the lower court erred with respect to the seven grounds of error asserted by the City. In fact, the lower court's findings of fact are more than substantiated by the evidence at trial.\\nAFFIRMED.\\n. The City's point that Filler failed to plead ratification falls in the face of Alaska Rule of Civil Procedure 8(f) which states:\\nAll pleadings shall be construed so as to do substantial justice.\\nThus, as Professor Wright states with respect to Federal Rule of Civil Procedure 8(f) the model on which our state rule is patterned:\\n. . . all the Rule requires is 'a short and plain statement of the claim' that will give fair notice of what the plaintiffs claim is and the grounds upon which it rest. (Wright, Law of Federal Courts p. 285 (2nd ed. 1970))\\nFiller's complaint gives fair notice of his claim. See Record on Appeal 1-2.\\n. In Common Wealth Insurance Systems, Inc. v. Kersten, 40 Cal.App.3d 1014, 115 Cal.Rptr. 653, 661 (1974) ratification was defined as\\n. 'the voluntary election by a person to adopt in some manner as his own an act which was purportedly done on his behalf by another person, the effect of which, as to some or all persons, is to treat the act as if originally authorized by him'; ratification may be by conduct which is inconsistent with any reasonable contention on his part other than that he intended approving and adopting the act. (Rakestraw v. Rodrigues, supra, 8 Cal.3d 67, 73, 104 Cal.Rptr. 57, 60, 500 P.2d 1401, 1404.) Voluntary retention of benefits with knowledge of the unauthorized nature of the act constitutes ratification. (Fidelity & Casualty Co. v. Abraham, 70 Cal.App.2d 776, 782-783, 161 P.2d 689; 1 Witkin, Summary of Cal. Law (8th ed.) Agency and Employment, \\u00a7 129, p. 736; Rest.2d Agency, \\u00a7 98, : 99.) Acquiescence or silence may also constitute ratification. (Ralphs v. Hensler, 97 Cal. 296, 303, 32 P. 243; Waldteufel v. Sailor, 62 Cal.App.2d 577, 581, 144 P.2d 894. See Bank of America v. Perry, 41 Cal.App.2d 133, 141, 106 P.2d 53; Rest.2d Agency, supra, \\u00a7 94.)\\n.Record on Appeal 110-12.\\n. Id.\\n. McQuillan, Municipal Corporations \\u00a7 29.106, 520-521 (3rd ed. 1966).\\n. 515 P.2d at 891.\\n. 463 P.2d at 619.\"}"
\ No newline at end of file
diff --git a/alaska/10462063.json b/alaska/10462063.json
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+"{\"id\": \"10462063\", \"name\": \"Wilfred POULIN, Appellant, v. Dr. Harvey ZARTMAN, Appellee; Dr. Harvey ZARTMAN, Cross-Appellant, v. Wilfred POULIN, Cross-Appellee\", \"name_abbreviation\": \"Poulin v. Zartman\", \"decision_date\": \"1975-11-12\", \"docket_number\": \"Nos. 2120, 2127\", \"first_page\": \"251\", \"last_page\": \"277\", \"citations\": \"542 P.2d 251\", \"volume\": \"542\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-11T02:07:41.027749+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before RABINOWITZ, C. J., CON-NOR, J., and STEWART, Superior Court Judge.\", \"parties\": \"Wilfred POULIN, Appellant, v. Dr. Harvey ZARTMAN, Appellee. Dr. Harvey ZARTMAN, Cross-Appellant, v. Wilfred POULIN, Cross-Appellee.\", \"head_matter\": \"Wilfred POULIN, Appellant, v. Dr. Harvey ZARTMAN, Appellee. Dr. Harvey ZARTMAN, Cross-Appellant, v. Wilfred POULIN, Cross-Appellee.\\nNos. 2120, 2127.\\nSupreme Court of Alaska.\\nNov. 12, 1975.\\nTheodore R. Dunn and Warren W. Matthews, Jr. of Matthews, Dunn & Baily, Anchorage, James A. Parrish of Parrish Law Office, Fairbanks, for appellant and cross-appellee.\\nJames J. Delaney and Robert L. Eas-taugh of Delaney, Wiles, Moore, Hayes & Reitman, Anchorage, for appellee and cross-appellant.\\n. Apparently respiratory distress syndrome (RDS) and hyaline membranne disease are not synonymous. Rather, RDS is a genera term and HMS is one form of respiratory distress syndrome. A. Schaffer, Diseases of the New-horn 105 (2d ed. 1966).\", \"word_count\": \"13531\", \"char_count\": \"83934\", \"text\": \"OPINION\\nBefore RABINOWITZ, C. J., CON-NOR, J., and STEWART, Superior Court Judge.\\nCONNOR, Justice.\\nThis appeal arises from a medical malpractice action. It raises issues concerning admissibility of evidence, standards of conduct by a physician, and the \\\"informed consent\\\" doctrine.\\nA suit was brought by Wilfred Poulin on behalf of his infant daughter, Courtney Poulin, against Dr. Harvey Zartman. Poulin brought this action for damages alleging that Zartman improperly administered oxygen to Courtney, thereby causing her to become totally blind, and that Zart-man's failure to properly treat jaundice caused severe brain damage in the child. Poulin also contended that' Zartman administered treatment to Courtney without the informed consent of either of Courtney's parents.\\nAfter a trial in the Superior Court in which a jury verdict was rendered against him on August 25, 1973, Poulin moved alternatively for a judgment notwithstanding the verdict or a new trial. These motions were denied, and this appeal followed. Dr. Zartman has filed a cross-appeal claiming error in the denial of costs and attorneys' fees.\\nI. FACTS\\nCourtney Poulin was born at approximately 3:00 p. m. on February 9, 1968. She was a premature infant of about 28 weeks gestation. The baby was delivered by Dr. Claire A. Renn at the Anchorage Community Hospital. Dr. Renn summoned Dr. Harvey Zartman, the pediatrician then on duty, and Dr. Zartman saw Courtney for the first time at 3:30 p. m., one-half hour after her birth.\\nDr. Zartman found the infant in severe respiratory distress and he diagnosed her condition as either \\\"hyaline membrane disease (HMD), or respiratory distress syndrome (RDS)\\\". There is disagreement as to whether Dr. Zartman properly diagnosed HMD, but all witnesses agreed that Courtney Poulin was suffering respiratory distress and did require oxygen. Dr. Zart-man ordered supplemental oxygen at \\\"5 to 8 liters per minute or higher if necessary to keep pink.\\\" The propriety of ordering oxygen to be administered in this manner was one of the central issues in the trial.\\nCourtney continued to receive supplements of oxygen until 12:00 p. m. February 16, 1968. Oxygen-weaning commenced on the afternoon of February 15, 1968, and all oxygen supplements were ended at noon on February 16, 1968. Courtney Poulin subsequently became totally blind. She is suffering from retrolental fibroplasia (RLF). It is undisputed that excessive oxygen results in a higher incidence of RLF. However, there are studies indicating that RLF can occur in premature babies who have had virtually no oxygen supplement at all.\\nAt 7:00 a. m. February 11, 1968, the baby was noted to be jaundiced and this condition continued in varying degrees through at least February 17, 1968. Jaundice may indicate the presence of \\\"indirect bilirubin\\\" in the blood. Indirect bilirubin can cause brain damage. Nevertheless, Dr. Zartman did not regard a bilirubin test as necessary.- Today, Courtney Poulin is severely mentally retarded. Plaintiff contended at trial that the retardation resulted from a disease known as kernicterus, which is caused by elevated bilirubin in the blood. Plaintiff further contended that a \\\"simple, non dangerous\\\" bilirubin test could have detected the condition and thus led to alleviating it. However, plaintiff acknowledges that testimony concerning the cause of Courtney's mental retardation was in conflict.\\nMrs. Poulin, Courtney's mother, was not contacted by Dr. Zartman until February 19, 1968. While Courtney was in the hospital Dr. Zartman did talk with Mr. Pou-lin, but there is conflict as to whether he discussed the risks attendant to oxygen therapy with the father.\\nFollowing Courtney's discharge from the hospital it was noticed that she was not developing properly. She was subsequently diagnosed as being totally blind, resulting from retrolental fibroplasia (RLF), and severely mentally retarded. The Poulins then brought suit against Dr. Zartman.\\nOxygen Administration\\nOne of the key issues at trial concerned whether Dr. Zartman ordered an excessive amount of oxygen for Courtney, thereby causing retrolental fibroplasia (RLF) which resulted in her total blindness. It will be recalled that excessive oxygen has been shown to cause an increased incidence of RLF. In 1968, in Anchorage, Alaska, precise gauges for 'monitoring the amount of oxygen in the blood were not available. Thus, less accurate means of averting excessive oxygen had to be relied upon.\\nAn undisputed index of insufficient oxygen in the blood is the condition known as cyanosis. One who is cyanotic, i. e., oxygen deficient, becomes blue in the mucus membranes, lips, and skin. This can vary in degree with the first indicators being a \\\"duskiness\\\" in appearance. Apparently at the time that oxygen administration was commenced, Courtney was cyanotic. The last reported observation of cyanosis was on February 12, 1968, at 8:30 a. m. Oxygen treatment continued to 12:00 p. m. on February 16, 1968.\\nPlaintiff offered substantial expert testimony endorsing a system of oxygen-minimization referred to as \\\"titration\\\". Essentially this method reduces the oxygen concentration to a point at which a baby begins to turn cyanotic. The level then is raised slightly above that point and periodically the process is repeated. Defendant countered with his own experts, all of whom felt that Dr. Zartman's methodology was adequate. Zartman's methodology apparently consisted of \\\"working down\\\" from a concentration that was wholly adequate to avoid cyanosis, as opposed to \\\"working up\\\" from a concentration that was insufficient to prevent cyanosis, i. e., titration.\\nPoulin produced evidence from the American Academy of Pediatrics which stated that atmospheric oxygen concentration \\\"should be kept at the lowest possible level that will relieve the symptoms for which it is given. If possible, it should not be over 40 percent.\\\" The nurses' records reflect that from 8:30 a. m. on February 12, 1968, to 5:00 p. m. on February 15, 1968, the oxygen concentration was almost always above, and never below, 40 percent. During this 3\\u00bd day period,' the liter flow of 4 was reached at 6:30 p. m. on February 13, 1968. It remained at that flow level for the next 43\\u00bd hours, during which time oxygen concentration was at least 40 percent.\\nDr. Zartman offers three explanations for this high concentration of oxygen. He states that he ordered the baby to be \\\"kept pink\\\" and that if it is not cyanotic it is pink and there is \\\"no gray in-between.\\\" This, of course, begs the question of how much oxygen concentration is the least necessary to keep the baby pink.\\nThe doctor also stresses that throughout this period the baby was experiencing distress known as apnea, a condition of temporary cessation of breathing. Continuous oxygen therapy often will relieve the severity of apnea and many of the experts acknowledged that oxygen therapy is appropriate when apnea is present. Dr. Zartman's brief on appeal does not attempt to justify the quantity of oxygen by the presence of apnea, but only the continuous use of oxygen for nearly 3\\u00bd days following the last recorded incident of cyanosis.\\nFinally, Dr. Zartman points to testimony suggesting that the machine monitoring the air concentrations (a myra oxygen analyzer) was inaccurate. He particularly stresses that due to the construction of the incubator at 4 liters it was \\\"almost impossible\\\" to have a 40 percent concentration of oxygen. Poulin's response is that the oxygen analyzer was never tested and the nurses' notes are in fact the only record available as to what the concentration actually was.\\nIn summary, oxygen can be a dangerous substance, and excessive doses have been associated with a blindness-inducing disease known as retrolental fibroplasia (RLF). Courtney Poulin is blind as the result of RLF. Poulin's experts testified that the preferred method of controlling excessive oxygen in 1968 was titration, i. e., \\\"testing up\\\" from a cyanotic state until the condition is relieved. Dr. Zartman's experts supported his method of monitoring excessive oxygen, i. e., relieve the symptom of deficiency, in this case cyanos-is, then periodically \\\"test down\\\". For at least a 40-hour period, Courtney Poulin received high concentrations of oxygen without any testing, up or down.\\nJaundice, Bilirubin, and Retardation\\nAs previously noted, Courtney experienced continuing jaundice from at least February 11, 1968, to February 17, 1968. Jaundice may indicate elevated bilirubin in the blood. Elevated bilirubin can lead to kernicterus which is a disease causing brain damage. Bilirubin can be detected by a blood test. No such test was ordered. Today, Courtney Poulin suffers from severe mental retardation.\\nDr. Zartman's defense is two-fold in nature. First, he claims that the degree of jaundice observed was insufficient to warrant a bilirubin test. In support of this contention he notes that two other doctors saw the infant and also failed to order the test. Furthermore, head 'nurse Gill testified that the degree of jaundice, apparently a common symptom in newborn infants, was not unusual.\\nZartman's second defense is lack of proof of causation. He solicited expert testimony suggesting that Courtney's symptoms are not reflective of brain damage resulting from excessive bilirubin, but instead suggest mental deficiencies resulting from inadequate oxygen. Poulin himself acknowledges that causation was in, dispute.\\nThe relevance of the aforementioned facts to the legal issues on appeal is as follows. Poulin contends, among other things, that the evidence does not support the verdict. But, standing alone, the evi-dentiary conflicts on the issues of the appropriate method of oxygen administration, the cause of Courtney's mental retardation, and the informed consent doctrine would preclude reversal by this court. However, when the conflicting evidence is examined with an eye to the testimony that was admitted over objection, the instructions that were denied, and the standard of care that was submitted to the jury, the result is more problematic. In the circumstances, a review of each point raised on appeal is imperative.\\nII. LEGAL ISSUES\\nFor the purposes of clarity we have sorted the numerous legal issues into three categories: prejudice, standard of care, and informed consent. These are merely labels of convenience. Appellant urges 14 separate reversible errors by the trial court. The following provides a summary of the questions presented on appeal:\\n(a)Prejudice\\n(1) Did the court err in admitting testimony concerning Patricia Poulin's lack of prenatal care?\\n(2) Did the court err in admitting testimony concerning Wilfred Poulin's occupational and military background?\\n(3) Did the court err in refusing to instruct the jury that Patricia Poulin's failure to obtain prenatal care was irrelevant to Dr. Zartman's negligence or his duty of disclosure ?\\n(4) Did the court err in refusing a supplemental instruction stressing that Courtney Poulin, the infant, and not her parents, was the real party in interest and that she would receive the benefits of any damages awarded ?\\n(5) Did the court err in refusing to consider juror affidavits in support of Pou-lin's motion for a new trial, when those affidavits asserted that the jury was influenced by improper considerations of sympathy and bias?\\n(6) Did the court err in refusing to admit evidence concerning Zartman's liability insurance ?\\n(b)Standard of Care\\n(1) Did the court err in refusing to admit medical textbooks concerning certain substantive issues?\\n(2) Did the court err in instructing the jury that certain medical textbooks could not be used as substantive evidence ?\\n(3) Did the court err in refusing to give instructions holding the defendant to a higher standard of care than normal, and to a nationwide standard of care?\\n(4) Did the court err in refusing instructions concerning the defendant's duty to read nurses' notes and alert nurses to their failure to comply with the doctor's orders?\\n(5) Did the court err in refusing to instruct the jury that Courtney's special susceptibilities did not reduce the standard of care with which defendant must comply?\\n(6)Did the court err in failing to grant a judgment notwithstanding the verdict or new trial on the issue of negligent administration of oxygen?\\n(c)Informed Consent\\n(1) Did the court err in omitting reference to the informed consent issue in the general mandatory instruction?\\n(2) Did the court err in failing to grant a judgment notwithstanding the verdict or new trial on the issue of informed consent?\\n(d)Denial of Costs and Attorney's Fees\\n(1) Did the court err in denying costs and attorney's fees to Dr. Zartman ?\\nIII. PREJUDICE\\nAppellants' first claim of error asserts that the court improperly admitted testimony on Patricia Poulin's lack of prenatal care, and then compounded this harm by refusing to give plaintiff's supplemental instruction 4-A which, paraphrased, states that the mother's lack of prenatal care is irrelevant to the issue of defendant's negligence or breach of duty concerning informed consent.\\nQuestioning concerning the mother's lack of prenatal care arises at two points in the trial. First, during cross-examination of Mrs. Poulin, defense counsel asked her whether she had seen a doctor upon discovering she was pregnant, or at any time prior to Courtney's birth. The mother answered, over objection, that she had not. The second incident occurred during defense counsel's cross-examination of Mr. Poulin. At that time defense counsel, despite repeated objections, was able to establish that the Poulins had not seen a doctor prior to Courtney's birth, and that they had not done so because they favored the concept of \\\"natural\\\" childbirth.\\nThe defense counters any claim of reversible error concerning this testimony on two interrelated grounds. First, defendant asserts that the testimony was clearly relevant to the issues of proximate cause and damages. Second, it is asserted that the inquiry was not extensive and thus any prejudice which may have resulted did not outweigh the relevance of the testimony.\\nThe standard of review on appeal is certain. A trial judge will only be reversed for admitting prejudicial, but otherwise relevant, evidence if he has committed a \\\"clear abuse of discretion.\\\" Davis v. Chism, 513 P.2d 475, 479 (Alaska 1973). Thus, we first must consider the relevance of the testimony and then determine whether its prejudicial effect so outweighed its probative value that admission by the trial judge constituted a \\\"clear abuse of discretion\\\". See, e. g., Love v. State, 457 P.2d 622 (Alaska 1969).\\nAlaska case law defines the test of relevancy. \\\"To be of sufficient relevance for admission, testimony, documents or other evidence must have some tendency in reason to establish a proposition material to the case.\\\" Hutchings v. State, 518 P.2d 767, 769 (Alaska 1974). The dual concepts of logical relevance, i. e., some tendency to establish the ultimate point for which the evidence is offered, and materiality, i. e., germaneness of the ultimate point to issues in the trial, have been emphasized repeatedly in our opinions.\\nZartman asserts that testimony concerning lack of prenatal care and philosophical attitudes concerning childbirth are relevant to the issues of proximate cause and damages. He deduces that conclusion from the undisputed fact that the likelihood of prematurity is higher in the absence of prenatal care and that blindness and brain damage are more prevalent in premature babies than in fullterm babies.\\nHowever, there was no dispute about Courtney Poulin's prematurity. Dr. Zartman was called to treat an infant born at about 26 to 28 weeks of gestation. Likewise, there was no dispute concerning the statistically higher incidence of blindness and brain damage in premature infants. The issue in this case centers on whether the baby's prematurity or Dr. Zartman's care caused Courtney's maladies. The reasons for Courtney Poulin's prematurity are simply not material to any issue in this case. No testimony was offered at any point suggesting that premature babies who lacked prenatal care have a higher incidence of blindness or brain disease than prematures with prenatal care. And certainly the parents' philosophic reasons for failing to obtain prenatal care are both irrelevant and immaterial.\\nTo use the language in Hutchings v. State, 518 P.2d 767, 769 (Alaska 1974), we conclude that this testimony was erroneously admitted, since \\\"[t]o be of sufficient relevance for admission, testimony . must have some tendency in reason to establish a proposition material to the case.\\\" The reasons for Courtney Pou-lin's prematurity are not material to this case. Thus the testimony concerning lack of prenatal care and the Poulins' attitudes towards \\\"natural childbirth\\\" should have been excluded.\\nZartman urges that Poulin has waived any objection to the testimony by submitting an exhibit which itself refers to lack of prenatal care. Appellee cites C. McCormick, Evidence \\u00a7 55, at 128 (2d ed. 1972), for his waiver contention. How ever, McCormick goes on to state that if a party's objection to evidence is overruled (as was the case here) he may then treat this as the \\\"law of the case\\\" and submit his own evidence to explain or rebut the admitted evidence, and such conduct will not constitute a waiver. McCormick, supra, \\u00a7 55, at 128-29.\\nWe turn now to whether admission of this testimony was harmless or prejudicial error. Poulin simply asserts that the testimony, constituting an attack on the parents, prejudiced the jury against rendering a verdict for the child. Zartman goes no further than to state that Civil Rule 61 prohibits reversal for so-called \\\"harmless error.\\\"\\nThere is no doubt that appellant has the burden of proving both error and prejudice. Zerbinos v. Lewis, 394 P.2d 886, 889-90 (Alaska 1965). However the test of \\\"harmless error\\\" is a subtle one. Since the operative language in Civil Rule 61 and Criminal Rule 47(a) is identical, case law in the criminal area is applicable and instructive. The definitive Alaska opinion concerning \\\"harmless error\\\" is Love v. State, 457 P.2d 622 (Alaska 1969).\\nThe Love decision held that harmless error does not mean that \\\"elided from the record, there would be enough evidence to support a [verdict].\\\" It is not this court's function to consider \\\"how the error would have affected us if we had tried the case, but how it may have affected a jury of reasonable laymen,\\\" Love, supra, at 630. See also Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). This standard does not require proof of harm beyond a reasonable doubt. Rather, \\\"the members of this court must necessarily put themselves, as nearly as possible in the position of the jury in order to determine whether, as reasonable men, the error committed probably affected their verdict.\\\" Love, supra, 457 P.2d at 631 n. 15 [citations omitted].\\nWe have carefully reviewed the record and transcripts and familiarized ourselves with the testimony and evidence of both sides. We are impressed by the complexity of the facts which gave rise to this litigation. We also are confident that any jury would appreciate the grave impact which a verdict for either party would have upon the nonprevailing side. Additionally, we have considered that the challenged testimony consumed a very small amount of time in a lengthy trial. There is no indication that Patricia Poulin's lack of prenatal care was mentioned by the defendant during closing argument. In light of the record as a whole, we believe that a reasonable jury would not have been affected by this testimony and that this particular jury in fact was not affected by this testimony. We conclude that this was harmless error.\\nPoulin claims that the trial court erred in failing to give plaintiff's supplemental instruction 4-A. That instruction stated:\\n\\\"The fact that Patricia Poulin did not seek prenatal care prior to the day on which Courtney Poulin was born is irrelevant on the question of defendant's negligence or whether or not defendant breached his duty of disclosure.\\\"\\nIt was clearly designed to correct any error in the admission of testimony regarding lack of prenatal care. Since we have found that the admission of that testimony was harmless error, the propriety of the court's failure to give supplemental instruction 4-A is moot.\\nAppellant next claims that the court erred in admitting testimony concerning Mr. Poulin's military and occupational background.\\nMr. Poulin testified on direct examination concerning what Dr. Zartman had told him about Courtney's condition. The testimony went to the issue of informed consent. On cross-examination Mr. Poulin was asked, among other things, about the reasons for his military discharge (mental unsuitability) and the number of jobs that he had held during the nine-month period that he lived in Alaska (five). Defense counsel elicited these facts over continuing objections from plaintiff's attorney. This finally resulted in an extended in-chambers colloquy with the trial judge. On recalling the jury, defense counsel commenced questioning Mr. Poulin about his philosophy of natural childbirth. This is discussed above and need not be repeated here.\\nDefense counsel then and now justifies this line of questioning on the grounds that it is background testimony designed to \\\"flesh-out\\\" a witness, and impeachment of credibility since Dr. Zartman contested Poulin's statements concerning the content of their conversation. But both at trial and on appeal defense counsel seems uncertain about the precise basis for this questioning. Appellee begins by talking about \\\"background\\\" and \\\"demeanor\\\" going to credibility. The argument then converts into urging that these questions had some bearing on damages. The thrust of this argument seems to be that somehow Courtney's parents' social class has some bearing on her actuarial lifetime earnings. However, this was not the basis for computing earnings-loss damages at trial, for there a pure statistical median was used.\\nPoulin urges that at best the prejudicial value of this testimony outweighed its probative value and at worst flatly violated the proscription against using particular wrongful acts to impeach credibility. That proscription is contained in Civil Rule 43(g) (11). Since Civil Rule 43(g) (11)[b] clearly refutes any claim that the questions are valid as to credibility, and since the issue of damages was beyond the scope of direct examination, the only conceivable justification for this line of questioning rests in providing sufficient background to enable the jury to judge a witness' demeanor.\\nIt has been recognized that background information, such as a person's occupation, place of residence, etc., is useful in placing a witness in his \\\"proper setting\\\" so that a jury may better judge his credibility. Alford v. United States, 282 U.S. 687, 693, 51 S.Ct. 218, 75 L.Ed. 624 (1931). RLR v. State, 487 P.2d 27, 44 (Alaska 1971). But, while such preliminary questioning is generally permitted, \\\"[t]here is a duty to protect [a witness] from questions which go beyond the bounds of proper cross-examination merely to harass, annoy or humiliate.\\\" Alford, supra, 282 U.S. at 694, 51 S.Ct. at 220.\\nBecause we favor the reception of evidence in the absence of strong countervailing considerations, we have on occa sion sustained rulings admitting evidence of an arguably prejudicial nature. However, we also have affirmed the curtailment of wide-ranging cross-examination, and have reversed a trial court which permitted a cross-examiner to paint with an unreasonably broad stroke.\\nBackground or preliminary questions which are designed to discredit the witness as a person, and not as a witness, are improper cross-examination. In the present case Wilfred Poulin testified on behalf of his daughter. Defendant introduced evidence of Poulin's military discharge, which did not result from lying or lack of veracity, but from \\\"mental unsuitability.\\\" Defendant also elicited the fact that plaintiff had held five jobs during a nine month period of time, over jive years ago. These facts would hardly indicate that the witness was therefore likely to commit perjury. Such questioning should not have been allowed.\\nAlthough we have concluded that this evidence was improperly admitted, we do not believe that it warrants a reversal of the judgment. Our reasoning here is similar to that which we have applied regarding the admission of evidence on Patricia Poulin's lack of prenatal care. Specifically, we note that this line of questioning consumed a very small amount of time in a lengthy trial. Nor was it emphasized or even reiterated during closing argument. Under these circumstances, we hold that allowing this line of questioning was harmless error.\\nAppellant next urges that the trial court erred in refusing to give plaintiff's supplemental instruction No. 4 which, paraphrased, stressed that the infant was the real party in interest, and that she, and not her parents, would receive the sole and exclusive benefit of any award. The rejected instruction stated:\\n\\\"You are instructed that the plaintiff in this case is Wilfred Poulin as father and natural guardian of the child Courtney Poulin. In law Wilfred Poulin brings this action solely and exclusively on behalf of Courtney Poulin in a representative capacity. This is done because the law prohibits a minor child from bringing the action in her own name. Neither Wilfred Poulin nor Patricia Poulin are plaintiffs in their own capacity in this action and any damages awarded by you under these instructions will go to the sole and exclusive benefit of Courtney Poulin.\\\"\\nPoulin offers three cumulative points to support his claim of error. He urges that this is an accurate statement of the law; that this court has approved of a \\\"distinguishing\\\" instruction when the probability of confusing parties is high; that it is critical where the probability of prejudice is as high as it is here. We find none of these points persuasive.\\nPoulin asserts that the instruction is an accurate statement of the law, citing Special Order No. 72 of the Superior Court, State of Alaska, Third Judicial District, October 31, 1972. Special Order No. 72 is addressed solely to settlement agreements involving minors. Furthermore, even under this order damages do not go to the \\\"sole and exclusive benefit\\\" of the child but may be reached to pay attorney's fees. However, the order does suggest that the funds are not for the benefit of the parents.\\nAppellant next claims that Aydlett v. Haines, 511 P.2d 1311, 1315 n. 8 (Alaska 1973), recognizes situations where confusion amongst family members requires that the real party in interest be made clear to the jury. The Aydlett case concerned in-tra-family litigation. The portion of the opinion and the facts thereof are so inap-posite to the present case that citation of this case is unpersuasive. Furthermore, numerous instructions to the jury suggest, albeit indirectly, that Courtney, not her parents, is to receive the benefit of the award.\\nPoulin concludes by urging that the prejudice in this case makes the rejection of the instruction reversible error. Since we have held that the contested admissions were harmless error, we do not agree.\\nIn support of his motions for a judgment notwithstanding the verdict and a new trial Poulin submitted affidavits from six jurors. Appellee moved, with supporting authority, that these affidavits be stricken. Apparently this was done. Poulin now contends that it was reversible error for the judge to have refused to consider the affidavits.\\nAt the outset it should be noted that neither side cites any part of the record indicating that the judge \\\"refused to consider\\\" the affidavits. Since Alaska, like virtually all states, recognizes that there may be juror misconduct of sufficient magnitude to warrant reversal, it would be improper for a judge to refuse to read the affidavits. However, appellant appears to have equated the word \\\"consider\\\" with the phrase \\\"rule in plaintiff's favor.\\\" That verbal equation is incorrect. It is our conclusion, based on the language in the order denying the judgment notwithstanding the verdict and new trial, that the trial judge did \\\"consider\\\" the affidavits, but found them lacking in content sufficient to affect the verdict. We now turn to the merits of that conclusion.\\nBoth sides recognize the established and general rule which holds that jurors normally cannot impeach their own verdict. But appellant argues that these affidavits fit within an exception to the general rule, which holds that juror affidavits may be used to impeach a verdict where the affidavits show a bias or prejudice which was falsely denied during voir dire. Appellant further contends that these affidavits reflect the type of jury misconduct which many courts have been willing to censure by requiring a new trial. Neither proposition is supportable on the facts of this case.\\nNone of the six affidavits in the present case suggest any juror bias, for or against either side, at the time of voir dire. The fact that a juror may develop a like or dislike for one side during trial and that this in turn may affect the way that juror votes in the jury room, is a fact which \\\"in heres in the verdict.\\\" The United States Supreme Court has long recognized the folly and chaos which would result from reversing verdicts for that reason.\\nAppellant cites a number of cases from sister states which, he claims, support his arguments. We have reviewed these cases and are unpersuaded. Overt juror misconduct or concealment of bias during voir dire, existed in several cases which appellant relies on. No such impropriety exists here. The case which is most supportive of appellant's claim, Stepp v. Texas & P. Ry. Co., 20 S.W.2d 324 (Tex.Civ.App.1929), has never been cited for the proposition here in issue, and appears to contravene other established case law in Texas.\\nAlaska case law suggests that only serious juror misconduct should be grounds for upsetting a jury verdict. Prior to statehood the Ninth Circuit ruled that juror statements concerning \\\"expressions, arguments, motives and beliefs\\\" should be rejected in the absence of special statutes. Northern Pacific Ry. Co. v. Mely, 219 F.2d 199, 201 n. 3 (9th Cir.1954). The touchstone case in which this court has addressed the issue is West v. State, 409 P.2d 847, 852 (Alaska 1966), where we held that only evidence which \\\"clearly establishes a serious violation of the juror's duty\\\" should be sufficient to impeach a verdict. The evidence in this case does not reveal the type of juror behavior which would warrant a new trial.\\nPoulin argues that the trial court erred in rejecting all evidence relating to insurance.\\nAt a hearing concerning certain pre-trial motions, the court ruled favorably on a defense motion to preclude plaintiff from referring to insurance without first obtaining the court's approval. Appellant in effect contends that this ruling prejudiced him by requiring the jury to speculate on Dr. Zartman's ability to pay. He bolsters this assertion with juror affidavits, previously discussed, and a note which the jurors sent to the judge asking if they could find liability without awarding damages.\\nSummarily, appellant seems to argue that the absence of proof of insurance left the jurors free to reason that 'Dr. Zartman lacked insurance. This, in turn, allegedly created a bias in favor of the defendant, particularly since the requested verdict was large and state aid for the plaintiff was a possibility. Under facts such as these, appellant argues, a blanket ruling precluding any reference to insurance, even on voir dire, offers a larger prejudicial stumbling block to plaintiff than admission, with a warning instruction, would present to defendant.\\nHowever, the court's order does not appear to have precluded reference to insurance absolutely, but rather required appellant to approach the court for approval before embarking on any particular line of questioning concerning insurance. Appellant has referred to no part of the tran script suggesting that he even attempted to raise the issue at trial.\\nDespite this unfavorable fact setting, appellant urges us to modify a rule that has been endorsed by virtually every authority, which has considered the issue. Stated simply, the general rule is that evidence of insurance is precluded in negligence cases. The reason for the rule is either irrelevance or undue prejudice. There are certain recognized exceptions to the rule, but none seem to apply here.\\nAppellant, relying heavily on Professor McCormick's treatise, argues for a more \\\"flexible\\\" rule in which speculation would be dampened by allowing proof of insurance, followed by a cautionary instruction requiring the jury to disregard it. While many have recoiled from this position, the proposal's most appealing quality is its potential for permanently removing the insurance issue from the jury's mind. Unfortunately, authority for appellant's view seems to be limited to McCormick.\\nIn Alaska the issue is one of first impression. Case law in this area certainly leaves a trial court free to adopt McCormick's view should it choose to do so. But the novelty of appellant's position, in light of the complexity of this case and appellant's failure to actively pursue the issue at trial, causes us to conclude that the trial court's order did not constitute reversible error.\\nIV. STANDARD OF CARE\\nThe appellate points, relating to the appropriate medical standard of care with which Dr. Zartman was expected to comply, can be subdivided into three catego-ies: the role of medical textbooks in establishing the proper standard of care; specific instructions concerning the standard of care; sufficiency of the evidence in view of the standard of care.\\n(a) Textbooks\\nAppellant argues that the trial court erred in refusing to admit certain medical treatises to prove substantive propositions, and that the court further erred in instructing the jury to use the medical textbooks for impeachment and not as substantive evidence.\\nAt trial appellant offered a number of medical treatises for the substantive content they contained. The trial judge considered briefs and oral argument on the issue and concluded that these works should not be allowed as direct evidence of the statements contained therein. Although neither side has cited to the transcript, apparently many, if not all, of these medical texts were used during cross-examination by plaintiff. This is asserted in appellee's brief and can be inferred from the trial court's limiting instruction # 9A, which warned the jury not to consider the medical texts used on cross-examination as evidence of the truth of the assertions they contained.\\nAppellant claims that the ruling and the limiting instruction constitutes reversible error. He argues that the treatises were relevant on both the issue of proper oxygen treatment for premature babies and the issue of informed consent. The relevance of the materials was not contested by appellee either at trial or in his brief. Instead, appellee claims that the treatises constitute hearsay which fits within no generally recognized exception to the rule. Appellant urges us to recognize an exception which many legal scholars endorse and which a few states have adopted.\\nHearsay traditionally has been rejected for the primary reasons that it is thought to be both untrustworthy and unnecessary. Usually, if a particular type of hearsay is determined to be highly trustworthy, e. g., a declaration against pecuniary interest, or highly necessary, e. g., a dying declaration, an exception to the hearsay rule allows the evidence to be admitted.\\nHistorically, medical treaties were thought to be either untrustworthy or insufficiently necessary to warrant their admission as direct evidence. Those claiming that such treatises are untrustworthy bolster their contention with the following classic arguments:\\n(1) The author is not under oath, nor is he present for the jury to observe his demeanor.\\n(2) The crucial adversarial tactic of cross-examination, with its virtues for uncovering the truth, is impossible.\\n(3) Medical science is of such a rapidly changing nature that the printed work may be obsolescent.\\nThe opponents of medical treatises go on to urge that the treatises are not necessary, at least when experts can be obtained by the proponents of the textbooks. In some states the doctrine of res ipsa loquitur is claimed to obviate the need for medical treatises to prove breach of the standard of due care.\\nThose who favor the admission of medical treatises counter most of these arguments and in doing so justify medical treatises as both trustworthy and necessary. They first contend that textbooks are trustworthy because:\\n(1) An oath is no guarantee of veracity (nor is demeanor). Furthermore, logic would suggest that one is less motivated to distort the truth in the uncontentious context of scholarly research than in the partisan heat of a courtroom trial.\\n(2) The prime virtue of cross-examination rests in its capacity for \\\"filling out\\\" testimony. This will not be lost since other treatises and experts can be used to complete the picture. In any event, cross-examination is frequently sacrificed in the face of sufficient need, e. g., dying declarations.\\n(3) The assertion that the rapidly changing nature of medicine makes it an improper subject for printed testimony is rejected as contrary to fact.\\nThe proponents then claim a pressing need for this type of evidence. Two reasons usually are given:\\n(1) The costs of expert legal advice would be greatly reduced;\\n(2) The possibility of a \\\"conspiracy of silence\\\" by doctors protecting their own kind would be lessened.\\nWhile the arguments supporting both positions are intriguing, we find it unnecessary to resolve the issue at this time. In the case at bar appellant was able to obtain outstanding experts to testify on his behalf. Furthermore, he did make use of the treatises on cross-examination. Thus it is hard to see how appellant was harmed by the ruling and instruction. We therefore concluded that any claimed error which the trial court may have committed was harmless.\\nAppellant also argues that the treatises were not offered for the truth asserted therein, but to show what Dr. Zart-man knew or should have known about oxygen therapy. This point was also made at trial. In the case of multiple-use testimony, admission always rests in the sound discretion of the trial judge. We do not understand what relevance Dr. Zartman's knowledge of existing medical techniques has to the issue of negligence or informed consent. Appellant cited no malpractice cases suggesting that knowledge is an operative element in this type of suit. Appellee cites Naccarato v. Grob, 12 Mich.App. 130, 162 N.W.2d 305 (1968), which expressly holds that such information is not relevant. In any event, Dr. Zartman's trial position expressly rejected \\\"titration\\\" as being a \\\"dangerous\\\" technique. This hardly suggests lack of awareness of the method on his part. Therefore, any error in this regard was harmless.\\n(b) Instructions Concerning Standard of Care\\nAlaska's normal standard of care for physicians is set forth in AS 09.55.540, which provides as follows:\\n\\\"(a) In a malpractice action based on the negligence of a physician licensed under AS 08.64, or a dentist licensed under AS 08.36, the plaintiff shall have the burden of proving\\n(1) the degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians or dentists practicing the same specialty in similar communities to that in which the defendant practices;\\n(2) that the defendant either lacked this degree of knowledge or skill or failed to exercise this degree of care; and\\n(3) that as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.\\n(b) In malpractice actions there shall be no presumption of negligence on the part of the defendant.\\\" (\\u00a7 1 ch. 49 SLA 1967) (emphasis added)\\nAppellant requested three types of instructions concerning the medical standard of care and each type was rejected. The first type, consisting of two separate instructions, suggested that doctors with \\\"superior knowledge\\\" or certified by a National Board be held to a higher standard than the \\\"similar communities\\\" test set out by statute. The second type,' based on the facts of this case, in essence stated that Dr. Zartman's failure to see that his orders were being properly administered breached the \\\"accepted standards of care.\\\" The third type simply held that any special susceptibilities which Courtney Poulin had did not relieve the doctor of liability for any negligence on his part. As already noted, each instruction was rejected and appellant argues that this constitutes reversible error.\\nDr. Zartman was trained in a large, prestigious medical school in Chicago; he is licensed to practice medicine in five states ; and he has been certified by the American Board of Pediatrics. Appellant argues that doctors with such \\\"superior knowledge\\\" or national board certification should be held to a higher standard than the \\\"similar communities\\\" test of AS 09.-55.540. The trial judge rejected appellant's proposed instruction #15 (on superior knowledge), and supplemental instruction # 7 (on national certification), in favor of an instruction embodying the essential language of the statute. Appellant claims that this constitutes reversible error.\\nWe have reviewed the law on this subject and find that the various states have adopted a myriad of positions, from New Mexico, which applies a strict locality test, to Michigan, which feels that geographic locale is irrelevant in cases involving specialists. The majority of states have adopted a modified locality rule such as the \\\"similar communities\\\" test contained in AS 09.55.540.\\nAppellant contends that AS 09.55.540 sets a \\\"minimum standard\\\" and that those doctors with special skills must be held to account for those special skills. He cites Professor Prosser as supporting that proposition at common law. Prosser does state that \\\"a physician who is possessed of unusual skill or knowledge must use care which is reasonable in the light of his special ability and information\\\" but he adds that \\\"the care required is still only the ordinary care of a reasonable man assuming he has such special knowledge.\\\" The language of AS 09.55.540 takes into account this \\\"objective\\\" higher standard for specialists with the proviso that the standard be based on \\\"physicians practicing the same specialty in similar communities.\\\" (emphasis added)\\nAppellant also argues that nationally certified specialists should be held to a nation al, rather than a geographically localized standard of care. He cites opinions from six states which allegedly support his position. Probably the strongest cases Poulin cites are Carbone v. Warburton, 22 N.J.Super. 5, 94 A.2d 680, 683 (1953); Kronke v. Danielson, 108 Ariz. 400, 499 P.2d 156 (1972); and Pederson v. Dumouchel, 72 Wash.2d 73, 431 P.2d 973 (1967). Those courts clearly endorsed a general standard for specialists. Both Brune v. Belinkoff, 354 Mass. 102, 235 N.E.2d 793 (1968) and McGulpen v. Bessmer, 241 Iowa 1119, 43 N.W.2d 121 (1950), also endorse a general, non-geographical standard, but both courts were impressed by the easy accessibility to major medical centers which the doctors had. Hundley v. Martinez, 151 W.Va. 977, 158 S.E.2d 159 (1967), arguably supports a \\\"similar communities\\\" test since the court merely states that it concurs with the \\\"liberalization\\\" of the locality rule, while it does \\\"not abrogate such rule in all instances,\\\" in qualifying an expert who had never been to the locality in question. 158 S.E.2d at 168.\\nAppellant's argument in this regard is a strong one. But we must reject his claim of error. There are certain initial limits pl\\u00e1ced upon us in the interpretation of statutes. This was dwelt upon in Alaska Mines & Minerals, Inc. v. Alaska Indust. Bd., 354 P.2d 376, 379 (Alaska 1960). There we stated that if a statute is unambiguous and clearly expresses the intent of the legislature, it should not be modified or extended by judicial construction. This was elaborated on in State v. City of Anchorage, 513 P.2d 1104, 1109 (Alaska 1973), where we stated that the legislative \\\"language [must be] so unambiguous as to leave no doubt as to the meaning or scope of the result dictated.\\\" The language of AS 09.55.540 is so clear and unambiguous that we are foreclosed from broadening the standard contained therein through judicial construction.\\nWe now turn to the next claim of error. Appellant submitted two instructions stating in essence that lack of proper supervision could constitute a breach of a doctor's standard of care. The trial judge rejected both instructions and Poulin claims error, relying exclusively on Toth v. Community Hospital, 22 N.Y.2d 255, 292 N.Y.S.2d 440, 239 N.E.2d 368 (1968).\\nAppellant's reliance on the Toth case is very understandable. Not only are the facts of that case quite similar to the facts here, but the instruction there in issue was an obvious pattern for Poulin's supplemental instruction #8. In Toth the doctor had ordered six liters of oxygen for twelve hours, then a reduction to four liters. In fact, the oxygen was not reduced for nearly 30 days. The baby developed RLF, and the parents sued the doctor. The trial judge refused plaintiff's instruction on his duty of supervision, and the jury found in favor of defendant. On appeal New York's highest court reversed because of the trial court's refusal to give the instruction.\\nIn the present case it appears to be undisputed that oxygen should be administered at the lowest possible level that will relieve the symptoms for which it is given. Dr. Zartman ordered oxygen to be administered to Courtney Poulin in an amount \\\"necessary to keep pink.\\\" A number of defense witnesses, including Dr. Zartman himself, acknowledged that some form of periodic down-testing of oxygen was required, although none was expressly ordered. The nurses' records reflect that a liter flow of 4 was reached at 6:30 p. m. on February 13, 1968, and it remained at that flow level until 1:15 p. m. on February 15, 1968. During this 43\\u00be hour period, Dr. Zartman did not attend the baby at all. Doctors Peterson and Tower did visit the child at 2:00-3:00 p. m. on February 14, 1968, but no reduction of liter flow was ordered, despite an apparent absence of cy-anosis. When Dr. Zartman again reexamined the child on February 15, 1968, he ordered her to be weaned from all oxygen.\\nPoulin submitted two instructions concerning Zartman's duty of supervision and both were rejected. Proposed instruction no. 18 stated:\\n\\\"If a physician is aware of a risk in the therapy which he orders and relies upon the nursing staff to follow a procedure to minimize that risk, he will be liable for injury resulting to the patient for the nurses failure to do so, if the nurses do not follow the procedure anticipated and he has an opportunity to discover the deviation from the procedure and he fails to do so.\\\"\\nIn our opinion, the trial court's refusal to give proposed instruction no. 18 was not error, since we find that the instruction is incomplete, if not wholly lacking, as to the crucial element of proximate cause, which is essential to any liability predicated on negligence.\\nHowever, Poulin also submitted proposed instruction no. 8, which provided:\\n\\\"If you find that Dr. Zartman believed that continuous administration of oxygen to Courtney Poulin in an amount greater than that necessary to maintain her pink color would be harmful to her and that the dosage was continued in amounts higher than that necessary to maintain her pink color and you further find that the doctor failed to ascertain that the nurses were not periodically testing the oxygen level, as he anticipated, to determine the minimum level of oxygen then you should find such failure by him not to be in accord with the accepted standards of care and diligence required of physicians and if such failure on his part contributed to cause or to aggravate the injury to Courtney Poulin, you should return a verdict against the doctor.\\\"\\nThis instruction also was rejected, and no instruction by the trial court expressly and specifically called the jury's attention to Poulin's contention that Zartman's lack of supervision may have proximately caused Courtney's blindness, and therefore constituted medical malpractice.\\nWe are gravely concerned that no instruction regarding supervision was given. Dr. Zartman realized that excessive oxygen was dangerous, but he relied on the nursing staff, without the benefit of an explicit order, to periodically reduce the oxygen if the baby remained pink. He had the opportunity during a 43\\u00be hour period to ascertain whether this safety procedure was in fact being carried out, but he did not visit the baby during that time. Dr. Zartman had no personal knowledge of the training and background of the nurses on duty during this critical period, and there is also no indication that he asked the doctors who \\\"filled-in\\\" for him to determine whether the nurses were reducing the oxygen flow, as may have been appropriate.\\nWe are not stating or implying that the omissions enumerated in the preceding paragraph constitute medical negligence. Such a conclusion is within the purview of a jury to determine. However, we believe that in a lengthy and complex case involving two theories of liability which are closely intertwined, yet wholly separate and distinct, it is incumbent upon the trial judge to make clear to the jury, in some manner, that the law recognizes and acknowledges the distinctions in the theories and that the jury must do likewise in rerdering its verdict.\\nIn this case the questions about proper therapeutic procedure, and the proper execution of a particular therapeutic procedure, are closely related. Poulin made two separate requests for instructions which would have highlighted the distinction. While the trial court was not re quired to give either instruction verbatim, we hold that the failure to give any instruction on the issue of medical supervision constitutes error.\\nAppellee argues that the trial court instructed the jury generally on negligence. So did the trial court in Toth v. Community Hospital, supra. But appellee distinguishes the two cases by claiming that in Toth the issue was withheld from the jury, whereas here Poulin argued it to the jury. This argument certainly would not have persuaded the Toth court. There, although plaintiff had not pleaded or argued the \\\"supervision\\\" theory, the court, with one member dissenting, found error. The dissenting judge refused to join the majority because supervision had not been a theory of the case. Here lack of supervision was an obvious theory and the Toth court surely would have found this to be error.\\nAppellee also argues that this was a \\\"specific\\\" instruction of the nature proscribed by this court in Clary v. Fifth Ave. Chrysler Center, Inc., 454 P.2d 244 (Alaska 1969). It is true that we favor general instructions over argumentative, pro and con instructions. Nothing in our present holding contradicts that maxim. However, the ruling in Clary resulted from an instruction requesting the recitation of sixteen separate duties. The case at bar is much less extreme. In addition, the facts in this case gave rise to two distinct theories which a jury might tend to combine in rendering their verdict. Under the circumstances we hold that the failure to give any instruction highlighting the duty of supervision was reversible error.\\nAppellant requested supplemental instruction # 3, which reads as follows:\\n\\\"You are instructed that the fact that the plaintiff was unusually susceptible to injury because of her prematurity does not relieve the defendant from liability for any injuries, disabilities, or damages resulting to the plaintiff proximately caused or contributed to by the defendant's negligence or breach of his duty of disclosure.\\\"\\nThe instruction was rejected and appellant claims this rejection as prejudicial error.\\nPoulin relies on pattern jury instructions in California Jury Instructions \\u2014 Civil (Cal Jic 1959) and Alexander's Jury Instructions in Medical Issues (1966). He also cites three out-of-state cases which allegedly support his position. None of these authorities is persuasive.\\nThe Cal Jic instruction # 14.65 (5th ed. 1969) is under the broad label of \\\"Damages \\u2014 Aggravation of Preexisting condition.\\\" Basically, it is designed to ensure that the unusually susceptible person, sometimes called the \\\"egg-shelled\\\" plaintiff, will receive full recovery for his injuries. Thus it goes to the question of damages once liability is established, not to the scope of duty in establishing liability in the first place. Rubano v. Koenen, 152 Conn. 134, 204 A.2d 407 (1964), Sears Roebuck & Co. v. Daniels, 299 F.2d 154 (8th Cir. 1962) and Meeks v. Yancey, 43 Tenn.App. 667, 311 S.W.2d 329 (1957), are also cited by appellant. They too are concerned with the so-called \\\"egg-shelled\\\" plaintiff. Only jury instruction # 4-23 offered by Alexander in his book entitled Jury Instructions on Medical Issues appears to be on point. However, the Alexander instruction, which is similar to appellant's instruction, was culled from Lemere v. Safeway, 102 Cal.App.2d 712, 228 P.2d 296, 303 (1951). That case also involved an \\\"egg-shelled\\\" plaintiff, and the appeal was based on a claim of insufficient damages at trial. The language which Alexander extracts was at the very end of a lengthy jury instruction which the appellate court approved of in affirming the verdict. Hence, none of Poulin's authority is on point in this case.\\nAppellee argues that evidence on Courtney's prematurity established not merely a susceptibility, but indeed a proximate cause for Courtney's injuries. This was a central theme in Zartman's defense and certainly would appear to be a legitimate jury question.\\nFinally, a careful reading of the instruction reveals that it states in essence that Courtney's susceptibility does not excuse Zartman's negligence. Since Zart-man's negligence is the very thing in issue, the instruction is argumentative and hence improper. Clary v. Fifth Avenue Chrysler Center, Inc., supra. Even the Alexander instruction, which so closely parallels appellant's requested instruction, states that susceptibility does not excuse negligence \\\"if any there was.\\\"\\n(c) Sufficiency of the Evidence\\nAppellant urges that under any standard of care the evidence was such that the jury's verdict was wrong and Judge Buck-alew's denial of a judgment notwithstanding the verdict or, at least, a new trial was reversible error. The record does not support this contention.\\nAppellant correctly cites the test for reviewing a denial of a judgment notwithstanding the verdict. In essence, we must review the record in a light most favorable to appellee, and reverse only if reasonable and fair-minded persons would invariably have found for appellant. City of Fairbanks v. Nesbett, 432 P.2d 607, 609-610 (Alaska 1967).\\nAppellee offers the proper test for the review of a denial of a new trial for alleged insufficiency of evidence. That standard allows reversal only if we determine that the trial judge abused his sound discretion. In this context, such abuse will be found only if evidence supporting the verdict was completely lacking or so slight and unconvincing as to be plainly unreasonable and unjust. Ahlstrom v. Cummings, 388 P.2d 261, 262 (Alaska 1964). Thus only in the absence of an evi-dentiary basis or a miscarriage of justice will we grant a new trial on the grounds of jury error. Mertz v. J. M. Covington Corp., 470 P.2d 532, 536 (Alaska 1970).\\nOur review of the record convinces us that no error was committed in the trial court's denial of a judgment notwithstanding the verdict or new trial. The evidence regarding the proper method of administering oxygen and the need for administering a bilirubin test was in conflict with substantial testimony supporting the approach which Dr. Zartman took. With regard to adequate supervision, we are disinclined to rule on this issue as a matter of law, since we believe that the facts established on this record would support a jury verdict for either side. On the issue of informed consent, which the next section of this opinion addresses in detail, we hold that Poulin's failure to present adequate evidence to prove proximate cause renders unassailable the jury's verdict on this issue.\\nV. INFORMED CONSENT\\nAppellant raises issues concerning informed consent under two separate rubrics. First, he contends that the instructions concerning the basis for liability precluded the jury from ever reaching the issue of informed consent. Second, he contends that the weight of the evidence presented on informed consent, when coupled with the modern version of that doctrine, made a judgment notwithstanding the verdict or new trial imperative. Therefore, it is urged that the denial of the motion for a judgment notwithstanding the verdict or new trial is reversible error.\\nAppellant in essence claims that the \\\"informed consent\\\" doctrine is not a subset of the generic concept of \\\"medical malpractice.\\\" Judge Buckalew's jury instruction # 12 mandated, inter alia, a defense verdict if the jury found no medical malpractice. Appellant claims that this prevented the jury from ever reaching the issue of informed consent and thus constituted reversible error.\\nAppellant's argument on this point is not persuasive. None of the authority which he cites holds that \\\"informed consent\\\" is not an issue in medical malpractice. And, as one court has noted:\\n\\\"The . . . issue for the jury to determine should be whether treatment was given with the informed consent of the patient, and if it was not, the physician . is gtdlty of malpractice no matter how skillfully the treatment may have been administered . .\\\" Natanson v. Kline, 186 Kan. 393, 350 P.2d 1093, 1107 (1960) (emphasis added).\\nEven if the semantic distinction between informed consent and malpractice were not as infirm as it appears to be, appellant's position would still be untenable. He cites several cases holding that faulty formulary instructions cannot be corrected by other instructions. But he fails to cite the numerous Alaska cases which hold jury instructions, when read in their entirety, to be non-reversible. See ERA Helicopters, Inc. v. Digicon Alaska, Inc., 518 P.2d 1057, 1059 (Alaska 1974); Breitkreutz v. Baker, 514 P.2d 17, 27 (Alaska 1973); National Bank of Alaska v. McHugh, 416 P.2d 239 (Alaska 1966); Mitchell v. Knight, 394 P.2d 892 (Alaska 1964). In the case at bar the superior court specifically gave two separate instructions on informed consent. Even more significant is the particular language in the very instruction about which appellant complains. In the first part of the instruction the judge summarized the issues in this case. He stated that plaintiff had alleged negligent medical practice in several respects including the failure to obtain informed consent. Thus, even if informed consent gives rise to a different type of liability than malpractice, the in-stuction rendered that difference immaterial. No harm was done to appellant, and his claim of error on this point must'be rejected.\\nThe next question raised by appellant concerns the proper standards and elements of \\\"informed consent.\\\" It is noteworthy that appellant does not claim any error in instructions on this point.\\nAppellant correctly states that the issue of \\\"informed consent\\\" is one of first impression in Alaska. The only law expounded in Patrick v. Sedwick, 391 P.2d 453 (Alaska 1964), is the seemingly undisputed principle that proximate cause must be shown in order to recover for lack of informed consent. This requires evidence that \\\"plaintiff would have declined the [procedure] \\\" if adequately informed. Patrick v. Sedwick, supra, at 458.\\nAppellant sets forth Dr. Zartman's testimony at his deposition. In that deposition, Zartman stated, inter alia,\\n\\\" . . . I told [the father] that in order to save the baby's life we would have to use oxygen, and I said it was actually a risk, that the baby might be blind, but . it was . academic . . . as to whether one had a live, blind baby or a baby who was dead, and the father agreed completely with my decision\\nAt trial, Poulin denied that' Zart-man had informed him of the risk of blindness. This conflicting testimony presented a valid jury question which cannot be overturned on appeal. But appellant urges that even if Zartman did advise the father of the risk of blindness, the failure to discuss the availability of an \\\"alternative therapy\\\", i.e., titration, was a prima facie material omission justifying a judgment notwithstanding the verdict or new trial.\\nWe need not reach the difficult and complex questions which the briefs raise regarding the duty and scope of disclosure required by the informed consent doctrine. This is because the evidence at trial failed to establish the proximate cause element which is required in any claim based upon lack of informed consent. Specifically, Poulin was asked whether he would have consented to the procedure of titration had he known about it. Although Poulin indicated that he would have consented to the administration of the alternative procedure, he conceivably could have consented to both procedures, leaving the final choice to the doctor. The record fails to establish that, had he known of the alternative, he would have declined the procedure which was employed. Patrick v. Sedwick, supra, 391 P.2d at 458. Therefore, appellant's claim of error is overruled, as proximate causation was not proven at trial.\\nVI. CONCLUSION\\nIn summary we conclude that, with one exception, the trial court's rulings were either not erroneous or were harmless error. However, the failure to give any instruction to clarify and distinguish the duty of supervision from the duties regarding proper methodology and informed consent was reversible error.\\nIt is the recognized rule that when an issue requiring reversal is fairly separable from the other issues involved in the case, we may grant a partial new trial, setting aside only so much of the judgment as is affected by error. The balance of the judgment may remain intact. Corridon v. City of Bayonne, 129 N.J.Super. 393, 324 A.2d 42, 45 (1974); Terminal Const. Corp. v. Bergen County Hackensack River Sanitary Sewer Dist. Authority, 18 N.J. 294, 113 A.2d 787, 812 (1955). Whether the issue requiring reversal is fairly separable from the other issues adjudicated in the trial court depends upon our view of the facts and circumstances of each case. Gyerman v. United States Lines Co., 7 Cal.3d 488, 498 P.2d 1043, 1054, 102 Cal.Rptr. 795 (1972). We have applied these principles in other cases on appeal. City of Fairbanks v. Nesbett, 432 P.2d 607, 613 (Alaska 1967); State v. Stanley, 509 P.2d 279 (Alaska 1973).\\nIt is noteworthy that the court in Toth v. Community Hospital, supra, considered the duty of supervision to be sufficiently distinct from the other malpractice questions presented there that new trial was ordered only as to the duty of supervision issue, the balance of the judgment in favor of the physician remaining intact.\\nWe are of the same view in the case at bar. Consequently, we hold that the issues of methodology and informed consent may not be retried, but a new trial regarding the issue of proper supervision is required. Because of our disposition of the case, we need not reach the question of costs and attorneys' fees which Dr. Zart-man raises in his cross-appeal.\\nAffirmed in part, reversed, in part, and remanded for proceedings consistent with this opinion.\\nERWIN, BOOCHEVER and BURKE, JJ., not participating.\\n. E. g., Dr. David Abramson, Chief of the Division of Newborn Medicine Neonatology, Georgetown University Hospital; Dr. Leonard Krassner, a practitioner and teacher of pediatrics at Yale University School of Medicine; Nurse Jeryl Gagliardi, a clinical specialist in the newborn special case unit at Yale New Haven Medical Center.\\n. E. g., Dr. Charles Barlow, professor of neurology at the Children's Hospital Medical Center of Harvard Medical School; Dr. Thomas Oliver, Chairman of the Department of Pediatrics at the University of Pittsburg and medical director of Children's Hospital in Pittsburg; Dr. Robert Polley, a pediatrician and faculty member at the University of Washington Medical School.\\n. Some of defendant's witnesses actually regarded \\\"titration\\\" as dangerous under the circumstances.\\n. Atmospheric oxygen concentration is the percentage of oxygen in the air. It is not strictly correlated to oxygen liter flow, through there is apparently some rough correlation. In turn, concentration does not necessarily reflect the amount of oxygen actually in the blood stream. A baby experiencing severe respiratory problems might not be able to absorb the oxygen at all. Today the amount of oxygen in the blood stream can be measured. However, in 1968, this sophisticated monitoring was not possible.\\n. During this period Dr. Zartman did not attend the baby at all. Approximately 21 hours after the flow was reduced to 4, Drs. Peterson and Tower did visit the child. No reduction of flow was ordered despite an apparent absence of cyanosis. About 22 hours after their visit (at 1:15 p. m. on February 16, 1968), Dr. Zartman re-examined the child and ordered a weaning from all oxygen.\\n. Dr. Zartman does not directly dispute the contention that 40 percent concentration should be exceeded only when symptoms call for it. Instead, he stresses that the 40 percent figure is a rough rule of thumb and fails to take into account the assimilative capacity of the patient. Thus, he concludes, \\\"many babies require much higher environmental concentrations than 40 percent.\\\"\\n. \\\"The fact that Patricia Poulin did not seek prenatal care j)rior to the day on which Courtney Poulin was born is irrelevant on the question of defendant's negligence or whether or not defendant breached his duty of disclosure.\\\"\\n. This comports with Civil Rule 43(b), which favors the admissibility of evidence in the absence of a clear rule to the contrary.\\n. See, e. g., Kartsfield v. Carolina Casualty Insurance Co., 451 P.2d 576, 578 (Alaska 1969) ; Mitchell v. Knight, 394 P.2d 892, 896 (Alaska 1964). See generally, C. McCormick, Evidence \\u00a7 185, at 434 (2d ed. 1972).\\n. Appellee argues that testimony by one of plaintiff's own experts did establish such a link. However, our review of the cited trans-script shows no correlation to blindness or brain disease and the witness (Nurse Jeryl Gagliardi) concludes that \\\"lack of prenatal care, per se, probably doesn't have as much to do with it.\\\"\\n. Compare Civil Rule 61:\\n\\\"No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.\\\" (emphasis added)\\nwith Criminal Rule 47 (a) :\\n\\\"(a) Harmless Error. Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.\\\" (emphasis added)\\n. Cf. In re Cornelius, 620 P.2d 76, 84 (Alaska 1974), applying the criminal \\\"harmless error\\\" test to a review of a disbarment proceeding.\\n.Civil Rule 43(g) (11) provides:\\n\\\"A witness may be impeached by the party against whom he was called by contradictory evidence, or by evidence that his general reputation for truth is bad, or that his moral character is such as to render him unworthy of belief. He may not be impeached by evidence of particular wrongful acts, except that it may be shown by the examination of the witness or the record of a judgment that he has been convicted of a crime.\\\" (emphasis added)\\n. Accord, People v. Lane, 21 Mich.App. 185, 175 N.W.2d 313, 314 (1970).\\n. Civil Rule 43(b) provides :\\n\\\"(b) Form and Admissibility. In all trials the testimony of witnesses shall be taken orally in open court, unless otherwise provided by these rules. The admissibility of evidence shall be governed by these rules, or in the absence of rule, by the principles of common law as they may be interpreted by the courts of the state in the light of reason and experience. In the absence of rule, the evidence shall be presented according to the most convenient method prescribed by common law principles, and the principle which favors the reception of the evidence shall govern. The competency and privileges of witnesses shall be governed by these rules, or in the absence of rule, by common law principles.'' (emphasis added)\\n. See e. g., Jakoski v. Holland, 520 P.2d 569, 573-75 (Alaska 1974); Howard v. State, 491 P.2d 154 (Alaska 1971); Veal v. Newlin, Inc., 367 P.2d 155 (Alaska 1961).\\n. See e. g., Davis v. Chism, 513 P.2d 475 (Alaska 1973); Bakken v. State, 489 P.2d 120 (Alaska 1971).\\n. Eubanks v. State, 516 P.2d 726 (Alaska 1973).\\n. See, e. g., Stickel v. San Diego Electric Ry. Co., 32 Cal.2d 157, 195 P.2d 416 (1948); Fugate v. Sears, Roebuck & Co., 12 Ill.App.3d 656, 299 N.E.2d 108 (1973); Warren v. Hynes, 4 Wash.2d 128, 102 P.2d. 691 (1940).\\n. Compare Rose v. B. L. Cartage Company, 110 Ill.App.2d 260, 249 N.E.2d 199 (1969).\\n. See Instructions 10, 21, 25A, 26, 27, 28, 29 and 30.\\n. See West v. State, 409 P.2d 847, 852 (Alaska 1966).\\n. Compare Womble v. J. C. Penney Co., 47 F.R.D. 350 (E.D.Tenn.1969), aff'd 431 F.2d 985 (6th Cir. 1970), which suggests that in that district any affidavit would be improper unless the judge's consent were obtained first.\\n. \\\"Plaintiff's motions for judgment notwithstanding the verdict and for new trial, the grounds asserted therefore, and the memo-randa and affidavits submitted in support and opposition to the motions have been fully examined and considered.\\\"\\n. McDonald v. Pless, 238 U.S. 264, 35 S.Ct. 783, 59 L.Ed. 1300 (1915); Stein v. New York, 346 U.S. 156, 73 S.Ct. 1077, 97 L.Ed. 1522 (1953) (dictum).\\n. See Goff v. Kinzle, 148 Mont. 61, 417 P.2d 105 (1966); Hinton v. Gallagher, 190 Va. 421, 57 S.E.2d 131 (1950); Gardner v. Malone, 60 Wash.2d 836, 376 P.2d 651 (1962).\\n. Shipley v. Permanente Hospital, 127 Cal.App.2d 417, 274 P.2d 53 (1954).\\n. Eeduced to their essence, the affidavits in the present case state that the jury would have rendered a verdict for Poulin (at one point the vote was allegedly 11-1 finding Dr. Zartman negligent), but for the fact that the jury was uncertain as to whether they could award less damages than the amount prayed for, disliked the parents, felt that Courtney would be adequately provided for by state aid, and did not want the lawyers and parents to be the primary beneficiaries of the award.\\n. See, e. g., Hogg v. Washington National Insurance Co., 503 S.W.2d 325, 330 (Tex.Civ.App.1973).\\n. See also Kimble v. State, 539 P.2d 73 (Alaska 1975); Martinez v. Bullock, 535 P.2d 1200 (Alaska 1975); Gafford v. State, 440 P.2d 405 (Alaska 1968); West v. State, 409 P.2d 847, 852 (Alaska 1966).\\n. See Annot., 4 A.L.R.2d 761, 767-773 (1949), Later Case Service 489-539 (1971), 31-34 (Supp.1974).\\n. C. McCormick, Evidence \\u00a7 201, at 479-83 (2d ed. 1972).\\n. Id.\\n. The cases which the parties cited are distinguishable as follows: Aydlett v. Haines, 511 P.2d 1311 (Alaska 1973), raised the issue of insurance in dictum and in the context of a discussion on the \\\"collateral source\\\" rule; Ridgeway v. North Star Terminal & Stevedoring Co., 378 P.2d 647 (Alaska 1963), also concerned the \\\"collateral source\\\" rule; Mallonee v. Finch, 413 P.2d 159 (Alaska 1966), upheld the trial court's exclusion of an opponent's admission which was inextricably bound with references to insurance. This court concluded, inter alia, that the exclusion was harmless. In Bertram v. Harris, 423 P.2d 909 (Alaska 1967), where the trial court did what appellant seems to urge, i. e., cautioned the jury to disregard testimony which had been elicited on insurance, this court affirmed.\\n. McCormick himself notes that \\\"the trial judge's discretionary power could still be invoked\\\" if prejudice outweighed the need. McCormick, Evidence \\u00a7 201, at 480 (2d. ed. 1972).\\n. See e. g., C. McCormick, Evidence \\u00a7 296, at 621 (1954); VI J. Wigmore, Evidence \\u00a7 1692 (3rd ed. 1940). See also, Note, Admissibility of Medical Books in Iowa: Expert Witnesses in Hardback Covers, 56 Iowa L. Rev. 1028, 1043 (1971); Note, Medical Treatises as Evidence in Court and in Workmen's Compensation Proceedings, 52 Cornell L.Rev. 316, 322-23 (1967); Comment, Learned Treatises as Direct Evidence: The Alabama Experience, 1967 Duke L.J. 1169 (1967); Recent Developments, 66 Mich.L.Rev. 183, 191-92 (1967).\\n. Alabama allows medical treatises as tlie result of case law. Kansas, Massachusetts and Nevada have allowed this by statute. The Canal Zone and the Virgin Islands also have enacted statutes which adopt a position similar to appellant's. See VI ,1. Wigmore, Evidence \\u00a7 1693 nn. 1 & 2 (3rd ed. 1940 & Supp.).\\n. Alaska has no such doctrine and, in fact, AS 09.55.550 specifically rules out any presumptions of negligence in malpractice cases.\\n. See AS 09.55.540.\\n. These are Massachusetts, New York, Illinois, California and Alaska.\\n. Requested Instruction # 15 provided as follows:\\n\\\"A physician may be possessed with a greater degree of skill, knowledge or intelligence than other physicians practicing in the same specialty in similar communities. In such a case the physician is required to use whatever superior knowledge, skill and intelligence he has and the failure to do so will render him liable for injury to the patient.\\\" (emphasis added)\\n. Requested Instruction # 7 provided as follows :\\n\\\"You are instructed that the degree of knowledge or skill exercised by pediatricians certified as such by the American Academy of Pediatrics is not subject to variation on a geographical basis in this country. Therefore, on the question of the defendant's skill or knowledge, no allowance should be made for the type of community in which he carries on his practice.\\\" (emphasis added)\\n. See generally, Vol. 16 No. 3 Ass'n of Trial Lawyers of America, News Letter 107 (April 1973); D. Louisell & H. Williams, Medical Malpractice \\u00b6 8.06 (1973 & 1973 Supp.); Prosser, Torts \\u00a7 32, 161 (4th ed. 1971); Annot., 21 A.L.R.3d 953 (1968 & 1973 Supp.); Note, An Evaluation of Changes in Medical Standard of Care, 23 Vand.L.Rev. 729 (1970); Waltz, The Rise and Gradual Fall of the Locality Rule in Medical Malpractice Litigation, 18 DePaul L.Rev. 408 (1969); Perdue, The Law of Texas Medical Malpractice: Standard of Care, 11 Houston L.Rev. 22 (1973); Kroll, The Etiology, Pulse and Prognosis of Medical Malpractice, 8 Suffolk L.Rev. 598 (1974); King & Coe, The Wisdom of the Strict Locality Rule, 3 Baltimore L. Rev. 221 (1974).\\n. Gandara v. Wilson, 85 N.M. 161, 509 P.2d 1356 (1973).\\n. Basically the states have taken one of three positions on this issue. The oldest view was the strict locality rule. Under that rule the doctor was held to the standards of the reasonable doctor in that locality only. This view presents many problems, e. g., the town with only one doctor, and the majority of states appear to have adopted the \\\"similar communities\\\" test. An increasing number of states have moved beyond that and have abandoned or reduced the role of geographic locality altogether. Appellant cites several of these cases in his brief.\\n. Naccarato v. Grob, 384 Mich. 248, 180 N.W.2d 788, 791 (1970).\\n. Massachusetts, New Jersey, Iowa, West Virginia, Arizona and Washington. Two states not cited by appellant also appear to endorse his viewpoint. See, e. g., Naccarato v. Grob, 384 Mich. 248, 180 N.W.2d 788, 791 (1970), and Karp v. Cooley, 493 F.2d 408 (5th Cir. 1974).\\nW. Prosser, Torts \\u00a7 32, at 161 (4th ed. 1971).\\n. Id. at n. 30.\\n. The Bru\\u00f1e court points out that New Bed-ford, scene of the alleged malpractice, was a mere 50 miles from Boston. 235 N.E.2d at 798. The McGulpen court noted that Davenport, Iowa, is only 3 to 4 car hours from Chicago. 43 N.W.2d at 127.\\n. Instruction 18 and supplemental instruction 8.\\n. 239 N.E.2d at 375 (Bergan, ,J. Dissenting).\\n. Alexander, Jury Instructions on Medical Issues, 4-23, at 307 (1966).\\n. See also Shetter v. Rochell, 2 Ariz.App. 358, 409 P.2d 74, 83 (1965); Comment, Valid Consent to Medical Treatment: Need the Patient Know?, 4 Duq.L.Rev. 450, 453 (1966).\\n. Instruction No. 12 reads as follows:\\n\\\"The plaintiff claims that defendant Zart-man failed to comply with the proper standard of medical practice and was therefore negligent in one or more of the following respects:\\n1. That as a result of administration of oxygen under the direction and supervision of the defendant the plaintiff developed retrolental fibroplasia causing her to become blind.\\n2. The defendant failed to perform all indicated blood tests which the clinical signs of the plaintiff required and the failure to so act resulted in damage to the plaintiff's central nervous system.\\n3. The administration of oxygen and/or the failure to obtain appropriate blood tests for tlie plaintiff was done without the consent of Wilfred Poulin and/or Patricia Poulin, the parents of the minor plaintiff. Plaintiff also claims that the defendant's conduct was the proximate cause of the injuries to Courtney Poulin.\\nDefendant Zartman denies these claims or allegations.\\nThe foregoing is merely a summary of the claims of the parties, and has been given to you solely to aid you in understanding the issues. It is for you to decide, from all of the evidence in the case, whether any of these claims have been proven.\\nConsequently, the issues to be determined by you in this case are these:\\nFirst: Is the defendant liable for medical malpractice? If your answer to that question is \\\"no\\\", you will return a verdict for the defendant. If your answer is \\\"yes\\\", you will have a second issue to determine, namely : Was such malpractice a proximate cause of any injury to the plaintiff?\\nIf your answer to that question is \\\"no\\\", plaintiff is not entitled to recover, but if your answer to \\\"yes\\\", you will then find what damage plaintiff thus has been caused to suffer, and you will return a verdict in her favor for the amount thereof.\\\"\\nFirst: Is the defendant liable for medical malpractice? If your answer to that question is \\\"no\\\", you will return a verdict for the defendant. If your answer is \\\"yes\\\", you will have a second issue to determine, namely: Was such malpractice a proximate cause of any injury to the plaintiff?\\nIf your answer to that question is \\\"no\\\", plaintiff is not entitled to recover, but if your answer is \\\"yes\\\", you will then find what damage plaintiff thus has been caused to suffer, and you will return a verdict in her favor for the amount thereof.\\\"\\n. The trial court's instruction # 22 stated in essence that there must be a reasonable disclosure of all significant facts necessary for an intelligent and informed consent. Such disclosure should include available choices of treatment and material risks inherent in each choice. Failure to perform this disclosure duty renders the doctor liable for injuries proximately resulting therefrom.\\n. See, e. g., Canterbury v. Spence, 150 U.S.App.D.C. 263, 464 F.2d 772, 790 (1972); Cobb v. Grant, 8 Cal.3d 229, 502 P.2d 1, 11, 104 Cal.Rptr. 505 (1972).\"}"
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+"{\"id\": \"10462693\", \"name\": \"STATE of Alaska, Appellant, v. Al TRUNNEL, Jr., Appellee\", \"name_abbreviation\": \"State v. Trunnel\", \"decision_date\": \"1976-05-07\", \"docket_number\": \"No. 2637\", \"first_page\": \"550\", \"last_page\": \"553\", \"citations\": \"549 P.2d 550\", \"volume\": \"549\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T18:47:26.628215+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before BOOCHEVER, Chief Justice, and RABINOWITZ, CONNOR, ERWIN and BURKE, Justices.\", \"parties\": \"STATE of Alaska, Appellant, v. Al TRUNNEL, Jr., Appellee.\", \"head_matter\": \"STATE of Alaska, Appellant, v. Al TRUNNEL, Jr., Appellee.\\nNo. 2637.\\nSupreme Court of Alaska.\\nMay 7, 1976.\\nStephen G. Dunning, Asst. Dist. Atty., Joseph D. Balfe, Dist. Atty., Anchorage, and Avrum M. Gross, Atty. Gen., Juneau, for appellant.\\nWilliam H. Fuld, Kay, Christie, Fuld & Saville, Anchorage, for appellee.\\nBefore BOOCHEVER, Chief Justice, and RABINOWITZ, CONNOR, ERWIN and BURKE, Justices.\", \"word_count\": \"1873\", \"char_count\": \"11294\", \"text\": \"OPINION\\nBOOCHEVER, Chief Justice.\\nIn this appeal, the State of Alaska seeks our expression of disapproval of the sentences imposed on Mr. Trunnel as being too lenient.\\nAppellee A1 Trunnel, Jr. was convicted upon his plea of nolo contendere to two counts of possession of narcotics and was originally sentenced to ten years imprisonment on each count, to run concurrently. On appeal, this court affirmed his conviction. Trunnel v. State, 535 P.2d 1041 (Alaska 1975). The defendant thereupon filed a timely motion to reduce his sentences under Alaska Rule of Criminal Procedure 35 (a). On July 11, 1975, the superior court reduced Trunnel's sentences by suspending five years of each ten-year sentence, and the State filed a timely notice of sentence appeal.\\nWe first consider the question of whether a sentence appeal may be taken from an order granting or denying a motion to modify sentence under Alaska Rule of Criminal Procedure 35(a). Alaska Rule of Appellate Procedure 21(b) provides:\\nWritten notice of appeal from a sentence of the superior court by the state, or by a defendant appealing solely on the ground that the sentence is excessive, shall be filed with the clerk of the superior court which imposed the sentence not later than 30 days after sentence was imposed.\\nA sentence is \\\"imposed\\\" at the time it is first announced upon the record by the court.\\n\\\"Imposed\\\" is defined to mean, \\\"to lay on,\\\" and \\\"imposition\\\" is \\\"a placing, putting or laying on\\\" . . . . The imposition of sentence means laying the sentence upon the defendant, that is, the act of sentencing him . .\\nKriebel v. United States, 10 F.2d 762, 764 (7th Cir. 1926).\\nWhen a motion to reduce sentence under Criminal Rule 35(a) is granted, the court in effect vacates the sentence previously imposed upon the defendant and announces a new, lesser sentence. This fits the definition of \\\"imposing\\\" a sentence, and a sentence appeal would lie under the relevant statutes and rules. We therefore hold that the State may appeal a sentence when it is modified by the superior court.\\nAs we have frequently stated, our standard of review on a sentence appeal is to determine whether the trial court's imposition of sentence was clearly mistaken. With this standard in mind, we have examined Trunnel's sentences.\\nThe State contends that concurrent ten-year sentences with five years suspended from each do not meet the proper goals of a criminal sentence, outlined by this court in State v. Chaney, 477 P.2d 441, 444 (Alaska 1970), because the sentences do not sufficiently isolate Trunnel, deter him or others from similar crimes, reaffirm societal norms, nor are the sentences likely to accomplish rehabilitation of Mr. Trunnel.\\nThe pre-sentence report in this case indicates the following: Trunnel is a 48-year-old black who finished the eleventh grade and was married once, briefly. He has a spotty history of legitimate employment and admits that his major source of income for many years has been gambling. Trunnel stated that he is not addicted to narcotics. At the time of the offenses at issue here, he was operating an \\\"after hours\\\" social club.\\nTrunnel's criminal history shows two prior convictions for burglary in 1948 and 1949 when he was 21 and 22 years old. He received three years probation for \\\"Suspicion of Possession of Narcotic Drugs Other than Marijuana\\\" in 1962, and six months imprisonment with a $250.00 fine for \\\"Illegal Possession of Hypnotic Drugs\\\", which he described as diet pills, in 1964. Since 1964, his only convictions have been for traffic violations and gambling offenses.\\nIn relating the length of sentence imposed to the seriousness of a drug offense, we are guided by our decision in Waters v. State, 483 P.2d 199, 201 (Alaska 1971). There we recommended that sentencing judges take into account four groups of drug offenders whose crimes are in the following descending order of seriousness:\\n1. Smuggling or sale of large quantities of narcotics or possession of large quantities for sale.\\n2. Smuggling or sale of small quantities of narcotics, or possession of small quantities for sale.\\n3. Possession of narcotics without intent to sell.\\n4. Marijuana offenses.\\nThe offense for which Trunnel was convicted does not place him within the two most serious categories of drug offenders: the large and small dealers. Instead, he falls into the third category: offenders convicted for possession without intent to sell. The State suggests that Trunnel is a \\\"major\\\" drug dealer in Anchorage. Although there was evidence at the sentencing hearings that some of his associates may have used the premises or out-buildings of the club to hide narcotic drugs and engage in drug dealings, there was no evidence of a type which could be considered in sentencing that Trunnel himself was a drug dealer.\\nWe do not have before us the question of whether the original ten-year sentences with no time suspended were appropriate, but whether the trial court was clearly mistaken in imposing the modified sentences. We reiterate our agreement with the American Bar Association's statement that maximum prison terms ought not to exceed five years except for cases involving particularly serious crimes.\\nWe also agree with the State that Mr. Trunnel deserves substantial sentences in view of his current conviction of two narcotics offenses and his history of unlawful activities. We believe that concurrent ten-year sentences with five years suspended from each are substantial. Such sentences should serve both to deter the appellee and other drug offenders and to reaffirm societal norms while at the same time allowing for rehabilitation of Mr. Trunnel. We therefore hold that the trial court was not clearly mistaken in modifying the sentence.\\nAFFIRMED.\\n. AS 12.55.120(b) provides:\\nA sentence of imprisonment lawfully imposed by the superior court may be appealed to the supreme court by the state on the ground that the sentence is too lenient; however, when a sentence is ap pealed by the state and the defendant has not appealed the sentence, the court is not authorized to increase the sentence but may express its approval or disapproval of the sentence and its reasons in a written opinion.\\nA1 Trunnel has not appealed the sentence imposed by the superior court.\\n. Alaska Rule of Criminal Procedure 35(a) states:\\nThe court may correct an illegal sentence at any time. The court may reduce a sentence within 60 days after the sentence is imposed, or within 60 days after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of the appeal, or within 60 days after receipt of an order of the supreme court of the state or of the United States denying an application for relief.\\n. See Corey v. United States, 375 U.S. 169, 84 S.Ct. 298, 11 L.Ed.2d 229 (1963); United States v. Behrens, 375 U.S. 162, 84 S.Ct. 295, 11 L.Ed.2d 224 (1963); Farries v. United States, 439 F.2d 781 (3rd Cir. 1971). These cases hold that reduction of a maximum sentence as provided by 18 U.S.C. \\u00a7 4208(b) (judge sentences first for maximum term and then awaits study by Bureau of Prisons before deciding whether to reduce sentence) is an imposition of sentence from which an appeal can be taken.\\n. State v. Lancaster, Opn. No. 1247 n. 13 (Alaska, March 8, 1976); Perrin v. State, 543 P.2d 413, 415 (Alaska 1975); Bradley v. State, 535 P.2d 1031, 1032 (Alaska 1975); Smith v. State, 531 P.2d 1273, 1276 (Alaska 1975).\\n. The State argues that the original ten-year sentence without suspended time was proper in Trunnel's ease because\\nit is at least very likely, if not conclusively proven, that he falls within the most serious category of drug offenders [as denominated in the case of Waters v. State, 483 P.2d 199, 201 (Alaska 1971)].\\n. We have often condemned reliance on previous \\\"contacts\\\" with the police as well as other offenses for which guilt has not been established. Burleson v. State, 543 P.2d 1195, 1203 (Alaska 1975) ; Griggs v. State, 494 P.2d 795, 798 (Alaska 1972) ; Robinson v. State, 492 P.2d 106, 107 (Alaska 1971) ; Peterson v. State, 487 P.2d 682, 683 n. 1 (Alaska 1971) ; Galaktionoff v. State, 486 P.2d 919, 924 (Alaska 1971) ; Robinson v. State, 484 P.2d 686, 690 n. 11 (Alaska 1971) ; Waters v. State, 483 P.2d 199, 202-03 (Alaska 1971).\\n.American Bar Association Standards for Criminal Justice, Standards Relating to Sentencing Alternatives and Procedures. Standard 2.1(b) at 13-14 (approved draft 1968). Donlun v. State, 527 P.2d 472, 475 (Alaska 1974). In the context of drug offenses, see, for example, McClain v. State, 519 P.2d 811 (Alaska 1974) (sentence of four years for one count of manufacturing and one of selling heroin affirmed) ; Daygee v. State, 514 P.2d 1159 (Alaska 1973) (four-year sentence affirmed for possession of a large quantity of marijuana for sale) ; Nickerson v. State, 492 P.2d 118 (Alaska 1971) (sentence of eight years with four suspended for possession and sale of heroin affirmed) ; Nicholas v. State, 477 P.2d 447 (Alaska 1970) (sentence of two years for sale of marijuana affirmed). For a complete study of drug offense sentence review in Alaska, see It. Erwin, Five Tears of Sentence Review in Alaska, 5 TJ.C.L.A.\\u2014 Alaska L.Rev. 1, 11-12, Table III (1975). We have reviewed the sentence in only one other drug case which involved possession and not sale of narcotics, as is true in the instant case. In Whitton v. State, 533 P.2d 266 (Alaska 1975), we approved a ten-year sentence for possession because of aggravating circumstances: the defendant's fourteen previous convictions for other crimes.\\n. State v. Chaney, 477 P.2d 441, 444 (Alaska 1970).\\n. AS 12.55.075(a)(2) requires the court at the time of imposing sentence to prepare a sentencing report including \\\"the reasons for selecting the particular sentence imposed\\\". As stated in this opinion, when a court in effect vacates the sentence previously imposed upon the defendant and announces a new, lesser sentence, he is \\\"imposing\\\" a sentence. AS 12.55.075(a)(2) therefore becomes applicable.\\nThe superior court judge in imposing the revised sentence referred to the briefs and memoranda submitted to the trial court but only specified as reasons for the reduced sentence the fact that between the date of the indictment in 1973 and the date of sentencing, July 11, 1975, the defendant was not involved in violations of a statute, and that when he was allowed to leave the state to attend a funeral in his family, he returned within the period of time allotted to him. The court also indicated a review of the second sentencing hearing but does not state additional reasons derived from such a review which led to the sentence reduction. Since we find that the court in imposing the reduced sentence was not clearly mistaken, we have not elected to remand this case. In future cases, full and explicit reasons should be set forth for imposing a sentence or reduction thereof.\"}"
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+"{\"id\": \"10463053\", \"name\": \"Eileen Marie MILLER, wife, Michael Paul Miller, son, and Valerie Ann Merriman, stepchild of David Eugene Miller (Deceased), Appellants, v. ITT ARCTIC SERVICES, Liberty Mutual Insurance Company, and Alaska Pacific Assurance Company, Appellees; ITT ARCTIC SERVICES, Liberty Mutual Insurance Company, and Alaska Pacific Assurance Company, Cross-Appellants, v. Eileen Marie MILLER, wife, Michael Paul Miller, son, and Valerie Ann Merriman, stepchild of David Eugene Miller (Deceased), Cross-Appellee\", \"name_abbreviation\": \"Miller v. ITT Arctic Services\", \"decision_date\": \"1978-04-21\", \"docket_number\": \"Nos. 3311 and 3312\", \"first_page\": \"1044\", \"last_page\": \"1049\", \"citations\": \"577 P.2d 1044\", \"volume\": \"577\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T22:12:20.787142+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before BOOCHEVER, Chief Justice, and RABINOWITZ, CONNOR, BURKE and MATTHEWS, Justices.\", \"parties\": \"Eileen Marie MILLER, wife, Michael Paul Miller, son, and Valerie Ann Merriman, stepchild of David Eugene Miller (Deceased), Appellants, v. ITT ARCTIC SERVICES, Liberty Mutual Insurance Company, and Alaska Pacific Assurance Company, Appellees. ITT ARCTIC SERVICES, Liberty Mutual Insurance Company, and Alaska Pacific Assurance Company, Cross-Appellants, v. Eileen Marie MILLER, wife, Michael Paul Miller, son, and Valerie Ann Merriman, stepchild of David Eugene Miller (Deceased), Cross-Appellee.\", \"head_matter\": \"Eileen Marie MILLER, wife, Michael Paul Miller, son, and Valerie Ann Merriman, stepchild of David Eugene Miller (Deceased), Appellants, v. ITT ARCTIC SERVICES, Liberty Mutual Insurance Company, and Alaska Pacific Assurance Company, Appellees. ITT ARCTIC SERVICES, Liberty Mutual Insurance Company, and Alaska Pacific Assurance Company, Cross-Appellants, v. Eileen Marie MILLER, wife, Michael Paul Miller, son, and Valerie Ann Merriman, stepchild of David Eugene Miller (Deceased), Cross-Appellee.\\nNos. 3311 and 3312.\\nSupreme Court of Alaska.\\nApril 21, 1978.\\nRobert N. Opland, Opland, Johnston & Arnett, Anchorage, for appellants.\\nRobert L. Eastaugh, Delaney, Wiles, Moore, Hayes & Reitman, Inc. and Michael G. Briggs, Ely, Guess & Rudd, Anchorage, for appellees.\\nBefore BOOCHEVER, Chief Justice, and RABINOWITZ, CONNOR, BURKE and MATTHEWS, Justices.\", \"word_count\": \"3200\", \"char_count\": \"20396\", \"text\": \"OPINION\\nRABINOWITZ, Justice.\\nThis appeal arises out of the denial of benefits to the survivors of David Eugene Miller by the Alaska Workmen's Compensation Board. The superior court upheld the Board's determination. We affirm.\\nDavid E. Miller collapsed on January 20, 1975, while employed by ITT Arctic Services on a project at Fort Wainwright near Fairbanks; he died at a nearby hospital within one and one-half hours of being stricken. Miller had been making \\\"cross connections\\\" for communications circuitry on the third floor of a building. Although testimony of witnesses before the Board is not entirely in agreement regarding details of the day's work, it appears that Miller had been doing primarily fine hand work for nine or ten hours \\u2014 making electrical connections and wrapping the wires around terminals with an electric \\\"gun\\\" weighing a pound or less. No heavy lifting or other vigorous exertion was involved. At about 5:15 p. m., the crew cleaned up the area, carried tools or other items down the 44 steps of the building, and loaded them into a pickup truck. One of Miller's co-workers testified that Miller made two or three trips down the stairs with boxes of equipment and materials and that Miller last carried a box of spare iron parts from the \\\"cable rack.\\\" The \\\"nonworking foreman\\\" for the job testified that Miller made only one trip from the third floor to the pickup \\u2014 carrying his toolbox weighing 30-35 pounds. Miller lifted the box onto the tailgate of the pickup and immediately slumped over the box. He was carried back inside the building by the other members of the crew and subsequently was taken by ambulance to Bassett Army Hospital at Fort Wainwright where he died.\\nMiller's widow, son and stepdaughter filed a claim for workmen's compensation benefits, and a hearing was held before the Alaska Workmen's Compensation Board. The Board concluded that Miller's death was due to intracerebral bleeding \\u2014 the direct result of a ruptured berry aneurysm in his brain. The Board determined that although Miller was in the course of his employment when the aneurysm ruptured, the rupture was not caused by his employment. The Board heard lay and expert testimony which it determined was sufficient to overcome Alaska's statutory presumption of compensability. The Board concluded that, once the presumption had disappeared, the applicants failed to bear their burden of showing a connection between Miller's death and his employment.\\nIn deciding that the presumption of com-pensability had been rebutted, the Board relied upon testimony of Miller's co-worker and foreman that the work performed by Miller on the day of his death required virtually no physical exertion and that the only exertion immediately prior to his attack was carrying a tool box downstairs. In addition, the Board viewed the medical evidence as indicating \\\"that aneurysms rupture spontaneously and at random times around the clock.\\\"\\nMiller's survivors appealed the decision of the Alaska Workmen's Compensation Board, and the superior court affirmed. This appeal followed.\\nMiller's survivors contend that the statutory presumption of compensability was not overcome because no substantial evidence was introduced to show that Miller's death was not work-connected. They also argue for application of the rule that doubts as to the substance of medical testimony must be resolved in favor of claimants; and with respect to testimony in the case at bar, this rule requires the conclusion that no substantial evidence was introduced to overcome the presumption of compensability.\\nThe Alaska Workmen's Compensation Act contains a presumption that an injury is work-connected in the absence of substantial evidence to the contrary. Once substantial evidence is introduced, the presumption drops out and the burden of proving all elements of the claim falls on the claimant. This court has consistently defined \\\"substantial evidence\\\" as \\\"such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.\\\" Evidence which is competent or admissible may nevertheless be insufficient to overcome the presumption of compensability; the question whether, the quantum of evidence is substantial is a legal question.\\nIn Fireman's Fund American Insurance Cos. v. Gomes, 544 P.2d 1013 (Alaska 1976) (unexplained murder of bartender at his place of employment), we explained two possible ways of overcoming the presumption of compensability: (1) by affirmative evidence showing that the death was not work-connected, or (2) by eliminating all reasonable possibilities that the death was work-connected. In Gomes, no affirmative evidence was produced to show that Gomes' death was due to non-work-related causes; nor was the employer able to meet \\\"the infinitely more difficult task of eliminating all reasonable hypotheses that the killing was work-related.\\\" In Gomes, the evi dence did not answer the question why the employee had been killed; in the absence of affirmative evidence showing non-work-relatedness, we held that substantial evidence to rebut the presumption had not been introduced.\\nUnlike the situation in Gomes, appellees in the case at bar have introduced affirmative evidence in the form of expert testimony that Miller's death was not work-related. The question remains, however, whether the evidence was sufficient to constitute substantial evidence for purposes of rebutting the statutory presumption of compens-ability.\\nThe adequacy of evidence introduced to overcome the statutory presumption was addressed by this court in Employers Commercial Union Co. v. Libor, 536 P.2d 129 (Alaska 1975). In Libor, the Board had awarded compensation based upon its conclusion that a work-related back injury was the cause of a subsequently discovered herniated disc. We upheld the award and concluded that substantial evidence against the presumption of compensability had not been produced even though one of the two medical experts testified that the initial injury could not, with a reasonable degree of medical certainty, be said to be the cause of the condition for which the claimant sought compensation. However, the witness gave no opinion that the subsequent disability was not work-related. Under those circumstances, we held that the presumption of compensability had not been overcome. The mere inability to state that the disability was work-related did not constitute substantial evidence.\\nThornton v. Alaska Workmen's Compensation Board, 411 P.2d 209 (Alaska 1966), also presented the question whether the presumption of compensability had been overcome by substantial evidence that the employee's death was not work-related. We concluded, in part, that the presumption had not been overcome because neither of the two medical witnesses testified that the employee's exertion had not contributed to his death.\\nIn the case at bar, three physicians testified as to the cause of Miller's death. All three agreed that a ruptured berry aneurysm was the most likely cause of death. However, the three doctors differed as to the connection between Miller's work activity and the subsequent intracerebral bleeding.\\nDr. Partnow, the physician who treated Miller in the hospital emergency room, stated that causes of ruptured berry aneurysms are not well understood. He explained that such aneurysms are statistically more likely to rupture during periods of activity than during periods of repose, but he also noted that people are active for the largest proportion of each day. In Dr. Partnow's opinion, the rupture of a berry aneurysm might be caused by an increase in intracerebral blood pressure due to physical straining; loading a box on the back of a pickup truck was the kind of activity which would result in a noticeable increase in blood pressure. However, he declined to state categorically whether the rupture was related to physical activity:\\nI think that it is something that would have happened anyhow. The concept of somebody walking around with a time bomb in his head appeals to me. Had it not happened then it probably would have happened at another time, again more liable to be associated with physical activity, but certainly not inevitably associated with it.\\nDr. Mead agreed that causes of rupture in aneurysms are not entirely understood. He testified that, based upon his observations, 20 to 40 per cent of such ruptures are associated with exertion. Dr. Mead also noted greater incidence of rupturing when blood pressure is elevated and stated that physical exertion causes an increase in blood pressure. In addition, he specifically concluded that Miller's death was related to the exertion associated with Miller's work. However, Dr. Mead refused to say that the rupture could have been avoided if Miller had not lifted the box into the truck at that moment; that is, a similar or greater strain at a time in the foreseeable future was likely to have caused the aneurysm to rupture. He further agreed with appellee's counsel that a certain degree of inevitability was involved and that risk of rupture was present whether affected persons were involved in day-to-day activities or were at rest. Dr. Mead acknowledged that statistical correlations between physical activity and aneurysm rupture may be affected by relative proportions of time spent asleep and awake.\\nThe third medical expert, Dr. Wilson, stated, \\\"[I]t's only the occasional case where it seems that the specific act of physical activity immediately preceded the bleed. . Most of these occur . at random . . . with respect to activity.\\\" Dr. Wilson also stated that ordinary physical activity does not increase blood pressure \\u2014 although \\\"an enormously heavy amount of lifting . . . might make the blood pressure go up a little bit.\\\" He stated that a single act of lifting a moderately heavy tool box would not alter blood pressure at all. Although Dr. Wilson agreed with the claimant's counsel on cross-examination that no absolutes exist \\\"in this thing,\\\" he stated categorically that no relation existed between Miller's effort and the apparent rupture:\\nIt's my opinion that it had nothing whatsoever to do with it, based on all I know from personal and vicarious experiences through reading and so forth about this disease which we think he had.\\nThe instant case differs from Li-bor and Thornton because Dr. Wilson expressly stated that in his opinion Miller's exertion at work \\\"had nothing whatsoever to do with\\\" Miller's death. His opinion was based upon accurate and complete information concerning the circumstances surrounding Miller's death. Nor was Dr. Wilson's expertise or the reliability of his testimony undercut by the testimony of other experts or by cross-examination. Under such circumstances, we conclude that substantial evidence \\u2014 which a reasonable mind might find adequate to support a conclusion that Miller's death was not related to his employment \\u2014 had been introduced and that the presumption of compensability was overcome. In the absence of the presumption, the claimants must prove all elements necessary to establish the claim.\\nAppellants also argue that the presumption should be sustained because the experts' testimony indicates uncertainty among the medical profession as to the causes of aneurysm rupture. They contend that the rule resolving doubts as to the substance of medical testimony in favor of claimants requires resolving uncertainty in medical evidence in favor of Miller's survivors and, accordingly, no substantial evidence exists to rebut the presumption.\\nOn several occasions we have stated that any doubt as to the substance of medical testimony should be resolved in favor of the claimant. Miller's survivors apparent ly would have us apply the rule whenever the evidence reveals lack of unanimity or shows uncertainty among medical experts about ultimate causation. We are not persuaded that the rule should be applied in such a manner. In Thornton v. Alaska Workmen's Compensation Board, 411 P.2d 209, 211 (Alaska 1966), we noted that doubts should be resolved in favor of the claimant \\\"if there were any doubt as to what the substance of the medical testimony was.\\\" In Thornton, we did not rely upon the rule because the substance of neither physician's testimony was in doubt. We believe the Thornton approach is correct and the rule is properly applicable only when the substance of a particular witness' testimony is in doubt. In such circumstances, any doubt should be resolved in favor of the claimant. To extend the rule beyond the testimony of individual witnesses would unduly interfere with the Board's fact finding function. This we decline to do. We believe the presumption of compensability and the showing of substantial evidence necessary to overcome it adequately protect the humanitarian purposes of the Workmen's Compensation Act.\\nIn the case at bar, Dr. Wilson's testimony that Miller's death was unrelated to his employment cannot be characterized as doubtful or ambiguous. Since the substance of Dr. Wilson's testimony was not in doubt, there was no need for the Board to resolve any questions regarding its content. The Board properly declined to apply the rule to the medical testimony before it.\\nAlthough we have concluded that the employer introduced substantial evidence to overcome the presumption of compensability, the question remains whether the Board's denial of workmen's compensation benefits to Miller's widow and children was correct. In reviewing a determination of the Alaska Workmen's Compensation Board, the applicable standard of review is again the substantial evidence test. That is, the reviewing court may not reweigh the evidence or draw its own inferences from the evidence. If, in light of the record as a whole, there is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion, then the order of the Workmen's Compensation Board must be upheld.\\nSince the statutory presumption of compensability has been overcome, it is the applicants' burden to prove all elements necessary to support their claim. The Board considered both testimony of medical experts and testimony of Miller's co-workers and determined that the applicants had failed to show a work-connection. We have carefully reviewed the entire record and have concluded that the same evidence introduced to rebut the presumption of com-pensability is also adequate to support the Board's decision. Even if the substance of testimony given by Dr. Partnow and Dr. Mead is viewed as being in doubt \\u2014 such that it should be resolved in favor of Miller's widow and children \\u2014 substantial evidence remains upon which the Board could reasonably have based its conclusion. The evidence well might support a different decision by the Board; indeed, the cases cited in appellants' brief illustrate the diverse positions taken by workmen's compensation boards and courts in cases where employees have died as a result of aneurysm rupture. However, as a reviewing court, we may not reweigh the evidence or draw our own inferences from it.\\nAffirmed.\\n. The hearing before the Alaska Workmen's Compensation Board was held February 5, 1976. The Board's decision and order were dated June 11, 1976.\\n. The superior court's memorandum of decision was filed December 9, 1976.\\n. A notice of cross-appeal originally was filed by ITT Arctic Services, Liberty Mutual Insurance Company and Alaska Pacific Assurance Company. However, they expressly have abandoned their cross-appeals.\\n. AS 23.30.120(1) provides:\\nIn 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\\n(1) the claim comes within the provisions of this chapter .\\nSee Fireman's Fund Am. Ins. Cos. v. Gomes, 544 P.2d 1013, 1015 (Alaska 1976); Beauchamp v. Employers Liab. Assurance Corp., 477 P.2d 993 (Alaska 1970).\\n. Anchorage Roofing Co., Inc. v. Gonzales, 507 P.2d 501, 504 (Alaska 1973); see Del Vecchio v. Bowers, 296 U.S. 280, 286-87, 56 S.Ct. 190, 193, 80 L.Ed. 229, 232-33 (1935).\\n. See, e. g., Fireman's Fund Am. Ins. Cos. v. Gomes, 544 P.2d 1013, 1015 (Alaska 1976); Anchorage Roofing Co., Inc. v. Gonzales, 507 P.2d 501, 503 (Alaska 1973); Thornton v. Alaska Workmen's Compensation Bd., 411 P.2d 209, 210 (Alaska 1966).\\n. Fireman's Fund Am. Ins. Cos. v. Gomes, 544 P.2d 1013, 1015 & n. 7 (Alaska 1976).\\nIn the case at bar, appellees argue that any competent affirmative evidence should be sufficient to rebut the presumption of compensability. This court previously has required more than mere competence. The evidence not only must be competent but also must be such that a reasonable mind might accept it as adequate to support a conclusion. Fireman's Fund Am. Ins. Cos. v. Gomes, 544 P.2d 1013, 1016 (Alaska 1976). Professor Larson's view is similar:\\nThe evidence necessary to overcome the presumption must do more than create doubt or set up noncompensable alternative explanations. . . . [I]t must be 'evidence such as a reasonable mind might accept as adequate to support a conclusion.'\\n1 Larson, Workmen's Compensation Law \\u00a7 10.-33(b), at 3-128 (1978).\\n. Fireman's Fund Am. Ins. Cos. v. Gomes, 544 P.2d 1013, 1016 (Alaska 1976).\\n. Id.\\n. In Libor, we concluded that the Board properly could have relied upon the presumption of AS 23.30.130(1); but even in the absence of the presumption, the Board's award would have been adequately supported by the record.\\nSeveral other opinions of this court which consider the presumption of compensability are also useful in evaluating the amount of evidence necessary to be substantial. See, e. g., Anchorage Roofing Co., Inc. v. Gonzales, 507 P.2d 501, 505-06 (Alaska 1973); Beauchamp v. Employers Liab. Assurance Corp., 477 P.2d 993 (Alaska 1970).\\n. Dr. Partnow and Dr. Wilson agreed that whether Miller's death resulted from aneurysm rupture could have been established with certainty by an autopsy. However, no autopsy was performed.\\n. See Fireman's Fund Am. Ins. Cos. v. Gomes, 544 P.2d 1013, 1017 n. 13 (Alaska 1976); Beauchamp v. Employers Liab. Assurance Corp., 477 P.2d 993, 997 n. 12 (Alaska 1970); Thornton v. Alaska Workmen's Compensation Bd., 411 P.2d 209, 211 (Alaska 1966); see also Employers Commercial Union Co. v. Libor, 536 P.2d 129, 131 (Alaska 1975). Federal courts considering cases arising under the Longshoremen's and Harbor Workers' Compensation Act \\u2014 the model for Alaska's Workmen's Compensation Act \\u2014 have utilized a similar rule. See, e. g., In re District of Columbia Workmen's Compensation Act, 180 U.S.App.D.C. 216, 222-226, 554 F.2d 1075, 1081-85, cert. denied, sub nom. J. Frank Kelly, Inc. v. Swinton, 429 U.S. 820, 97 S.Ct. 67, 50 L.Ed.2d 81 (1976); Mitchell v. Woodworth, 146 U.S.App. D.C. 21, 23, 449 F.2d 1097, 1099 (1971); Wheatley v. Adler, 132 U.S.App.D.C. 177, 183-184, 407 F.2d 307, 313-14 (1968); J. V. Vozzolo, Inc. v. Britton, 126 U.S.App.D.C. 259, 262, 377 F.2d 144, 147 (1967); Vinson v. Einbinder, 113 U.S.App.D.C. 246, 256, 307 F.2d 387, 388 (1962), cert. denied, 372 U.S. 934, 83 S.Ct. 880, 9 L.Ed.2d 765 (1963).\\n.See, e. g., Hawkins v. Green Associated, 559 P.2d 118, 120 (Alaska 1977); Beauchamp v. Employers Liab. Assurance Corp., 477 P.2d 993, 994-97 (Alaska 1970).\\n. Hawkins v. Green Associated, 559 P.2d 118, 120 (Alaska 1977); Beauchamp v. Employers Liab. Assurance Corp., 477 P.2d 993, 997 (Alaska 1970).\\n. Beauchamp v. Employers Liab. Assurance Corp., 477 P.2d 993, 994 (Alaska 1970); Cook v. Alaska Workmen's Compensation Bd., 476 P.2d 29, 32 (Alaska 1970).\"}"
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+"{\"id\": \"10468269\", \"name\": \"C. Y., INCORPORATED, an Alaska Corporation, Appellant, v. Linda BROWN, Director of the State of Alaska Alcoholic Beverage Control Board, Appellee\", \"name_abbreviation\": \"C. Y., Inc. v. Brown\", \"decision_date\": \"1978-02-24\", \"docket_number\": \"No. 2781\", \"first_page\": \"1274\", \"last_page\": \"1277\", \"citations\": \"574 P.2d 1274\", \"volume\": \"574\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T17:21:49.389578+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before BOOCHEVER, Chief Justice, and RABINO WITZ, CONNOR and BURKE, Justices.\", \"parties\": \"C. Y., INCORPORATED, an Alaska Corporation, Appellant, v. Linda BROWN, Director of the State of Alaska Alcoholic Beverage Control Board, Appellee.\", \"head_matter\": \"C. Y., INCORPORATED, an Alaska Corporation, Appellant, v. Linda BROWN, Director of the State of Alaska Alcoholic Beverage Control Board, Appellee.\\nNo. 2781.\\nSupreme Court of Alaska.\\nFeb. 24, 1978.\\nC. R. Kennedy, Kennedy, Azar & Edwards, Anchorage, for appellant.\\nDavid T. LeBlond, Asst. Atty. Gen., Anchorage, Avrum M. Gross, Atty. Gen., Juneau, for appellee.\\nBefore BOOCHEVER, Chief Justice, and RABINO WITZ, CONNOR and BURKE, Justices.\", \"word_count\": \"1756\", \"char_count\": \"10708\", \"text\": \"OPINION\\nBURKE, Justice.\\nThis appeal comes to us after entry of summary judgment in an action for declar atory relief. Appellant, C. Y. Incorporated, plaintiff in the court below, questions the authority of the Alaska Alcoholic Beverage Control Board to require payment of debts owed to the general creditors of a holder of a liquor license before granting its approval for a transfer of that license to appellant.\\nAt the root of this controversy is AS 4.10.330. That section provides:\\nApplication for transfer of licenses.\\n(a) No license may be transferred by the licensee to any other person except with the written consent of the board. Consent for the transfer of a license may be given upon written application therefor.\\n(b) Application for the transfer of ownership of an existing license shall be accompanied by a statement, under oath, executed by the transferor in which he lists all debts and the amounts which he owes to a creditor of the business and taxes due. The board shall promptly inform each creditor of the application and of the amount owed that creditor. The board shall not approve the application for transfer unless all of the debts and taxes are paid, or the transferor gives security for the payment of them satisfactory to the creditor or taxing authority prior to approval of the application. (emphasis added).\\nIn reliance on the foregoing section, the Alcoholic Beverage Control Board, by and through its Executive Director, Linda Brown, refused to approve a transfer of a liquor license from Miles and Katherine Davie to C. Y. Incorporated until all taxes and debts owed to the Davies' creditors had been paid. C. Y. Incorporated thereupon commenced this action, seeking a judgment declaring that AS 04.10.330 does not apply to the form of transfer shown by the evidence.\\nThe events giving rise to this litigation began when Miles and Katherine Davie contracted with C. Y. Incorporated for the installment purchase of the Golden Whale bar in Kotzebue, Alaska. Apparently, the Davies breached the contract and C. Y. Incorporated brought suit to recover possession of the business along with the liquor license. Pending resolution of that litigation, Superior Court Judge Victor D. Carlson, on May 22, 1974, ordered that possession and operation of the Golden Whale be returned to C. Y. Incorporated, allowing it to maintain the premises and continue the business in order to preserve the assets. C. Y. Incorporated then proceeded to pay the Davies $5,000.00 in exchange for a confession of judgment rescinding the contract. The agreement also provided that the Davies would sign all documents necessary for the transfer of the liquor license to C. Y. Incorporated. Judgment was entered on July 15, 1974, by Judge Carlson, requiring the Davies to convey the business back to C. Y. Incorporated, including the liquor license. The Davies were further ordered to sign all documents required to effectuate the transfer, in accordance with their confession of judgment.\\nIn March, 1975, C. Y. Incorporated moved to amend the judgment of July 15, 1975, so as to transfer the liquor license to C. Y. Incorporated by operation of law, on the grounds that the Davies had refused to sign the required transfer documents. On March 6, 1975, Judge Carlson ordered that the liquor license be transferred from the Davies to C. Y. Incorporated, but made such order and transfer \\\"subject to the approval of the Alcoholic Beverage Control Board.\\\"\\nThe filing of the present action followed the Board's later refusal to approve the transfer until the Davies' creditors were paid.\\nIn the superior court, C. Y. Incorporated moved for summary judgment, contending, as it does here, that AS 04.10.330 was inapplicable because it had acquired the liquor license through foreclosure of a security interest, rather than through a voluntary transfer. The superior court denied C. Y. Incorporated's motion for summary judgment, saying in its written order:\\nIt should first be noted that there are genuine issues that would have to be resolved before summary judgment in the plaintiffs favor would be possible. Among them are the issues set out in defendant's Statement of Genuine Issues dated June 4, 1975.\\nAccording to the statement referred to, those issues were:\\n(1) As a factual matter, was the transfer of the Golden Whale liquor license from Miles Davie and his former wife, Catherine Davie, to C. Y. Incorporated in the nature of a voluntary or involuntary transfer?\\n(2) As a factual matter what consideration was given and/or what financial obligations of the Davies did C. Y. Incorporated agree to discharge for the Confession of Judgment obtained from the Davies on or about May 23, 1974, which transferred the liquor license of the Golden Whale to C. Y. Incorporated?\\n(3) As a factual matter, did C. Y. Incorporated retain a security interest in the liquor license it earlier transferred to the Davies?\\nThe superior court then proceeded to grant summary judgment in favor of the defendant, and against the moving party, as permitted by Rule 56(c), Alaska R.Civ.P., saying:\\n[T]he matter can be disposed of as a matter of law in favor of the defendant by assuming, for these purposes only, that the factual situation is as interpreted by the plaintiff. The transfer of the license lies within the provisions of AS 04.10.330 as read in conjunction with AS 09.35.087. Gibson v. Alaska Alcoholic Beverage Control Board, 377 F.Supp. 151 (D.C.Alaska 1974) is not closely analogous to the instant case. This is not a UCC Article 9 transaction that might (without so deciding) remove the matter from the above cited statutes. Further, there is substantial difference in the identity of the parties and the issues. Gibson involved a dispute between a license holder and a secured party over whether or not the secured party, who had relied specifically upon the license for collateral could force a transfer of the license. The analysis of that case does not apply to a dispute between the Board and one seeking transfer of a license.\\nThe foregoing is dispositive of all issues in this matter.\\nFrom the foregoing language, it is not altogether clear whether the superior court based its decision on the conclusion that C. Y. Incorporated had no security interest under the Uniform Commercial Code or whether its decision was simply that any such interest that C. Y. Incorporated might have had was subordinate to the claims of general creditors under AS 04.10.330. In either event, we believe that the court correctly granted summary judgment in favor of appellee.\\nContrary to the thrust of its whole argument, C. Y. Incorporated apparently did not obtain the license through foreclosure of a security interest. What it did was pay the Davies $5,000 for a confession of judgment rescinding the installment sales contract and then took possession of the licensed premises under what, at that time, amounted to a voluntary transfer agreement, albeit one having the sanction of the superior court. The amended judgment, transferring the license by operation of law, was nothing more than an exercise of the court's power to declare done what the Davies had already agreed to do in their settlement agreement with C. Y. Incorporated. Thus, the transfer, despite having certain overtones of a foreclosure, was in fact only a step removed from the ordinary transfer one would see in the event of a repurchase of a liquor license by a former owner. We hold that the requirements of AS 04.10.330 apply to such a transfer.\\nHowever, even if there was genuine foreclosure of a perfected security interest, we would be compelled to reach the same result.\\nAS 09.35.087 provides that \\\"the liquor license of a judgment debtor [is] exempt from execution.\\\" That section, we believe, indicates an overall legislative intent that one general creditor of a liquor license holder should not be allowed to place himself in a preferred position over other general creditors. That policy is further illustrated by the language of AS 04.10.330, indicating that a 11 general creditors of a liquor license holder should be paid before a transfer of the license will be approved. To allow one to avoid the requirements of AS 04.10.330 by the use of an Article 9 security interest, would be to defeat this basic policy, since one general creditor would, by that device, gain priority over others similarly situated. For example, a liquor supplier having sufficient bargaining power to obtain a security interest in a customer's liquor license, before extending credit to the license holder, could place himself in a preferred position over the claims of the license holder's other creditors. For that reason, we further hold that, even if there was a technical foreclosure in this case, the license transfer was subject to the requirements of AS 04.10.330.\\nThe one instance in which the foregoing result seems harsh is the one presented in this case. It would seem that the seller of a liquor license should be afforded greater protection than that given to subsequent creditors of his transferee by AS 04.10.330. However, if the legislature intended to provide greater protection to sellers of liquor licenses it should have done so in terms sufficiently clear to make that intent known. The present statutory scheme fails to indicate that any such exception ):was intended. A healthy respect for the doctrine of separation of powers compels us to leave the development of such an exception to the legislative branch.\\nAFFIRMED.\\nMATTHEWS, J., not participating.\\n. See AS 22.10.020(b).\\n. AS 09.30.050, provides in part: \\\"A judgment by confession may be entered with or without action against a person .for any amount or relief.\\\"\\n. Civil Rule 56(c) provides in part:\\n[Summary judgment shall be entered] if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that any party is entitled to judgment as a matter of law. . . . Summary judgment, when appropriate, may be rendered against the moving party.\\n. AS 45.05.\\n. There is no evidence in the record that C. Y. Incorporated filed the financing statement required to perfect a security interest under the U.C.C. See AS 45.05.734.\"}"
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+"{\"id\": \"10468470\", \"name\": \"Lura Mars WALLACE, Administratrix of the Estate of Ronald Poitras, Deceased, Appellant, v. STATE of Alaska, Appellee\", \"name_abbreviation\": \"Wallace v. State\", \"decision_date\": \"1976-12-29\", \"docket_number\": \"No. 2683\", \"first_page\": \"1120\", \"last_page\": \"1126\", \"citations\": \"557 P.2d 1120\", \"volume\": \"557\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T20:50:50.775353+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before BOOCHEVER, Chief Justice, and RABINO WITZ, CONNOR and BURKE, Justices.\", \"parties\": \"Lura Mars WALLACE, Administratrix of the Estate of Ronald Poitras, Deceased, Appellant, v. STATE of Alaska, Appellee.\", \"head_matter\": \"Lura Mars WALLACE, Administratrix of the Estate of Ronald Poitras, Deceased, Appellant, v. STATE of Alaska, Appellee.\\nNo. 2683.\\nSupreme Court of Alaska.\\nDec. 29, 1976.\\nWilliam M. Erwin, Anchorage, for appellant.\\nSanford M. Gibbs, Anchorage, for appel-lee.\\nBefore BOOCHEVER, Chief Justice, and RABINO WITZ, CONNOR and BURKE, Justices.\", \"word_count\": \"3483\", \"char_count\": \"21224\", \"text\": \"OPINION\\nBURKE, Justice.\\nThe issue raised by this appeal is whether the State of Alaska can be held liable for a workman's death when state inspectors discovered the safety violation which was the cause of death but failed to take any action on it. In this case, the trial court granted the state's motion for summary judgment, concluding that persons in the position of safety inspectors should not be held liable when they fail to discover violations of safety rules or, having discovered violations, fail to enforce the law against them. Our recent decision in Adams v. State controls the issues raised in this case, and the superior court's order is reversed.\\nOn April 19, 1972, Ronald Poitras was electrocuted while working on the installation of a water main pipe near Tudor Road in the Muldoon area of Anchorage. Poitras was a pipe layer on the installation project, and it was his job to guide the sixteen inch pipe into a trench which had been excavated to encase it. During this maneuver, the operator of a Koehring \\\"1066\\\" backhoe, which has a twenty foot boom, would lift the pipe from its storage position and lower it into the trench. Po-itras stood above the trench and guided the pipe into position. When, on the day of the accident, the boom of the backhoe hit or came into close contact with a high voltage utility wire owned by Chugach Electric, the boom was immediately electrified. In turn, the steel cable which held the pipe and the pipe itself were electrified, and Poitras, who was guiding the pipe, was electrocuted.\\nDuring the thirty days that the job had been under way, state safety inspectors had visited the installation site on at least seven different occasions. Jorge C. Hix, at that time the Director of Occupational Safety for the State of Alaska, and Robert Smith, the Assistant Commissioner of Labor, had each visited the job at least twice, and three other inspectors had been on the site once. Prior to the accident, the state inspectors who were on the site had enforced the General Safety Code, promulgated by the State Department of Labor; the job had been shut down once because no oiler was there to supervise, and on another occasion, men had been ordered out of the trench being excavated until it could be widened. Although city inspectors were almost constantly present on the site, they did not regulate safety conditions ; they merely monitored the work to insure the correct installation of the pipe. When an unsafe working condition was noticed by an inspector for the city, he would then contact the state safety inspectors to take action on it.\\nOn April 17, 1972, two days before Ronald Poitras' death, Doug Wahto, a state inspector on this job, noticed that the boom of the backhoe was coming within ten feet of the Chugach high voltage power line, in violation of the General Safety Code. He asked Gale Fowler, the backhoe operator, if Fowler realized that he was in violation of the Safety Code, and when Fowler replied affirmatively, Wahto warned him of the dangers of such a violation. Wahto also instructed Fowler to store the pipes on the side of the trench farthest from the high tension line, to minimize the possibility of contact with the line when the backhoe moved the pipe from its storage position into the trench. Wahto filled out a report on this inspection, and when he returned to his office, he discussed the situation with Jack Garrett, the Senior Safety Inspector. Gale Fowler, operator of the backhoe, stated in his deposition that \\\"a couple of times\\\" he had been instructed by state inspectors to \\\"watch the lines.\\\" Melvin Reynolds, the oiler on the job, stated that the boom of the backhoe came within eight to twelve feet of the high tension line every time a piece of pipe was lifted. Other than the oral warnings given to Fowler by Wahto, no action was taken to stop the hazardous operation of the backhoe before Poitras was killed. There were no state inspectors at the job site on the day of the accident.\\nOn April 19, 1973, Lura Mars Wallace, administratrix of the estate of Ronald Po-itras, filed a wrongful death action against the State of Alaska, as well as other defendants. The State moved to dismiss the complaint, and, after the first of two hearings on the matter, requested that the superior court treat the motion as one for summary judgment, based on the pleadings, affidavits, and depositions in the case. On August 4, 1975, the trial court granted the motion for summary judgment, and it is from that judgment that Wallace appeals.\\nThe issue in this case is identical to the one confronted by this court in Adams v. State: whether the state is liable for a failure to enforce safety regulations once it has undertaken an inspection and has discovered safety violations in the course of that investigation. In analyzing this question in Adams, we considered three factors:\\n. whether the state had a duty to take some action with regard to the Gold Rush; whether the state's duty, if any, was owed to the plaintiffs or their decedents; and whether the state, if liable under the first two requirements, is nonetheless immunized by AS 09.50.250, because the actions or inaction complained of were discretionary.\\nThis three-part analysis is equally applicable in the case before us now.\\nI. The State's Duty to Act\\nAfter concluding that preventable accidents were the leading cause of death in the state, the legislature delegated to the Alaska Department of Labor the responsibility for industrial safety. Pursuant to this authority, the Alaska Department of Labor promulgated the General Safety Code (revised June 1969), and sec. 312-20 of that code provided:\\nThe operation of shovels, all-purpose cranes and drag-lines when it is possible to bring any part of the equipment within ten (10) feet of high tension lines is prohibited, except when such high voltage lines have been effectively guarded. Whenever it is necessary to move the shovel under electric wires, ample clearance shall be provided, together with such precautions as may be necessary to prevent contact between any part of the shovel and the wires.\\nThe State Department of Labor was given the authority to enforce all state labor laws and to make inspections for the enforcement of those laws. The Commissioner of Labor had a specific duty to give employers written notice of any discovered violations of the General Safety Code which created a serious hazard to the safety of the employees at the site. The Commissioner also had the authority to close a site and have employees removed from it until the unsafe condition could be corrected.\\nIn Adams, we did not treat the issue of whether state fire officials had a statutory duty to remedy safety hazards discovered at the Gold Rush Hotel. Instead, we found that by undertaking the inspection, the state voluntarily assumed a common law duty to do so with care. We further held that once safety violations were discovered and informally discussed with the Gold Rush management, \\\"the state fire officials had a duty to proceed further with regard to the recognized hazards.\\\" In the case before us now, the State Department of Labor, by conducting safety inspections of the pipe installation site, voluntarily assumed a duty to use due care in attempting to remedy the unsafe condition discovered in the course of inspection.\\nWe do not determine at this time whether the state breached its duty to take steps to abate the hazardous operation of the backhoe. There did, however, exist in this case a course of action for the state officials to pursue which might have averted the result of the dangerous condition. The Department of Labor had the statutory authority to enforce the General Safety Code, and the Commissioner of Labor was specifically authorized to close down sites as a means of enforcing the Code. In fact, this method of enforcement had already been employed on the site. State safety inspectors had previously closed the installation project because no oiler was on the job and, on another occasion, had ordered men from the trench where the pipe was being laid, until it could be widened. The safety hazard of operating the backhoe in close proximity to the high voltage line would have easily been corrected by placement of a high tension barrier over the lines, protecting the backhoe's boom from electrification. However, the reasonableness of the state's failure to attempt to correct the hazardous situation within two days of its discovery, other than by warning the backhoe operator, remains a question for the trier of fact.\\nII. Duty to the Plaintiff's Decedent\\nIn analyzing whether the state's common law duty was owed to the plaintiff and her decedent, we look to the purpose of the inspection. In the instant case, Poitras, a workman, was certainly the intended beneficiary of the safety inspections conducted by the Department of Labor and the foreseeable victim of the uncorrected safety hazard. This is especially apparent in light of the stated legislative purpose to reduce the incidence of deaths caused by preventable work-related accidents. Therefore, Poitras was a member of the class to whom the state specifically owed a duty.\\nIII. The Discretionary Function\\nAlthough the decision to inspect a site is a discretionary act, the negligent performance of that inspection is a ministerial function and thus not immune. Since it was the failure to follow up on the inspection which formed the basis of Wallace's complaint, not the initial decision to inspect, the state would not be immune from liability on the theory that its actions or inaction could be characterized as a discretionary function.\\nIn our consideration of the policy implications of a denial of immunity in Adams, we noted that there sometimes exists a possibility that imposition of liability for negligent inspection might deter the state from undertaking inspections at all. The state in this case has argued that a finding of liability on its part would encourage safety inspectors to avoid inspecting work sites in the future, in order to protect themselves from liability. In this context, the state has also contended 'that once a violation has been detected, the spectre of liability would require an inspector to be present on a construction site at all times to insure that it did not recur. This policy argument is not persuasive, given the sweeping revision of Title 18, making mandatory the enforcement of safety regulations in most instances.\\nThe 1973 amendments to Title 18 established a division of occupational safety and health within the State Department of Labor, and authorized state OSHA inspectors to make unannounced inspections of virtually any establishment. If any employee in the state so requests, the state inspectors have a mandatory duty to inspect the site requested, as long as they have reasonable grounds to believe a safety violation exists on that site. If a violation is discovered upon inspection, the Department of Labor must issue a citation and fix the time for abatement of the hazard. Furthermore, once a citation has been issued, the Department must notify the employer of the proposed penalty for the violation; if the employer does not appeal this penalty to the OSHA review board within fifteen days, then the citation and penalty become final and non-reviewable. Finally, the duties of the Department of Labor have been changed to include mandatory enforcement of occupational safety and health standards which are at least as stringent as those promulgated by the U.S. Secretary of Labor pursuant to the Federal O.S.H.A. The statute itself now specifically prohibits placement of equipment near electrical power lines unless a warning sign is posted and barriers are installed to protect the equipment from being electrified. Because the statute now imposes upon the state a duty to enforce the safety provisions once violations have been discovered, the state's policy argument for retaining its immunity is moot.\\nWe find that the State Department of Labor had a duty to use due care in attempting to abate the hazardous operation of the backhoe near high voltage lines; that this duty was owed to Poitras; and that the state has no immunity under AS 09.50.250. Therefore, the superior court's order granting summary judgment is REVERSED AND REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION.\\nERWIN, J., did not participate.\\n. 555 P.2d 235 (Alaska 1976).\\n. There is conflicting evidence as to whether the boom of the crane actually came into contact with the Chugach line or merely was sufficiently close to cause electricity ,to arc to the boom.\\n.The oiler's duties include acting as a safety observer; he watches the machine to prevent anything from interfering with it, and he observes the workers in ,the ditch.\\n. 555 P.2d at 239-40.\\n. Prior to amendment in 1973, AS 18.60.010 provided:\\nLegislative intent. (a) The legislature finds that preventable accidents are the leading cause of death in the state, that accidents cause nearly one-fourth of all deaths of the white race in the state and as much as 82 per cent of all deaths in certain age groups; that the proportion of accidental deaths to all deaths is three .times as high in the state as in other parts of the United States where intensive accident prevention campaigns are conducted; and that an unknown but proportionately as great a rate of nonfatal accidents is sustained in the state.\\n(b) For these reasons it is found , and declared necessary to undertake a program to reduce the incidence of preventable accidents in the state.\\n.Prior to amendment in 1973, AS 18.60.020 provided:\\nRules and regulations. The Department of Labor may issue the orders, rules and regulations necessary to carry out the purposes of \\u00a7 10-100 of this chapter.\\n. AS 23.05.060 provides in part:\\nThe department may\\n(1) enforce all state labor laws;\\n. AS 23.05.100 provides in part:\\nThe department may\\n(2) make inspections for the proper enforcement of all state labor laws;\\n.Prior to amendment in 1973, AS 18.60.075 (b) provided:\\nIf the commissioner of labor determines that the condition of an employment site or part of the site creates a serious hazard to the safety of the employees a,t the site, he shall give written notice of the section of the General Safety Code which has been violated to the employer. After notice is given the commissioner of labor may order the employment site or part of the site closed and the employees removed from it until the condition is corrected. Employees shall be permitted on the employment site to correct the unsafe condition.\\n. Id.\\n. 555 P.2d at 240.\\n. Adams v. State, 555 P.2d 235, 241 (Alaska 1976) and cases cited therein at n. 12.\\n. See AS 18.60.010(a), supra n. 5.\\n. Adams v. State, 555 P.2d 235, 244 (Alaska 1976).\\n. AS 18.60.055 provides :\\nDivision of occupational safety and health. There is established in the department a division of occupational safety and health to be administered by a director responsible to the commissioner. Minimum qualifications shall be established for employees of the department acting as safety inspectors. These qualifications shall include, as a minimum requirement, at least five years general work experience in the field they are assigned to inspect.\\n. AS 18.60.083(a)(2) provides:\\n(2) inspect and investigate during regular working hours and at other reasonable times, and with reasonable limits and in a reasonable manner, a place of employment and all pertinent conditions, structures, machines, devices, equipment and materials, and to question privately an employer, owner, operator, agent or employee.\\n. AS 18.60.088 provides in part:\\nEmployee requests for special inspection. (a) An employee or a representative of employees who believe that a violation of a safety or health standard exists that threatens physical harm or that an imminent danger exists, may request an inspection by giving notice of the violation or danger .to the department. The notice shall be in writing and set out with reasonable particularity the grounds for the notice and be signed by the employee or the representative of the employees. If, upon receipt of the notice, the department determines that there are reasonable grounds to believe that a violation or danger exists, the department shall make a special inspection as soon as practicable. If the department determines there are no reasonable grounds to believe that a violation exists, the department shall notify in writing .the employee or the representative of the employees of that determination.\\n. AS 18.60.091, provides in part:\\nCitations, (a) If, upon inspection or investigation, the department believes that an employer has violated a provision of \\u00a7 10-105 of this chapter that is applicable to the employer, the department shall with reasonable promptness issue a citation to the employer. Each citation shall be, in writing and shall describe with particularity the nature of the violation, including reference to ,tlie provisions of the chapter or any order, rule or regulation alleged to have been violated, and shall fix a reasonable time for abatement of the violation. Tlie department may prescribe procedures for the issuance of a notice instead of a citation with respect ,to minor violations which have no direct or immediate relationship to safety or health.\\n. AS 18.60.093 provides in part:\\nEnforcement procedures, (a) If, after an inspection or investigation, the department issues a citation, the commissioner shall, at a reasonable time after the termination of the inspection or investigation, notify the employer by certified mail of the penalty proposed to be assessed and that .the employer has 15 working days within which to notify the commissioner and the OSHA Review Board that he wishes to contest the citation or proposed assessment of penalty. If, within 15 working days from the receipt of the notice issued by the commissioner, the employer fails to notify the OSHA Review Board that he intends to contest the citation, or proposed assessment of penalty, the citation and the assessment, as proposed, shall be considered final and not subject to review by any court.\\n. AS 18.60.030(6) provides:\\nDuties of Department of Labor. The Department of Labor shall\\n(6) establish and enforce occupational safety and health standards that prescribe requirements for safe and healthful working conditions for all employment, including state and local government employment, and the requirements are to be at least as effective as those requirements promulgated by the United States Secretary of Labor under \\u00a7 6 of Public Law 91-596 [29 U.S.C. \\u00a7 651-78] ;\\n. AS 18.60.670 provides :\\nProhibition against placement of equipment near electrical power lines and conductors. No person individually or through an agent or employee may\\n(1) place any type of tool, equipment, machinery or material which is capable of lateral, vertical or . swinging motion, within 10 feet of a high voltage overhead electrical line or conductor;\\n(2) store, operate, erect, maintain, move or transport tools, machinery, equipment, supplies, materials, apparatus, buildings or other structures within 10 feet of a high voltage overhead electrical line or conductor.\\n.AS 18.60.675 provides :\\nPosting of warning sign before operation.\\nNo person individually or through an agent or employee may operate a crane, derrick, power shovel, drilling rig, hoisting equipment, or similar apparatus, any part of which is capable of vertical, lateral or swinging motion, unless tlie operator or his employer posts and maintains in plain view of the operator, a durable warning sign legible at 12 feet, which reads as follows: 'It is unlawful to operate this equipment within 10 feet of high voltage lines.'\\nAS 18.60.680 provides:\\nPlacement of barriers for temporary work. Before a person is going to temporarily engage in work or other activity in closer proximity to a high voltage line or conductor than is permitted by \\u00a7 670 of this chapter, he shall immediately notify the operator or owner of the high voltage line or conductor of the work to be performed and make appropriate arrangements, with payment satisfactory to the operator, for the installation of temporary mechanical barriers, temporary deenergization and grounding of ,tlie conductors, or a temporary raising of tlie conductors. Costs incurred by an operator or owner of a high voltage line or conductor in providing barriers, de-energization, and grounding as specified in this section shall be paid by the person engaging in the work which requires these protective measures.\"}"
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+"{\"id\": \"10476803\", \"name\": \"Conrad B. MILLER and Lowell P. Jenkins, Appellants, v. NORTH POLE CITY COUNCIL and City Clerk, Appellees\", \"name_abbreviation\": \"Miller v. North Pole City Council\", \"decision_date\": \"1975-03-18\", \"docket_number\": \"No. 2170\", \"first_page\": \"1013\", \"last_page\": \"1017\", \"citations\": \"532 P.2d 1013\", \"volume\": \"532\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T17:36:11.856572+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before RABINOWITZ, C. J., and CONNOR, ERWIN, BOOCHEVER and FITZGERALD, JJ.\", \"parties\": \"Conrad B. MILLER and Lowell P. Jenkins, Appellants, v. NORTH POLE CITY COUNCIL and City Clerk, Appellees.\", \"head_matter\": \"Conrad B. MILLER and Lowell P. Jenkins, Appellants, v. NORTH POLE CITY COUNCIL and City Clerk, Appellees.\\nNo. 2170.\\nSupreme Court of Alaska.\\nMarch 18, 1975.\\nJohn Rosie, Fairbanks, for appellants and cross-appellees.\\nBarry W. Jackson, Daniel T. Saluri, Fairbanks, for appellees and cross-appellants.\\nBefore RABINOWITZ, C. J., and CONNOR, ERWIN, BOOCHEVER and FITZGERALD, JJ.\", \"word_count\": \"2385\", \"char_count\": \"14243\", \"text\": \"BOOCHEVER, Justice.\\nThis appeal arises out of the denial by the City Council of the City of North Pole of appellants' declaration of candidacy for City Council positions. On October IS, 1973, appellants Miller and Jenkins tendered their declarations of candidacy, along with the $5.00 filing fee, to the North Pole City Clerk who accepted the tender. The declarations were then taken to the City Council, and in a special pre-election meeting held on October 17, 1973, the City Council rejected appellants' declarations of candidacy and disallowed the placing of appellants' names on the ballot for the upcoming election on the ground that appellants failed to satisfy the residency requirements of the North Pole Home Rule Charter Section 2.2(a). On October 18, 1973, a certified letter was mailed to both Miller and Jenkins informing them of the Council's actions.\\nIn a complaint filed on October 23, 1973, Miller and Jenkins sought a declaratory judgment to have themselves declared residents of the City of North Pole. They also sought to have declared invalid the action of the City Council in rejecting their declarations of candidacy, and in designating City Council seats as Seats A, B & C. Shortly thereafter, appellants herein filed a motion for a temporary restraining order which was denied in a hearing held on November 2, 1973. In denying the motion, the court relied on the failure of plaintiffs Miller and Jenkins to show that irreparable harm would result if the restraining order did not issue. The election went ahead as scheduled on November 6, 1973 with Miller and Jenkins receiving a substantial number of write-in votes. On November 26, Miller and Jenkins sought a preliminary injunction to prevent those elected in the recent election from taking office. The preliminary injunction was denied on November 29, 1973, the superior court ruling that granting the injunction would be more harmful than denying it.\\nThe case came to trial on December 20, 1973. Plaintiffs Miller and Jenkins called two witnesses, both of whom testified to plaintiffs' respective voter registration addresses. One of the witnesses, the North Pole City Clerk, testified that Mr. Miller had registered to vote in and had signed the voter sign-in sheet in North Pole municipal elections since 1969. The City-Clerk further testified that Mr. Jenkins had registered to vote and signed the voter sign-in sheet in the 1969 and the 1971 through 1973 North Pole municipal elections.\\nOn January 11, 1974, Judge Taylor signed defendants' proposed findings of fact and conclusions of law to the effect that the City Council acted within its authority in excluding plaintiffs' names from the ballot and that, at trial, the plaintiffs had failed to prove residency within the City of North Pole for the requisite period. The trial court further concluded that since neither plaintiff was qualified to run for office in the election at issue, neither had standing to question the designation of seats on the ballots used therein. Judgment was entered for defendants on January 23, 1974, and attorney's fees in the amount of $750.00 were awarded to defendants. Miller and Jenkins appeal from this judgment, and the City of North Pole and the City Clerk dispute the attorney's fee award on cross-appeal.\\nBefore proceeding to a consideration of the issues presented by the parties to this appeal, we must first deal with the question of mootness. Concerning the designation of seats on the ballot, appellants informed the court at oral argument that the City of North Pole has changed the ballot structure so that seats are no longer designated and candidates now run at large. Since this is the result which appellants wished to achieve by court action, we consider the seat designation no longer before us. Also, as admitted by appellants at oral argument, the case is also moot regarding appellant Jenkins since he died subsequent to the 1973 election and the proceedings below. However, the case is not moot as to Miller. Nor is mootness a bar to our review of the question concerning the City Council's authority to pass on the qualifications of candidates in pre-election meetings. We have previously recognized an exception to the mootness doctrine where it application would remove from judicial review recurring problems in which there is a public interest. The issue pertaining to the City Council's authority comes squarely under that exception.\\nIn determining that the City Council acted within its authority in denying appellants' declarations of candidacy in a pre-election special meeting, the trial court relied on Home Rule Charter \\u00a7 2.2(c) and Ordinance \\u00a7 7 \\u2014 38(d) . We find this reliance misplaced. Each of these provisions empowers the City Council to decide all questions as to the qualifications and election \\\"of its members\\\" (emphasis added). Logically, a person cannot be a member of the Council until he or she has been elected. Since Ordinance \\u00a7 7-38 (d) and Home Rule Charter \\u00a7 2.2(c) authorizes the City Council to judge the election and qualifications of its members, these provisions can only refer to a time subsequent to the election, and therefore provide no authority for such pre-election determination as occurred here. Support for this reading of the North Pole Home Rule Charter provision and Ordinance \\u00a7 7-38 (d) may be found in Banks v. Election Commissioners of Boston. Therein, the court wrote:\\nThe only ground set forth in the demurrers which merits our attention relates to the jurisdiction of the court because of St. 1909, c. 486, \\u00a7 SO, as amended by St. 1924, c. 479, \\u00a7 IS, which in part reads, \\\"The city council shall be the judge of the election and qualifications of its members\\\". . . . It is clear, and no suggestion has been made to the contrary, that by St. 1895, c. 449, \\u00a7 4, the board has all the powers and duties relating to \\\"the determination of the results of elections\\\". Therefore, until the board determines such results and issues a certificate to one whom it has determined to have received the vote necessary for election, there does not exist anyone who is a \\\"member\\\" whose election and qualifications the city council may judge. . . . Up to the point that a certificate has been issued, at least, the matter is in control of the court, which may in proper proceedings direct the board to whom to issue the certificate. An adjudication to this effect does not trench upon the prerogatives of the legislative body, (citations omitted).\\nSimilarly, the Supreme Court of Monroe County, New York has stated:\\nSection 5-7 of such Charter, which provides that the Council \\\"is the judge of the election and qualification of its members\\\" relates to the incoming Council. The legislative body to which a member is elected has the power to judge the election and qualification of its members, not the body in office at the time of the election. . . .No Council may sit in judgment of the qualification of members elected to a succeeding Council. Otherwise, the orderly transition of government could be obstructed, the will of the voters frustrated and public officers perpetuated in office. Accordingly, it is held that the present Council, of which petitioner is not a member, is without jurisdiction to judge his election and qualifications.\\nAs a necessary consequence of our holding that the City Council of North Pole was without authority to pass upon the qualifications of any candidate for City Council before the election, it follows that Miller and Jenkins were improperly deprived of the right to have their names appear on the ballot. The only official authorized to make pre-election determinations of qualification for candidacy, the City Clerk, accepted both appellants' declarations of candidacy thereby implicitly finding compliance with all requirements necessary to candidacy including the requisite residency. Since the City has agreed that should Miller and Jenkins prevail on the question of their qualifications for candidacy a new election would be held, and since we find that the City Clerk's determination that the appellants' were qual ified for candidacy was never properly challenged, we remand to the superior court for the purpose of ordering that the election of November 6, 1973 be nullified as to the seat sought by Mr. Miller and that a new election be held, as expeditiously as possible, to fill the City Council position thus rendered vacant.\\nBecause, under our resolution of the issues involved herein, the City of North Pole and the City Clerk do not prevail on any issue, the lower court award of attorney's fees to them is vacated.\\nReversed.\\n. The minutes of the meeting were as follows : A special meeting was held on October 17, 1973, called for by the City Council, for the purpose of determining the qualifications of the six candidates who filed for councilmen seats in, the upcoming City of North Pole City Elections to be held on November 6, 1973. At this time information was brought forward that Mr. C. B. Miller and Mr. Lowell Jenkins do not meet the residency requirements. Because of this a motion was made by Mr. Cunningham, seconded by Mrs. Ford that Mr. Jenkins and Mr. Miller's names be omitted from the ballot on the ground of violation of Chapter 2, Sec. 2.2, Paragraph (a) of the City of North Pole Home Rule Charter as they are not and have not been residents of the City as required therein. Roll call vote showed unanimous approval.\\nThese minutes were subsequently amended in a regular meeting held on November 5, 1973.\\nMinutes of special meeting of October 17, 1973. Mr. Jackson asked if it was the finding of the city council that Mr. Jenkins and Mr. Miller do not in fact meet the residency requirements. He stated that he would like the minutes to show that it was determined to the council's own satisfaction that they do not meet the residency requirements. Mrs. Ford made a motion to accept the minutes of October 17th, as amended, seconded by Mrs. Lewis and roll call showed unanimous approval.\\n. Section 2.2(a) of the Home Rule Charter states:\\nTo be eligible to file a nominating petition for election to a City office, a person shall be an elector of the City and shall have been a resident of the City or of territory annexed to the City, or shall have had a combination of residence in the City and in the annexed territory for a period of not less than two (2) years preceding the date of the filing of such petition and shall be at least twenty-one (21) years of age.\\n. Doe v. Smith, 487 P.2d 47, 53 (Alaska 1971) ; In re G.M.B., 483 P.2d 1006, 1008 (Alaska 1971).\\n. Section 2.2(c) provides : \\\"The Council shall be the judge of the election and of the qualifications of its members.\\\"\\n. Section 7-38(d) states:\\nAfter the canvass and the filing of the records of the meeting of the canvassing board, the City Clerk shall within two (2) days, make and sign a certificate of election for each person declared thereby to be elected and shall deliver the same to him upon demand. A certificate of election is prima facie evidence of the fact therein contained but the City Council shall decide all questions as to the qualifications and election of its own members.\\n.We are not here confronted with a question involving a council passing on the qualifications of its members. Accordingly, we do not here consider the jurisdiction of the courts over such an issue. See E. McQuillin, Municipal Corporations \\u00a7 12.93 at 412-17 (3rd ed. rev. Dray 1973).\\n. 327 Mass. 509, 99 N.E.2d 755, 757-58 (Mass.1951).\\n. Roche v. Lamb, 61 Misc.2d 633, 306 N.Y.S.2d 515, 517 (Monroe Co.Sup.Ct.1969) (citation omitted). See also Raynovich v. Romanus, 450 Pa. 391, 299 A.2d 301, 303 (Pa.1973) (councilman may not vote for himself nor may he vote on any matter in which he has a personal or pecuniary interest); Robinson v. Hays, 62 S.W.2d 1007, 1008 (Tex.Ct.Civ.App.1933) (determining election contest is quasi-judicial matter requiring exercise of judicial discretion on the part of those making the determination, thus a candidate for re-election to city council who is a party to an election contest cannot participate in official capacity in determining validity of election).\\n.During the course of the hearing on plaintiffs', appellants herein, motion for a temporary restraining order, counsel for the City of North Pole and the City Clerk stated:\\nYour Honor, the city understands that if the plaintiffs are successful after the election is held, that the election would be a nullity, at least as to the seats that they filed for; and that a new election would have to be held. .\\nAgain, at the hearing on the motion for a preliminary injunction, counsel for the defendants, appellees here, said:\\nWe still maintain that we are prepared, if either of these plaintiffs are found by the court to have been illegally deprived of the right to run for office, to have an election for that seat that they desired to run for.\\n. Should any member of the City of North Pole electorate wish to challenge the City Clerk's determination, the proper fashion is by means of a suit filed against the City Clerk to compel removal of Mr. Miller's name from the list of eligible candidates. In the event that such a challenge is made on the basis of Mr. Miller's failure to satisfy the residency requirement of Section 2.2(a) of the North Pole Home Rule Charter, we note at this time our agreement with the trial court's finding that AS 15.05.020(10) does not apply to municipal elections. That section, pertaining to state elections, provides that the address of a voter which appears on his official voter registration card is presumptive evidence of the person's voting residence.\\n. Since City Council positions are for a term of three years, the relief granted is in no sense illusory. We note again that such relief applies only to Mr. Miller, the case being moot with regard to Mr. Jenkins.\"}"
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+"{\"id\": \"10549764\", \"name\": \"Calvin B. TRUMBLY, Appellant, v. STATE of Alaska, Appellee\", \"name_abbreviation\": \"Trumbly v. State\", \"decision_date\": \"1973-11-09\", \"docket_number\": \"No. 1737\", \"first_page\": \"707\", \"last_page\": \"710\", \"citations\": \"515 P.2d 707\", \"volume\": \"515\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T20:33:28.854173+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before RABINOWITZ, C. J., and CONNOR and BOOCHEVER, JJ.\", \"parties\": \"Calvin B. TRUMBLY, Appellant, v. STATE of Alaska, Appellee.\", \"head_matter\": \"Calvin B. TRUMBLY, Appellant, v. STATE of Alaska, Appellee.\\nNo. 1737.\\nSupreme Court of Alaska.\\nNov. 9, 1973.\\nOlof Hellen and Bryan Timbers, Asst. Public Defenders, Herbert Soli, Public Defender, Anchorage, for appellant.\\nDaniel W. Hickey, Asst. Atty. Gen., John E. Havelock, Atty. Gen., Juneau, for appellee.\\nBefore RABINOWITZ, C. J., and CONNOR and BOOCHEVER, JJ.\", \"word_count\": \"1635\", \"char_count\": \"10110\", \"text\": \"OPINION\\nRABINOWITZ, Chief Justice.\\nAfter having initially been charged with a felony, appellant Trumbly pled guilty to the misdemeanor offense of simple assault. Thereafter, Trumbly was sentenced to 120 days imprisonment. Service of this period of incarceration was suspended and appellant was placed on probation for a period of two years. Among the conditions of probation which were imposed, Trumbly was required to report periodically to his probation officer and was prohibited from leaving a designated geographical area without prior consent of this officer.\\nShortly after imposition of sentence, Trumbly failed to report as required and left the State of Alaska without having obtained the requisite approval. The probation service then moved to revoke Trum-bly's probation. A revocation hearing was held at which Trumbly personally appeared and was represented by counsel. During the course of the hearing, Trumbly admitted that he had not reported as required, and that he had departed the State of Alaska without approval of his probation supervisor. Trumbly's defense to the effort to revoke his probation was that of insanity. It was Trumbly's position that he suffered from a mental disease or defect which deprived him of the substantial capacity to conform his conduct to the conditions of probation. At the hearing Trum-bly produced expert psychiatric testimony in support of this defense. No rebuttal or contradictory psychiatric evidence was introduced by the State of Alaska.\\nOne of the arguments advanced by the state in opposition to Trumbly's defense of insanity was that the defense is inappropriate in a probation revocation proceeding. Enlarging on this thesis, the state contends that the purpose of a probation revocation hearing is not to adjudicate criminal responsibility, and that it is not necessary to show the probationer acted with any particular mens rea in violating the conditions of his probation. Thus, the state would have us conclude that the defense of insanity is not available in a probation revocation hearing since this type of proceeding has been traditionally limited to adjudication of guilt or criminal responsibility.\\nAt the conclusion of the revocation hearing, the superior court decided that Trum-bly's probation should be revoked. Trum-bly was then sentenced to six months incarceration, execution of the sentence was suspended and Trumbly placed on probation. A condition of probation was that Trumbly was to serve 30 days in a correctional facility. Trumbly now brings this appeal from the superior court's revocation of his probation.\\nTaking a narrow view of the case, the superior court's revocation order could be affirmed on the ground that, as trier of the fact, the superior court was not bound to accept Trumbly's expert psychiatric testimony. In other words, it was within the exclusive province of the trial judge, as fact determiner, to evaluate Trumbly's psychiatric testimony and to accord to it such weight as he deemed appropriate. Thus, assuming the defense of insanity is available in a probation revocation hearing, we believe the trial judge could reasonably have discounted Trumbly's expert testimony, and concluded this evidence was insufficient to put the state to the task of proving Trumbly's sanity at the times he failed to report and departed from Alaska without permission.\\nOn the other hand, we think the short answer to Trumbly's contention is that the defense of insanity is irrelevant to the issues which are to be determined in a probation revocation hearing. At such a hearing, the inquiry is focused on whether the probationer engaged in conduct viola- tive of the conditions under which he was permitted to escape incarceration. We are not persuaded that a probationer should be able to prevail upon an assertion that his probation should not be revoked because mental illness renders him unable to conform his conduct to the terms of his probation. Conformity to reasonable and lawful terms of probation is a prerequisite to the continuation of probationary status.\\nA probation revocation hearing is not a criminal proceeding. The focus of the hearing should be to determine whether the probationer violated one or more of the conditions of his probation and the appropriate disposition in the event it is determined that petitioner violated his probation. In Morrissey v. Brewer, 408 U.S. 471, 479-480, 92 S.Ct. 2593, 2599, 33 L.Ed. 2d 493 (1973) Chief Justice Burger wrote\\n\\\"The first step in a [parole] revocation decision involves a wholly retrospective factual question: whether the parolee has in fact acted in violation of one or more of the conditions of his parole. Only if it is determined that the parolee did violate the conditions does the second question arise: should the parolee be recommitted to prison or should other steps be taken to protect society and improve chances of rehabilitation.\\nThe requirement that probation revocation follow after a showing of \\\"good cause\\\" requires the trial judge to find that continuation of probationary status would be at odds with the need to protect society and society's interest in the probationer's rehabilitation. Revocation should follow violation of a condition of probation when that violation indicates that the corrective aims of probation cannot be achieved.\\nIn Snyder v. State, 496 P.2d 62, 63 (Alaska 1972), we quoted with approval United States v. Feller, 17 Alaska 417, 424, 156 F.Supp. 107, 110 (1957), where it was said:\\nThe trial judge who imposed the sentence has certainly broad discretionary powers to revoke probation, and the probationer may not complain if he has been given ample opportunity to appear before the Court imposing the sentence, and he has 'been permitted to combat the accusation or charges against him and there has been no abuse of discretion on the part of the Court.\\nReview of the record in the instant case leaves us uncertain as to whether or not the trial court's revocation of Trumbly's probation was arbitrary or reflective of a conscientious judgment which served the ends of justice. More particularly we cannot say with the requisite degree of assurance that a conscientious judgment was made by the trial court in committing Trumbly to prison for a period of 30 days. As was noted previously, Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593 33 L. Ed.2d 484 (1972) and Gagnon v. Scarpelli, 411 U.S. 778/36 L.Ed.2d 656 (1973) illuminate the dual nature of a probation revocation hearing. The first facet of such a hearing involves \\\"a wholly retrospective factual question: whether the parolee has in fact acted in violation of one or more conditions of his parole.\\\" In the case at bar it is undisputed that Trumbly acted in violation of the terms of his probation. The second aspect of the probation hearing requires a determination as to the disposition to be made once violation of the conditions of probation are established. Trumbly's mental state at the time of the violation of the terms of his probation as well as at the time of the revocation hearing is relevant to the resolution of the second issue. It is possible that the superior court in fact considered the evidence relating to Trumbly's mental state in reaching its decision to incarcerate Trumbly. .On the other hand, since we find the record lacking in clarity in this regard, we deem a remand appropriate in order to permit the trial court to review its disposition in light of the foregoing.\\nOne other aspect of the case should be mentioned. At oral argument, this court, on its own motion, questioned counsel concerning the validity of the sentence the superior court entered upon its revocation of Trumbly's probation. Specifically, our questioning focused upon the fact that initially Trumbly was sentenced to 120 days imprisonment, service' of which was suspended and Trumbly placed upon probation for a two-year period. In revoking Trum-bly's probation, the superior court imposed a longer period of incarceration than was called for in the original sentence. More particularly, the superior court imposed a sentence of 6 months with all but 30 days suspended upon probation. In view of the fact that Trumbly did not question the legality of this sentence, we think it appropriate that this question be remanded to the superior court for the purpose of permitting the parties to present arguments regarding the validity of the sentence in question, and to permit the trial court to review the sentence it imposed.\\nRemanded.\\nERWIN and FITZGERALD, JJ., not participating.\\n. In Bowker v. State, 373 P.2d 500, 501-502 (Alaska 1962), we said :\\nWe shall not adopt a rule which would treat medical testimony as conclusive merely because it is not disputed by other medical testimony. The jury should be free to make an independent analysis of the facts on which the expert's opinion rests, and thus exercise their historic function of passing on the credibility of the witness.\\n. Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973).\\n. AS 12.55.110.\\n. See DiCerbo, When Should Probation Be Revolted? 30 Fed.Prob., June 1966,' at 11; American Bar Association Project on Standards for Criminal Justice, Standards Relating to Probation \\u00a7 5.1 (Approved Draft 1970). Compare Model Penal Code \\u00a7 301:3 (P.O.D. 1962).\\n.In Snyder v. State, 496 P.2d 62, 63 .(Alaska 1972), we further quoted that portion of the Feller case where the court said:\\nWhat is required in such hearings is the exercise of conscientious judgment, and not arbitrary action; that the discretion of the Court has not been abused; and that the facts revealed at the hearing satisfy the Court that the modification or revocation of the sentence, or a part thereof, will serve the ends of justice.\"}"
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+"{\"id\": \"10551848\", \"name\": \"Russell BREESE, Father and next friend of Michael Breese, a minor, Appellant, v. Elmer C. SMITH, Principal, Main Junior High School, George E. Taylor, Superintendent, Fairbanks North Star Borough School District, et al., Appellees\", \"name_abbreviation\": \"Breese ex rel. Breese v. Smith\", \"decision_date\": \"1972-09-11\", \"docket_number\": \"No. 1614\", \"first_page\": \"159\", \"last_page\": \"177\", \"citations\": \"501 P.2d 159\", \"volume\": \"501\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T19:57:08.735744+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before BONEY, C. J\\u201e RABINOWITZ, CONNOR and ERWIN, JJ., and VICTOR D. CARLSON, Superior Court Judge.\", \"parties\": \"Russell BREESE, Father and next friend of Michael Breese, a minor, Appellant, v. Elmer C. SMITH, Principal, Main Junior High School, George E. Taylor, Superintendent, Fairbanks North Star Borough School District, et al., Appellees.\", \"head_matter\": \"Russell BREESE, Father and next friend of Michael Breese, a minor, Appellant, v. Elmer C. SMITH, Principal, Main Junior High School, George E. Taylor, Superintendent, Fairbanks North Star Borough School District, et al., Appellees.\\nNo. 1614.\\nSupreme Court of Alaska.\\nSept. 11, 1972.\\nStephen C. Cowper, Fairbanks, for appellant.\\nCharles E. Cole, Fairbanks, for appel-lees.\\nBefore BONEY, C. J\\u201e RABINOWITZ, CONNOR and ERWIN, JJ., and VICTOR D. CARLSON, Superior Court Judge.\", \"word_count\": \"10766\", \"char_count\": \"66515\", \"text\": \"OPINION\\nRABINOWITZ, Justice.\\nThis appeal requires that we resolve a hair length controversy arising from the enforcement of a junior high school grooming regulation. If the regulation in the case at bar is upheld, the student will be denied a public education unless he conforms his hair style to the regulation's standards.\\nMichael Breese enrolled in the seventh grade class at Main Junior High School in Fairbanks on September 13, 1971, shortly after the fall term had begun. Some three years prior thereto, Elmer C. Smith, principal of Main, had promulgated an unwritten hair regulation which required that male students' \\\"hair must not be down over the ears, over the eyes, . . . [or] over the collar.\\\"\\nFrom the date of his enrollment, the length of Breese's hair violated the school regulation. School officials immediately informed Breese that his hair length was out of conformity with the rule and that his hair would have to be cut. With the knowledge and support of his father, Breese refused to cut his hair to the school standards. Smith suspended Breese from Main on September 21, 1971. Thereafter, Smith recommended to the School Board, Fairbanks North Star Borough School District, that Breese be expelled for wilful disobedience of the hair regulation.\\nOn September 22, 1971, an action in Breese's behalf was commenced in superior court seeking injunctive relief. Five days later, the superior court issued an ex parte temporary restraining order enjoining Smith and the Superintendent of Schools of the Fairbanks North Star Borough School District from denying Breese permission to attend classes until a hearing could be held on Breese's application for a preliminary injunction.\\nOn the evening of October 7, 1971, the School Board convened and held a hearing to consider Smith's recommendation that Breese be expelled. After hearing Smith's testimony and other witnesses called by Smith, no testimony having been adduced in Breese's behalf, the Board accepted the recommendation, and expelled Breese on the following day. Thereafter a hearing on the merits of Breese's application for preliminary injunction was held in the superior court on October 15, 1971. The parties produced conflicting evidence concerning the effects of Breese's hair, the effects of long hair generally, and the causal relationships between long hair, disruptive behavior, and academic performance. The superior court subsequently entered a memorandum opinion and order in which it found the school's hair regulation reasonable, entered judgment against Breese, and dissolved the outstanding temporary restraining order. Breese now appeals the decision of the superior court.\\nInitially, we are confronted with the threshold question of whether this court .possesses appellate jurisdiction to consider the superior court's decision. Breese contends that the lower court's memorandum opinion and order constitute a \\\"final judgment\\\" within the intendment of Rule 6 of the Alaska Supreme Court Rules and AS 22.05.010, and that therefore the jurisdiction of this court is properly invoked. Smith and the School Board, on the other hand, urge that the superior court's decision is not a \\\"final judgment\\\" within the meaning of Rule 6, but rather, is an interlocutory order dissolving an injunction and reviewable only under Rule 23(a). Rule 27 provides that a petition for review must be filed within ten days, or if \\\"good cause\\\" for an extension of time is shown, then within an additional ten day period. Smith and the School Board argue that since review of an interlocutory prder may be obtained only by way of petition for review, and that in the instant case, no such petition was timely filed by Breese, this court lacks appellate jurisdiction and the appeal must be dismissed.\\nWe are persuaded that Breese's interpretation of the superior court's decision is correct. The superior court's memorandum opinion and order constitute a \\\"final judgment\\\" within the meaning of Rule 6. We have in the past interpreted a memorandum opinion as a \\\"final judgment\\\" for purposes of appeal where such opinion \\\"clearly evidences the judge's intent to presently and finally dispose\\\" of the matter pending before him. Here, there is no question that the superior court intended to completely and finally dispose of Breese's complaint for injunctive relief. In its opinion, the superior court did more than merely dissolve the outstanding temporary restraining order; it also considered the parties' claims and evidence, balanced the competing interests in favor of the \\\"orderly management of our schools,\\\" held that the administrative hair regulation is a \\\"reasonable regulation,\\\" and rendered judgment in favor of Smith and the School Board. The superior court, in short, manifested its intention to finally dispose of Breese's claim for relief. We therefore conclude that this court possesses appellate jurisdiction in the case at bar.\\nWe next turn to the merits of this litigation. In regard to this the superior court, in its memorandum opinion and order, stated in part that:\\nThe Board's decision should stand unless it flies in the face of a constitutionally prohibited interference to a citizens [sic] rights. This Court is not persuaded that it has.\\nIn reviewing the superior court's decision, this court is called upon to determine whether the trial court erred in holding that none of Breese's constitutional rights had been violated by the School Board's decision to expel him for wilful disobedience of the hair length regulation in question. Resolution of this issue in turn involves consideration of the question of whether a male junior high school student's decision to fashion his own appearance by adopting a long hair style is constitutionally protected. The trial court found no express constitutional quarantee of the right to wear long hair in school and further concluded that such right could not be found within the parameters of any emerging constitutional notion of \\\"right to privacy.\\\"\\nThe United States Supreme Court has not yet passed on the question of whether a student's personal appearance is constitutionally protected. In the landmark case of Tinker v. Des Moines Independent Community School District, wherein the Supreme Court of the United States held that junior high school students had a right under the first amendment to wear black armbands in school in order to dramatize their opposition to the Vietnam war, the question of hair styles was expressly distinguished. In that case, the Court stated :\\nThe problem posed by the present case does not relate to regulation of the length of skirts or the type of clothing, to hair style, or deportment.\\nSince Tinker, the Supreme Court has consistently declined to consider the matter of school hair regulations and dress code. For example, the Court recently denied a petition for certiorari in Swanquist v. Livingston, thereby leaving a Seventh Circuit decision standing which invalidated a hair regulation. In the same term the Supreme Court's denial of certiorari in Olff v. East Side Union High School District left undisturbed a Ninth Circuit ruling that a public school district's long hair regulation did not violate the first amendment, right to privacy, fundamental liberties or due process rights.\\nThe question of personal appearances in public classrooms is one of the liveliest of current constitutional issues, and the after math of Tinker has witnessed a great proliferation of student-initiated suits in this area. In the absence of a definitive interpretation by the United States Supreme Court on the question of whether students have any constitutionally protected freedom to govern their individual appearances, the various circuits and district courts of the federal judiciary which have considered the matter are in disagreement. Similarly, the decisions of state courts which have considered the issue are also reflective of divergent views.\\nState and federal courts which have invalidated school hair regulations lack uniformity as to the precise nature and source of the students' rights. As a result, a variety of federal constitutional theories have been advanced. Some courts have embraced a first amendment rationale, made applicable to the states under the fourteenth amendment, and have held that long hair is a constitutionally protected form of expression. Others have grounded their opinions on a ninth amendment justification. Under this theory, \\\"re tained rights\\\" under the ninth amendment are binding on the states by virtue of the fourteenth amendment. Still other courts have resorted to the equal protection clause of the fourteenth amendment to invalidate hair regulations for male high school students. Several authorities have struck down hair length regulations as being unconstitutional deprivations of liberty under the due process clause of the fourteenth amendment. The emerging notion of the \\\"right to privacy,\\\" as found within the penumbra of the Bill of Rights mentioned by Justice Douglas in Griswold v. Connecticut, has also been advanced as the constitutional source of a student's right to wear long hair.\\nIn view of the conflict between the circuits in the federal judiciary, and the general lack of consensus among the authorities over federal constitutional theory, counsel for Smith and the School Board urges that this court abstain from deciding whether Breese has any rights under the federal constitution. We are inclined to agree with appellees that in the instant case avoidance of the federal thicket is the better course. We also concur, however, in Judge Breitenstein's observation, made in Freeman v. Flake, that:\\nThe states have a compelling interest in the education of their children. The states, acting through their school authorities and their courts, should determine what, if any, hair regulation is necessary to the management of their schools.\\nThus, whether Breese has a constitutional right to wear long hair and whether the school's hair length regulation is valid will be decided under Alaska's constitution.\\nTwo provisions of Alaska's constitution are relevant in the instant case. First, article I, section 1 affirms that all persons in the state of Alaska are granted certain inherent and natural rights. More precisely, that section states:\\nThis 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.\\nThe second relevant provision is article VII, section 1, which guarantees all children of Alaska a right to public education. This section of Alaska's constitution provides :\\nThe legislature shall by general law establish and maintain a system of public schools open to all children of the State, and may provide for other public educational institutions. .\\nWhile some of the terms of article 1, section 1 parallel the language of various federal constitutional provisions, we have repeatedly held that this court is not obliged to interpret our constitution in the same manner as the Supreme Court of the United States has construed parallel provisions of the federal Constitution. Thus, in the case at bar, although sound analysis requires that we look to the various federal precedents that have interpreted provisions of the federal constitution that parallel Alaska's constitution, we are not necessarily limited by those precedents in expounding upon Alaska's constitution.\\nGiven this backdrop of constitutional interpretation we begin with the established premise that children are possessed of fundamental rights under the Alaska constitution. Moreover, we have previously stated that children's constitutional rights will not be denied in deference to governmental benevolence or popular social theories. Our decisions in RLR v. State and other cases involving constitutional rights of children are in accord with the United States Supreme Court's statement in Tinker that:\\nStudents in school as well as out of school are \\\"persons\\\" under our Constitution. They are possessed of fundamental rights which the State must respect, just as they themselves must respect their obligations to the State.\\nWe hold that under article I, section 1 of the Alaska constitution's affirmative grant to all persons of the natural right to \\\"liberty,\\\" students attending public educational institutions in Alaska possess a constitutional right to wear their hair in accordance with their personal tastes. In reaching this conclusion, we are cognizant of the fact that the term \\\"liberty\\\" is an illusive concept, incapable of definitive, comprehensive explication. Yet at the core of this concept is the notion of total personal immunity from governmental control : the right \\\"to be let alone.\\\" In 1891, the Supreme Court of the United States embraced Judge Cooley's famous definition of \\\"liberty\\\":\\nNo right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law. As well said by Judge Cooley, \\\"The right to one's person may be said to be a right of complete immunity: to be let alone.\\\" (emphasis in the original).\\nMore recently the First Circuit in Richards v. Thurston, held that the right of students to determine their personal appearance is implicit in the liberty assurance of the due process clause. There the court said:\\nWe do not say that the governance of the length and style of one's hair is necessarily so fundamental as those substantive rights already found implicit in the \\\"liberty\\\" assurance of the Due Process Clause, requiring a \\\"compelling\\\" showing by the state before it may be impaired. Yet \\\"liberty\\\" seems to us an incomplete protection if it encompasses only the right to do momentous acts, leaving the state free to interfere with those personal aspects of our lives which have no direct bearing on the ability of others to enjoy their liberty. . . .\\nWe think the Pounding Fathers understood themselves to have limited the government's power to intrude into this sphere of personal liberty, by reserving some powers to the people. The debate concerning the First Amendment is illuminating. The specification of the right of assembly was deemed mere sur-plusage by some, on the grounds that the government had no more power to restrict assembly than it did to tell a man to wear a hat or when to get up in the morning. The x'esponse by Page of Virginia pointed out that even those \\\"trivial\\\" rights had been known to have been impaired \\u2014 to the Colonists' consternation \\u2014 but that the right of assembly ought to be specified since it was so basic to other rights. The Founding Fathers wrote an amendment for speech and assembly; even they did not deem it necessary to write an amendment for personal appearance. We con- elude that within the commodious concept of liberty, embracing- freedoms great and small, is the right to wear one's hair as he wishes. 424 F.2d at 1285 (citations omitted).\\nSimilarly, the Third Circuit reached the same conclusion in Stull v. School Board of Western Beaver Jr.-Sr. H.S.\\nHowever, it is our view that the First Circuit's approach [in Richards v. Thurston] was correct; we therefore prefer to follow it and hold that the governance of the length and style of one's hair is implicit in the liberty assurance of the Due Process Clause of the Fourteenth Amendment.\\nHairstyles have been the subject of great variety and individual taste and have traditionally been left to personal decision; they are the manifestations of our diverse and numerous individual personalities. The United States of America, and Alaska in particular, reflect a pluralistic society, grounded upon such basic values as the preservation of maximum individual choice, protection of minority sentiments, and appreciation for divergent lifestyles. The spectre of governmental control of the physical appearances of private citizens, young and old, is antithetical to a free society, contrary to our notions of a government of limited powers, and repugnant to the concept of personal liberty. It has been observed that \\\"[t]here are few things more personal than one's body and its appearance, and there could be few laws more destructive of the notion that there is a range of decisionmaking within which the individual is autonomous than a rule regulating physical makeup.\\\" Whatever else \\\"liberty\\\" may mean as used in article I, section 1 of the Alaska constitution, we hold that the term at least encompasses the fundamental personal right of students in our public schools to select their own individual hair styles without governmental direction.\\nThis Court takes judicial notice that hairstyles have altered from time to time throughout the ages. Sampson's locks symbolically signified his virility. Many of the Founding Fathers of this country wore wigs. President Lincoln grew a beard at the suggestion of a juvenile female admirer. Chief Justice Hughes' beard furnished the model for the frieze over the portico of the Supreme Court of the United States proclaiming \\\"equal justice under law.\\\" Today many of both the younger and the older generations have avoided the increased cost of barbering by allowing their locks or burnsides to grow to greater lengths than when a haircut cost a quarter of a dollar.\\nWhether hair styles be regarded as evidence of conformity or of individuality, they are one of the most visible examples of personality. This is what every woman has always known. And so have many men, without the aid of an anthropologist, behavioral scientist. psychiatrist, or practitioner of any of the fine arts or black arts.\\nWhile we have concluded that the right of students to fashion their own appearances by wearing their hair in accordance with their own individual preference in public schools is a fundamental constitutional right implicit in the concept of liberty as guaranteed by the constitution of Alaska, we do not hold that such right is absolute. There may be instances in which the state acting through a school administration would be justified in regulating the hair length of its citizenry. We are in accord with the observation made by the court in Bishop v. Colaw that \\\"personal freedoms are not absolute; they must yield when they intrude upon the freedom of others.\\\"\\nGiven our conclusion that a fundamental constitutional right is involved in the case at bar, we next consider the impact of such right on the question of the appropriate standard and burden of proof. In this regard, we have previously held that the state's encroachment upon an individual's constitutional rights is justifiable only upon a showing by the government of a compelling interest. More specifically, in Baker v. City of Fairbanks we indicated that:\\nIf an individual right is vested by the Constitution, the overriding demands of governmental efficiency must be of a compelling nature and must be identifiable as flowing from some enumerated constitutional power.\\nThe compelling interest standard is not a novel requirement in constitutional law, and has often been invoked by the United States Supreme Court in determining the validity of state regulations which violate fundamental federal constitutional rights. The use of this standard of proof is exemplified in Griswold.\\nIn a long series of cases this Court has held that where fundamental personal liberties \\u00e1re involved, they may not be abridged by the States simply on a showing that a regulatory statute has some rational relationship to the effectuation of a proper state purpose. \\\"Where there is a significant encroachment upon personal liberty, the State may prevail only upon showing a subordinating interest which is compelling,\\\" . . . (citations omitted) .\\nWe think the compelling interest standard has merit and should be adopted in cases where a person's individual liberty, as guaranteed by the Alaska constitution, allegedly has been encroached upon. In applying this criterion to the'issues in the case at bar we must determine whether the record disclosed a compelling government interest necessitating the abridgment of the student's constitutionally protected right to fashion his own personal appearance. Once a fundamental right under the constitution of Alaska has been shown to be involved and it has been further shown that this constitutionally protected right has been impaired by governmental action, then the government must come forward and meet its substantial burden of establishing that the abridgment in question was justified by a compelling governmental interest.\\nWe recognize that courts in other jurisdictions have adopted different standards of proof in litigation of this character and have allocated burdens of proof in divergent ways. Some have imposed upon the state a \\\"substantial burden of justification,\\\" under which the state must show the furtherance of an \\\"important or substantial governmental interest.\\\" Other courts have employed the so-called \\\"traditional\\\" equal protection test, and have required that the state merely demonstrate the existence of a \\\"rational basis\\\" for its regulation encroaching upon a student's constitutional rights.\\nSmith and the School Board contend that this court should adopt as an appropriate standard of proof the formula articulated by Justice Harlan in his dissenting opinion in Tinker:\\n. . . I would, in cases like this, cast upon those complaining the burden of showing that a particular school measure was motivated by other than legitimate school concerns. . . .\\nSince we have held that the right \\\"to be let alone\\\" \\u2014 including the right to determine one's own hairstyle in accordance with individual preferences and without the interference of governmental officials or agents \\u2014 is a fundamental right under the constitution of Alaska, we reject the test proposed by Justice Harlan. Adoption of his standard would make this fundamental constitutional right dependent upon the subjective elements of motivation and good faith of school administrators. In short, we think adoption of the compelling interest standard best comports with the kind of ordered liberty which represents the core of Alaska's constitutional heritage and will afford the necessary degree of protection against attempted infringement of the students' individual constitutional right involved in this litigation.\\nBreese established the existence of a fundamental constitutional right and the encroachment thereof by the school hair regulation. We hold that on this record, Smith and the School Board have failed to prove that their interest in promulgating the hair length regulation is compelling. In their attempt to justify the rule, Smith and the School Board produced lay opinion testimony, unsupported by figures or statistics, on the relationships between long hair and disruptive behavior and between long hair and academic performance. That testimony included a few references to specific disturbances involving students with long hair. Absent from the appellee's proof, however, were \\\"hard facts\\\" pertaining to the causal relationship between appearance and behavior. No empirical studies were offered. No testimony from experts such as psychologists or psychiatrists was introduced.\\nInstead, Smith testified that his primary objection to long hair being worn by male students was that it was a deviation from the norm of appearances and caused distractions and disruptions within the school system. He further testified that he believed that good grooming improves personal behavior, that the student with long hair has a poor self-image and consequently his personal behavior is not what it could be, that the long haired student is negative, defensive and in trouble, and that there is a very direct relationship between personal appearance and behavior. Smith also testified that university students with long hair had caused an \\\"excitement\\\" when they visited his school, that he was informed of an instance in which a classroom fight between two boys broke out after one called the other a \\\"pretty boy,\\\" and that he had overheard students who were observing Breese in the hallway say, \\\"isn't he cute\\\" and laugh. A mathematics teacher from Main testified in defendants' behalf and stated that on one occasion, Breese had caused a minor disruption in her class when he got his hair caught in the pins on her bulletin board. The assistant principal of Main testified that in his professional opinion, long haired students are proportionately more of a disciplinary problem than short haired students. He further stated that he believed the long hair of a student could cause a disruption, could become a disciplinary problem. A counselor at Main testified that two boys in her room had caused a disruption by saying that \\\"my hair is longer than yours\\\" and by pulling on each other's hair and fighting. Another counselor from Main, who was also a priest and possessed considerable teaching and administrative experience, testified that when he was a principal at another high school, he experienced more disciplinary problems with students on \\\"hobo day,\\\" a special occasion on which the school dress code was relaxed and students were allowed to wear old clothes. He later admitted, however, that the increased unruly behavior on \\\"hobo day\\\" might have been a function of the holiday atmosphere. He further testified that in his professional opinion, there could be a relationship between long hair and behavior and disciplinary problems. An English teacher at Main testified that the title of the play Hair perhaps has some relationship with an attitude of protest, that long hair on a student interferes with teaching by preventing \\\"eye contact,\\\" and that a student who is constantly flipping his hair back or moving it back out of his eyes creates a distraction. Another English teacher from Main gave her opinion that students' long hair and their behavior \\\"go together.\\\" A teacher testified that \\\"I've had more combs in my classroom lately than I've seen in a chicken yard.\\\" Finally, a juvenile officer of the Fairbanks police department testified that probably more than half of the juvenile males with whom he came into contact had long hair. He acknowledged, however, that \\\"contacts\\\" and \\\"juveniles\\\" were not synonymous, and that the police department kept no figures, percentages or statistics on the length of hair of juvenile offenders.\\nThis evidence offered by Smith and the School Board to justify the hair length regulation, however, was not uncontrovert-ed. Breese offered both lay and expert opinion testimony that rebutted the evidence presented by appellees. Breese's father testified that he wanted his son to have long hair and that he believed his son had a right to wear long hair since the youth was not infringing anyone else's rights. A biology teacher from Lathrop High School testifying in Breese's behalf stated that long haired students did not cause discipline problems, and that they were among the academically superior students who took his advanced biology course. A social studies teacher from Lathrop testified that she could not tell any difference between long and short haired students in deportment, grades, attitude or anything. She further testified that long haired males in her classes did not cause distractions or create disruptions but opined that crew cut males might create a disturbance. A current events and \\\"American Minorities\\\" teacher from Lath-rop testified that she could not see any difference in behavior between the male students in her classes with long hair and those with short hair, and that she did not tend to have more long haired people in her special classes for \\\"underachievers.\\\" A French and social studies teacher from Ryan Junior High gave testimony that she could see no relationship at all between her students' long hair and their behavior. She further testified that the length of a male student's hair had never led to distractions in her class, that long haired stu dents were no better or worse achievers than short haired students, and that long haired students did not give her any more trouble than short haired students. A psychologist who worked in a Fairbanks mental clinic for five years gave her expert opinion that there was no cause and effect relationship between the length of hair and the behavior problems of a child, and that short haired and long haired kids got into trouble with equal frequency. She also testified that her own son, a high school student who wore long hair, was a semi-finalist in the national merit scholarship competition. An assistant professor of education at the University of Alaska, who is a registered psychologist in the state of Alaska, gave his expert opinion that there is no direct causal relationship between hair length and behavior. He further testified that in no case could he actually correlate, let alone find a causative relationship between hair length and personality. Finally, a seventh grade student from Main testified that in the class she shared with Breese, the latter's hair created no distractions and caused no disruptions or talk.\\nWe express no view as to the nature or exact amount of evidence necessary to establish the existence of a compelling state interest. Rather, we conclude only that on the basis of the entire record in the case at bar, Smith and the School Board did not meet the requisite burden of showing a compelling justification for the Main Junior High School hair length regulation. In the absence of any compelling justification, we hold that the school hair length regulation impermissably infringed upon Breese's constitutional right under Alaska's constitution which guaranteed him the liberty of personal choice as to appearance.\\nSeveral courts have found regulations more acceptable where some sort of intra-school \\\"procedure for review of any punishments\\\" has been provided. Similarly, Smith and the School Board argue that the fact that the Board is \\\"democratically elected\\\" acts as a \\\"brake\\\" upon unreasonable and arbitrary actions of schoolmen. In the case at bar the hair regulation was promulgated by a single school official, and was based on his conception of fashion. Even if such a regulation were arrived at and promulgated by a more democratic process, a student's claim to liberty would remain undiminished, for this court is held to a standard of vigilance in the matter of the protection of an individual's constitutional liberties. Protection of personal liberty cannot be left to depend upon the will of the majority for those are antithetical concepts. The tension between the notions of liberty and majority rule is illuminated by Judge Mann in Conyers v. Glenn.\\nThe order appealed from is grounded on the theory that parental authority has been transferred by the will of the majority to the board, and that the board has authority to prescribe the students' dress. The corollary of this proposition is that if these long-haired young, grown to legal age, sufficiently persuade their fellow citizens to elect, by a bare majority, a bare majority of a school board, then that governmental body shall have the authority, by vote of its new majority, to suspend the student who cuts his hair during the term.\\n. We would surmise that many who are not offended in the slightest by the imposition of the collective will on the long-haired boy of today would be early advocates of the short-haired individual's right to be different in a long-haired society.\\nSimilarly, the tension between personal liberty and majority will would not be eliminated by the fact that hair regulations were promulgated by some democratically elected, intra-school body. An attempted justification of this nature was properly rejected by the Seventh Circuit in the very recent case of Arnold v. Carpenter, where the court stated:\\nWe conclude that the democratic process used in adopting the code does not per se justify the denial of [the students'] constitutional right to wear his hair in the mode he chooses.\\nThe superior court's judgment is reversed and the case remanded with directions to enter a judgment in conformity with this opinion.\\nReversed and remanded.\\nBOOCHEVER, J., not participating.\\n. AS 14.30.045 sets forth the statutory grounds for the suspension or denial of admission of a pupil from public schools. More precisely, that enactment provides in relevant part:\\nA school age child may be suspended from or denied admission to the public school which he is otherwise entitled to attend only for the following causes:\\n(1) continued wilful disobedience or open and persistent defiance of reasonable school authority; . . .\\nSuspension and expulsion regulations in effect, but not officially adopted by the School Board, at the time of Breese's ouster, are contained in policy statement number 5110.4, which provides in relevant part:\\n1. Suspension:\\nThe responsibility for suspension rests with the building principals. Suspension shall be for a period of time not to exceed three (3) days. The parent must be notified immediately. A student who has been suspended can be readmitted only after the parents have scheduled a conference with the principal and any necessary members of his staff that are involved with pupil services. Should parents fail to comply and the student remains absent, the parents shall be considered as violators of the Compulsory Attendance Law, and action as dictated by Statute will follow.\\nIf a student fails to correct the conditions that led to his suspension, expulsion may become necessary.\\n2. Expulsion:\\nThe responsibility for expulsion rests with the Board of Education. Expulsion must be recommended by the building principal and the Director of Special Services. A hearing shall be conducted with the parents or guardian to determine the facts regarding pending charges or misconduct. Following such a hearing, the administration will submit its findings, along with recommendations, to the Board of Education concerning all expulsions. Expulsion is for an indefinite period of time, and readmittanee can occur only when it can be established that corrective measures to prevent reoccurrence of the cause have been taken. Readmission from expulsion may be made by the Superintendent of Schools after the parents have met with the school principal and those of his staff working with pupil services. Following such a meeting, the Superintendent of Schools will review the recommendation of the principal and will make a final decision regarding the issue of readmisson. The Board of Education shall be informed regarding all readmissions.\\n. The superior court tried the matter de novo rather than as an appellate tribunal reviewing a determinination of an administrative body. This is made clear by the trial court's remarks made at the preliminary injunction hearing:\\nI believe that this would be in the nature of an action and establish plaintiff's rights under the constitution.\\nLater, at the hearing on the merits, the lower court reiterated his interpretation of the proceedings before him:\\nCourts usually sit in the role of reviewing the record and finding and determining whether there has been a sufficient amount of evidence to support such a finding and is usually not called upon a make an initial judgment in the case. I distinguish this case\\n. Breese's subsequent application for an injunction pending appeal was denied by the superior court on October 29, 1971. After hearing oral argument on the merits of Breese's appeal on December 6, 1971, we issued an order enjoining appellees from denying Breese, on the sole basis of the length of his hair, permission to attend regular classes at Main, pending final determination of this appeal.\\n. Sup.Ct.R. 6 provides :\\nAn appeal may be taken to this court from a final judgment entered by the superior court or a judge thereof in any action or proceeding, civil or criminal, except that the state shall have a right to appeal in criminal cases only to test the sufficiency of the indictment or on the ground that the sentence is too lenient.\\n. AS 22.05.010(a) provides in relevant part:\\nThe supreme court has final appellate jurisdiction in all actions and proceedings. . . . An appeal to the supreme court is a matter of right .\\n. Sup.Ct.R. 23 provides in relevant part:\\nAn aggrieved party may petition this court for review of any order or decision of the superior court, not otherwise appealable under Rule 6, in any action or proceeding, civil or criminal, as follows:\\n(a) From interlocutory orders granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions.\\n. Sup.Ct.R. 27(a) provides:\\nA petition for review shall be deemed in time when it is filed with the clerk of this court within ten (10) days after the making of such order or decision. A justice of this court for good cause shown, may extend the time for filing in such cases for an additional period of ten (10) days.\\n. In Re Mountain View Public Utility District No. 1, 359 P.2d 951, 954 (Alaska 1961).\\n. Assuming arguendo that Smith's and the School Board's characterization of the proceeding below is correct and we have a situation where the order in question lacks finality, we would not be bound to dismiss Breese's appeal. As we said in In Re Mountain View Public Utility District No. 1, 359 P.2d 951 (Alaska 1961) :\\nOur rules provide for review of interlocutory orders, and to prevent hardship and injustice this court on its own motion could treat the appeal as a petition for review and decide the questions presented to the same extent and with the same effect as on an appeal. 359 P.2d at 954. (footnotes omitted).\\n. For purposes of this opinion, we accept the parties' definition of \\\"long hair\\\": hair which falls over a male student's eyes, ears or collar.\\n. In this regard, the superior court stated:\\n(No constitutional provision known to this writer makes reference to hair or any appearance per se as does other rights provisions such as speech, assembly, arms, counsel, incrimination, religion, etc.) . . . Accordingly, even if this court were to accept the right as established, the right must still run the gauntlet of a determination of the reasonableness of the administrative regulation .\\n. 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969).\\n. Id. at 507-508, 89 S.Ct. at 737, 21 L.Ed.2d at 738.\\n. No. 18663 (7th Cir., May 27, 1971), cert. denied, 404 U.S. 983, 92 S.Ct. 445, 30 L.Ed.2d 367 (1971).\\n. 445 F.2d 932 (9th Cir.), cert. denied, 404 U.S. 1042, 92 S.Ct. 703, 30 L.Ed.2d 736 (1972).\\n. King v. Saddleback Junior College District, [also Olff], 445 F.2d 932 (9th Cir. 1971); see also, Jackson v. Dorrier, 424 F.2d 213 (6th Cir.), cert. denied, 400 U.S. 850, 91 S.Ct. 55, 27 D.Ed.2d 88 (1970) ; Breen v. Kahl, 419 F.2d 1034 (7th Cir.1969), cert. denied, 398 U.S. 937, 90 S.Ct. 1836, 26 L.Ed.2d 268 (1970) ; Stevenson v. Board of Educ. of Wheeler County, Georgia, 426 F.2d 1154 (5th Cir.), cert. denied, 400 U.S. 957, 91 S.Ct. 355, 27 L.Ed.2d 265 (1970) ; Ferrell v. Dallas Indep. School Dist., 392 F.2d 697 (5th Cir.), cert. denied, 393 U.S. 856, 89 S.Ct. 98, 21 L.Ed.2d 125 (1968).\\n. Hair regulations have been invalidated by the First Circuit, Richards v. Thurston, 424 F.2d 1281 (1st Cir. 1970) ; the Third Circuit, Stull v. School Board of the Western Beaver Jr. Sr. H. S., 459 F. 2d 339 (3d Cir. 1972); the Fourth Circuit, Massie v. Henry, 455 F.2d 779 (4th Cir. 1972) ; the Seventh Circuit, Breen v. Kahl, 419 F.2d 1034 (7th Cir. 1969), cert. denied, 398 U.S. 937, 90 S.Ct. 1836, 26 L.Ed.2d 268 (1970) ; Swanquist v. Livingston, No. 18663 (7th Cir., May 27, 1971), cert. denied 404 U.S. 983, 92 S.Ct. 445, 30 L.Ed.2d 367 (1971) ; Crews v. Clones, 432 F.2d 1259 (7th Cir. 1970) ; Arnold v. Carpenter, 459 F.2d 939 (7th Cir. 1972) ; and the Eighth Circuit, Bishop v. Colaw, 450 F.2d 1069 (8th Cir. 1971).\\nHair regulations have been upheld by the Fifth Circuit, Ferrell v. Dallas Indep. School Dist., 392 F.2d 697 (5th Cir.), cert. denied, 393 U.S. 856, 89 S.Ct. 98, 21 L.Ed.2d 125 (1968); Wood v. Alamo Heights Indep. School Dist., 433 F.2d 355 (5th Cir. 1970) ; Stevenson v. Board of Educ. of Wheeler County, Georgia, 426 F.2d 1154 (5th Cir.), cert. denied, 400 U.S. 957, 91 S.Ct. 355, 27 L.Ed.2d 265 (1970); Karr v. Schmidt, 460 F.2d 609 (5th Cir.1972); the Sixth Circuit, Jackson v. Dorrier, 424 F.2d 213 (6th Cir.), cert. denied, 400 U.S. 850, 91 S.Ct. 55, 27 L.Ed.2d 88 (1970) ; Gfell v. Rickelman, 441 F.2d 444 (6th Cir. 1971) ; the Ninth Circuit, King v. Saddleback Junior College Dist., 445 F.2d 932 (9th Cir. 1971) ; Olff v. East Side Union High School Dist., 445 F.2d 932 (9th Cir.1971), cert. denied, 404 U.S. 1042, 92 S.Ct. 703, 30 L.Ed.2d 736 (1972); and the Tenth Circuit, Freeman v. Flake, 448 F.2d 258 (10th Cir.1971).\\nSee also, Note, 84 Harv.L.Rev. 1702, 1703 n. 4 (1971).\\n. State court cases in which school hair regulations have been successfully attacked by student litigants include: Komadina v. Peckham, 13 Ariz.App. 498, 478 P.2d 113 (1970); Meyers v. Areata Union High School Dist., 269 Cal.App. 2d 549, 75 Cal.Rptr. 68 (1969) ; Finot v. Pasadena City Bd. of Educ., 250 Cal. App.2d 189, 58 Cal.Rptr. 520 (1967) ; Yoo v. Moynihan, 28 Conn.Sup. 375, 262 A.2d 814 (1969); Conyers v. Glenn, 243 So.2d 204 (Fla.App.1971); Murphy v. Pocatello School Dist. #25, 94 Idaho 32, 480 P.2d 878 (1971); Laine v. Dittman, 125 Ill.App.2d 136, 259 N.E.2d 824 (1970).\\nState court student challenges to hair regulations were unsuccessful in Leonard v. School Comm. of Attleboro, 349 Mass. 704, 212 N.E.2d 468 (1965); Shows v. Freeman, 230 So.2d 63 (Miss.1969).\\n. See generally Note, 84 Harv.L.Rev. 1702 (1971); Comment, 55 Iowa L.Rev. 707 (1971); Goldstein, Reflections on Developing Trends in the Law of Student Rights, 118 U.Pa.L.Rev. 612 (1970).\\n. See, e. g., Breen v. Kahl, 419 F.2d 1034, 1036 (7th Cir. 1969), cert. denied, 398 U.S. 937, 90 S.Ct. 1836, 26 L.Ed.2d 268 (1970) ; Meyers v. Areata Union High School Dist., 269 Cal.App.2d 549, 75 Cal.Rptr. 68 (1969).\\n. See, e. g., Breen v. Kahl, 419 F.2d 1034, 1036 (7th Cir. 1969), cert. denied, 398 U.S. 937, 90 S.Ct. 1836, 26 L.Ed.2d 268 (1970); Komadina v. Peckham, 13 Ariz. App. 498, 478 P.2d 113 (1970); Murphy v. Pocatello School Dist. #25, 94 Idaho 32, 480 P.2d 878 (1971); Laine v. Dittman, 125 Ill.App.2d 136, 259 N.E.2d 824 (1970).\\n. The ninth amendment of the Constitution of the United States provides:\\nThe enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.\\nThe ninth amendment for purposes of constitutional litigation, was recently revived from obscurity by Justice Goldberg's concurring opinion in Griswold v. Connecticut, 381 U.S. 479, 486, 85 S.Ct. 1678, 14 L.Ed.2d 510, 516 (1965).\\n. See, e. g., Ferrell v. Dallas Indep. School Dist., 392 F.2d 697, 705 (5th Cir. 1968) (Tuttle dissenting); Calbillo v. San Jacinto Junior College, 305 F. Supp. 857 (S.D.Tex.1969); Miller v. Gillis, 315 F.Supp. 94 (N.D.Ill.1969) ; Zachry v. Brown, 299 F.Supp. 1360 (N.D. Ala.1967). See generally Note, Long Hair and the Equal Protection Clause: King v. Saddleback Junior College District, 1 U.C.L.A.-Alaska L.Rev. 134 (1972).\\n. See, e. g., Stull v. School Bd. of Western Beaver Jr.-Sr. II. S\\\" 459 F.2d 339 (1972) ; Richards v. Thurston, 424 F. 2d 1281 (1st Cir.1970); Conyers v. Glenn, 243 So.2d 204 (Fla.App.1971); Sims v. Colfax Community School Dist., 307 F.Supp. 485 (S.D.Iowa 1970) ; Griffin v. Tatum, 300 F.Supp. 60 (M.D.Ala.1969); Breen v. Kahl, 296 F.Supp. 702 (W.D.Wis.1969) ; Westley v. Rossi, 305 F.Supp. 706 (D.Minn.1969).\\n. 381 U.S. 479, 484-485, 85 S.Ct. 1678, 14 L.Ed.2d 510, 514-515 (1965).\\n. Crossen v. Fatsi, 309 F.Supp. 114 (D.Conn.1970); Yoo v. Moynihan, 28 Conn.Sup. 375, 262 A.2d 814 (1969); Note, 84 Harv.L.Rev. 1702, 1711 (1971). Similarly some writers contend that such right is one of the \\\"fundamental rights\\\" not explicitly enumerated in the Bill of Rights but located within the \\\"emanations\\\" of those guarantees. See Griswold v. Connecticut, 381 U.S. at 484, 85 S.Ct. 1678, 14 L.Ed.2d at 514-515; Note, supra note 23, at 143-49. Finally, at least one scholar has argued that under a non-constitutional analysis, school boards lack legitimate \\\"power to dictate the length of boys' hair.\\\" Gold-stein, The Scope and Sources of School Board Authority to Regulate Student Conduct and Status: A Non-constitutional Analysis, 117 U.Pa.L.Rev. 373, 400, 422 (1969).\\n. 448 F.2d 258 (10th Cir.1971).\\n. Id. at 261.\\n. Compare the following language of the due process clause of the fourteenth amendment, which provides:\\n[N]or shall any State deprive any person of life, liberty, or property, without due process of law .\\nand the due process clause of the fifth amendment which provides:\\nNo person shall . be deprived of life, liberty, or property, without dun process of law . with the language of the Declaration of Independence:\\nWe hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain inalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.\\n. Specifically in Roberts v. State, 458 P. 2d 340 (Alaska 1969), this court said: [AY] e are not limited by decisions of the United States Supreme Court or the United States Constitution when we expound our state constitution; the Alaska Constitution may have broader safeguards than the minimum federal standards. 458 P.2d at 342-343 (footnote omitted).\\nMore recently, we reiterated this position in Baker v. City of Fairbanks, 471 P.2d 386 (Alaska 1970), stating that: [W]e have recognized that we are at liberty to make constitutional progress in Alaska by our own interpretations, as long as we measure up to the national standards which are required by the United States Supreme Court. It is our duty to move forward in those areas of constitutional progress which we view as necessary to the development of a civilized way of life in Alaska. 471 P.2d at 403.\\nSee also State v. Browder, 486 P.2d 925, 936 (Alaska 1971).\\n. RLR v. State, 487 P.2d 27 (Alaska 1971); see Doe v. State, 487 P.2d 47 (Alaska 1971).\\n. In RLR v. State, 487 P.2d 27 (Alaska 3971), we noted:\\nIf an honest analysis of constitutional requirements leads us to believe that they apply to children, we lack authority to withhold their application in deference to a popular social theory. 487 P.2d at 31 (footnote omitted).\\n. 487 P.2d 27 (Alaska 1971).\\n. 393 U.S. at 511, 89 S.Ct. at 739, 21 L.Ed.2d at 740. IVe note that children have also been accorded constitutional status under the federal Constitution by the United States Supreme Court. Tinker v. Des Moines Indep. Community School Dist.. 393 U.S. 503, 89 S.Ct. 733. 21 L.Ed.2d 731 (1969). Compare In re Gault, 387 U.S. 1, 13, 87 S.Ct. 1428, 18 L.Ed.2d 527, 538 (1967) with Ginsberg v. New York, 390 U.S. 629, 637, 88 S.Ct. 1274, 20 L.Ed.2d 195, 202 (1968). We further cite with approval Judge James E. Doyle's observation:\\nCautious counsel to avoid judicial involvement in serious constitutional issues merely because they concern younger people, in my view, is neither prudent, expedient, or just. It is time to broaden the constitutional community by including within its protections young people whose claim to dignity matches that of their elders. Breen v. Kahl, 296 F.Supp. 702, 708 (W.D.Wis.1969).\\n. See E. Griswold, The Right to be Let Alone, 55 Nw.U.L.Rev. 216 (1960).\\n. Union Pacific Ry. Co. v. Botsford, 141 U.S. 250, 251, 11 S.Ct. 1000, 35 L.Ed. 734, 737 (1891). Justice Douglas amplified this interpretation of \\\"liberty\\\" in Olff v. East Side Union High School Dist., 404 U.S. 1042, 1144, 92 S.Ct. 703, 704-705, 30 D.Ed.2d 736, 737 (1972) :\\nThe, word \\\"liberty\\\" is not defined in the Constitution. But . it includes at least the fundamental rights \\\"retained by the people\\\" . One's lmir style, like one's taste for food, or one's liking for certain kinds of music, art, reading, recreation, is certainly fundamental in our constitutional scheme \\u2014 a scheme designed to keep government off the backs of people.\\n. 424 F.2d 1281 (1st Cir. 1970).\\n. Id. at 1284-1285. The court wont on to make the following observation:\\n. 459 F.2d 339 (3d Cir.1972).\\n. Id. at 347.\\n. In Richards v. Thurston, 304 F.Supp. 449, 451 (1969) Judge Wyzanski noted the following:\\n. 84 Harv.L.Rev. 1702, 1711 (1971). In his dissent in Ferrell v. Dallas Indep. School Dist., 393 U.S. 856, 89 S.Ct. 98, 21 L.Ed.2d 125, denying cert. to 392 F.2d 697 (5th Cir. 1968) Justice Douglas wrote:\\nI suppose that a nation bent on turning. out robots might insist that every male have a crew cut and every female wear pigtails. But the ideas of \\\"life, liberty, and the pursuit of happiness,\\\" expressed in the Declaration of Independence, later found specific definition in the Constitution itself, including of course freedom of expression and a wide zone of privacy. I had supposed those guarantees permitted idiosyncrasies to flourish, especially when they concern the image of one's personality and his philosophy toward government and his fellow men.\\n. In interpreting our constitution as we do today, we are merely fulfilling our judicial obligation enunciated in Baker v. City of Fairbanks, 471 P.2d 386 (Alaska 1970) :\\n[W]e are under a duty, to develop additional constitutional rights and privileges under our Alaska Constitution if we find such fundamental ' rights and privileges to be within the intention and spirit of our local constitutional language -and to be necessary for the kind of civilized life and ordered liberty which is at the core of our constitutional heritage. 471 P. 2d at 402 (footnote omitted.)\\n.The Eighth Circuit observed in part in Bishop v. Colaw, 450 F.2d 1069 (8th Cir. 1971) that:\\nOf the justifications advanced by the school administrators in support of the regulations, only those relating to swimming pool sanitation and shop class safety bear any rational relation to the length of a student's hair. The school administration has failed to show why these particular problems cannot be solved by imposing less restrictive rules, such as requiring students to wear swimming caps or shop caps. 450 F.2d at 1077.\\nWe are also in agreement with Smith's and the School Board's position that:\\nStudents cannot be permitted to attend class with contagious diseases, armed with dangerous weapons, or unclothed. Neither can they be permitted to speak at will.\\n. 450 F.2d 1069 (8th Cir. 1971).\\n. Id. at 1075.\\n. 471 P.2d 386 (Alaska 1970).\\n. Id. at 394.\\n. See, e. g., Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972); Dunham v. Pulsifer, 312 F. Supp. 411 (D.Vt.1970).\\n. 381 U.S. 479, 497, 85 S.Ct. 1678, 14 L.Ed.2d 510, 523 (1965). See also Shapiro v. Thompson, 394 U.S. 618, 638, 89 S.Ct. 1322, 22 L.Ed.2d 600, 617 (1969).\\n. In accord with our holding is the conclusion reached in Note, 55 Iowa D.Rev. 707 (1971) :\\nSince the wearing of long hair may be important to the identity and dignity of students, it should be given consti tutional protection as [a] fundamental interest under the due process clause. If the student's choice of hair style is regarded as an interest entitled to special protection under the due process clause, the state must have a compelling subordinating interest in regulations, and the state must bear a substantial burden of justification. 55 Iowa L. Rev. at 710 (footnote omitted).\\n.See, e. g., Breen v. Kahl, 419 F.2d 1034, 1036 (7th Cir. 1969), cert. denied, 398 U.S. 937, 90 S.Ct. 1836, 26 L.Ed.2d 268 (1970); Crews v. Clones, 432 F.2d 1259, 1263 (7th Cir.1970).\\nCourts adopting this standard have been defining \\\"substantial burden of justification\\\" in accordance with the language of United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968) :\\n[A] government regulation is sufficiently justified if it is within the constitutional power of the Government ; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. 391 U.S. at 377, 88 S.Ct. at 1679, 20 L.Ed.2d at 677.\\nSee Note, 84 Harv.L.Rev. 1702, 1705 n. 19 (1971).\\n. See, e. g., Miller v. Gillis, 315 F.Supp. 94, 100 (N.D.Ill.1969). Smith and the School Board urge that we adopt a test which would sustain the validity of the hair length regulation if persuaded that such regulation bears a rational relation to a constitutionally permissible objective.\\n. 393 U.S. at 526, 89 S.Ct. at 747, 21 L.Ed.2d at 749 (Harlan dissenting).\\n. We are not unmindful of Justice Bran-d\\u00e9is' warning in Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944 (1928) (dissenting opinion), that good faith and lofty motivations often conceal the greatest danger to liberty.\\nExperience should teach us to be most on our guard to protect liberty when the government's purposes are beneficient. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding. 277 U.S. at 479, 48 S.Ct. at 572-573, 72 L.Ed. at 957.\\n. Ordinarily, the imposition of a new standard and burden of proof by an appellate court necessitates the remanding of a case on appeal for further pi'oceed-ings in conformity with the new test. This sound judicial policy seeks to avoid any unfairness and surprise to the parties. Here, however, it is unnecessary to remand the instant case for further proceedings under the \\\"compelling interest\\\" test since the justifications underlying the remand policy do not exist. Smith and the School Board are not unfairly affected by the instant standard since they have presumably introduced their best available evidence at trial; that is, their case would remain the same and would not vary with different evi-dentiary formulae. Nor are they unduly surprised since Breese initially pleaded the existence and violation of a fundamental constitutional right, and since federal and Alaska authorities have in the past invoked the compelling state interest standard of proof when such rights have been violated. Furthermore, we note that other appellate courts which invalidated hair length regulations have not, as a matter of practice, remanded cases for further proceedings under newly imposed standards of proof. See, e. g., Stull v. School Bd. of Western Beaver Jr.-Sr. H. S., 459 F.2d 339 (3d Cir. 1972); Bishop v. Colaw, 450 F.2d 1069 (8th Cir. 1971); Richards v. Thurston, 424 F.2d 12S1 (1st Cir. 1970); Breen v. Kahl, 419 F.2d 1034 (7th Cir. 1969), cert. denied, 398 U.S. 937, 90 S.Ct. 1836, 26 L.Ed.2d 268 (1970); Laine v. Dittman, 125 Ill.App.2d 136, 259 N.E.2d 824 (1970).\\n. We note that there is a trend in long hair cases towards requiring the production of \\\"hard facts\\\" in order to justify school regulations. One scholar observes that:\\nThese hair and dress cases, as well as Tinker, also exhibit the final and most important trend discussed here: the increasing demand that [a] school administration justify a regulation, not by conjecturing about the adverse consequences to the educational structure without the rule, but by presenting hard foots. Contrary to the beliefs of many people, the courts are not so much saying that the schools cannot act to achieve traditional aims \\u2014 to prevent disruption, for example \\u2014 but they are saying that they will no longer take an administrator's unsupported word that absent a given rule, regulation, or procedure, disruption will take place.\\nGoldstein, Reflections on Developing Trends in the Law of Student Rights, supra note 19, at 617 (emphasis added).\\n. See, e. g., King v. Saddleback Junior College Dist., 445 F.2d 932, 935 (9th Cir.1971).\\n. We agree that courts should not be too quick to interfere with the functions of other public agencies, such as school boards. In this regard we are not unmindful of Epperson v. Arkansas, 393 U.S. 97, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968), where the Supreme Court of the United States per Justice Portas said:\\nJudicial interposition in the operation of the public school system of the Nation raises problems requiring care and restraint. . . . By and large, public education in our Nation is committed to the control of state and local authorities. Courts do not and c\\u00e1nnot intervene in the resolution of conflicts which arise in the daily operation of school systems and which do not directly and sharply implicate basic constitutional values. 393 U.S. at 104, 89 S.Ct. at 270, 21 L.Ed.2d at 234 (footnotes omitted).\\nSee also Conyers v. Glenn, 243 So.2d 204, 209-210 (Fla.App.1971).\\n. In this regard we note our reluctance to adopt a viewpoint that would sustain a hair length regulation because the length of an individual's hair caused the majority or a substantial number of others to be disorderly. As Professor Zecheriah Chaffee, Jr., wrote in Free Speech in the United States (1941) 151-52. it is absurd to punish a person \\\"because his neighbors have no self-control and cannot refrain from violence.\\\"\\n. 243 So.2d 204 (Fla.App.1971).\\n. Id. at 205-206.\\n. Arnold v. Carpenter, 459 F.2d 939 (7th Cir. 1972). See also Bishop v. Colaw, 450 F.2d 1069, 1077 (8th Cir. 1971) (where the dress code had been accepted by the majority of the school community) ; and Massie v. Henry, 455 F.2d 779 (4th Cir. 1972) (where the long hair regulation had been \\\"recommended by a student-faculty-parent committee.\\\"). Compare Wood v. Alamo Heights Indep. Scliool Dist., 308 F.Supp. 551 (W.D. Tex.1970).\\n.459 F.2d at 943.\"}"
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+"{\"id\": \"10562585\", \"name\": \"Floyd NICHOLAS, Appellant, v. STATE of Alaska, Appellee\", \"name_abbreviation\": \"Nicholas v. State\", \"decision_date\": \"1970-12-11\", \"docket_number\": \"No. 1321\", \"first_page\": \"447\", \"last_page\": \"452\", \"citations\": \"477 P.2d 447\", \"volume\": \"477\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T21:49:38.009072+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before BONEY, C. J., and DIMOND, RABINOWITZ, CONNOR and ERWIN, }}\\u25a0\", \"parties\": \"Floyd NICHOLAS, Appellant, v. STATE of Alaska, Appellee.\", \"head_matter\": \"Floyd NICHOLAS, Appellant, v. STATE of Alaska, Appellee.\\nNo. 1321.\\nSupreme Court of Alaska.\\nDec. 11, 1970.\\nDavid Backstrom, Asst. Public Defender, Fairbanks, for appellant.\\nThomas Keever, Asst. Dist. Atty., Fairbanks, for appellee.\\nBefore BONEY, C. J., and DIMOND, RABINOWITZ, CONNOR and ERWIN, }}\\u25a0\", \"word_count\": \"2714\", \"char_count\": \"16240\", \"text\": \"OPINION\\nERWIN, Justice.\\nThis is an appeal from a sentence of two years' imprisonment imposed on appellant for his conviction upon his plea of guilty to the crime of sale of marijuana in violation of AS 17.12.110.\\nIn the recent case of State v. Chaney, 477 P.2d 441 (Alaska 1970), this court noted that the following objectives are included within the goals of Alaska constitutional provisions concerning penal administration :\\nWithin the ambit of this constitutional phraseology are found the objectives of rehabilitation of the offender into a noncriminal member of society, isolation of the offender from society to prevent criminal conduct during the period of confinement, deterrence of the offender himself after his release from confinement or other penological treatment, as well as deterrence of other members of the community who might possess tendencies toward criminal conduct similar to that of the offender, and community condemnation of the individual offender, or in other words, reaffirmation of societal norms for the purpose of maintaining respect for the norms themselves, (footnote omitted).\\nTo make a reasoned sentence decision, the sentencing judge must determine the priority and relationship of these objectives in any particular case.\\nWhile unjustifiable disparities in the sentencing of criminal offenders may be a serious problem to many observers of the criminal process, the key word is \\\"unjustifiable\\\", for reasonable disparity is necessary to achieve the purposes of sentencing. Some range of sentencing alternatives must be provided to allow adjustment for the special facts of each crime as well as the record and character of each convicted individual.\\nIt should be clear at the outset that the standard of review concerning the exercise of sentencing discretion by the trial judge requires of necessity a broad view, for it is not the purpose of appellate review to enforce uniformity or to chill initiative on the part of the trial judge in attempting to arrive at a proper sentence. As explained by Judge Lawrence E. Walsh, an opponent of sentence review, there is a possibility of harm from the very act of review itself in that all judges may attempt to arrive at a happy medium rather than attempting through the personal initiative, experience and training peculiar to trial judges to formulate a program best suited to the individual in view of his background and the nature of the crime. '\\nThis court recognizes that the primary responsibility for sentencing must remain with the trial judge. The objectives of sentence review will be achieved only if the sentence that is initially fixed is based on the conscientious effort of the trial judge to arrive at the sentence which best suits the case at hand.\\nBut respect for the discretion of the trial judge will not prevent this court from making our own examination of the record and we will modify the sentence if we are convinced that the sentencing court was clearly mistaken in imposing the sanction it did.\\nIn the case at bar, appellant was indicted in March of 1969 on two counts: Count I alleging the sale of marijuana and Count II the sale of LSD. The appellant pled guilty to sale of marijuana and the second count was dismissed. While appellant had no prior convictions, there is an indication in the presentence report that he had psychiatric problems and the probation officer, the district attorney, and the defense counsel all agreed on a recommended sentence of probation provided that the appellant be given psychiatric counseling and that the appellant maintain employment or full-time school.\\nThe appellant was 22 years of age at the time of sentencing, had been born near Galena, Alaska, and had resided in a series of foster homes almost from the time that he had been 3 years old until he had reached the age of majority. The appellant had done sufficiently well in high school to obtain a Bureau of Indian Affairs scholarship to the University of Alaska where his record can only be characterized as spotty. He flunked out of the University of Alaska in two separate occasions, but was able to complete approximately 27 credit hours of course work.\\nThe appellant spent the first half of the year 1968 in and around the Fairbanks area working at janitorial work and firefighting in the summer and living with friends and acquaintances for short periods of time. In September of 1968 he again returned to the University of Alaska on a probationary basis and was supported by the Bureau of Indian Affairs for the third time but was not able to procure the necessary average to remain at the University of Alaska. After the time of the offense herein, the appellant was living in an apartment by himself which was paid for by the Bureau of Indian Affairs and he was working for the University of Alaska as a fire watch guard in the new library, a position which was obtained through the assistance of the probation office. Previous to this period of time, after leaving the University, the subject had been floating around, staying at different friends' homes, borrowing money and not working.\\nThe employment history of the defendant is very inconsistent. He showed very little responsibility, often failing to show up on time or notify his employer when he was unable to come to work, and as a result was unable to continue for any period of time in any job.\\nThe offense in question here was committed on March 1, 1969, at 1:15 a. m. at the International Coffee Shop in Fairbanks. Nicholas approached the table at which his employer at that time, Charles Gilford, Investigator McCoy of the Alaska State Troopers, Investigator Robert Lee, and Investigator Joseph Turner were seated. The conversation was at first general and then switched to narcotics in the Fairbanks area and the appellant stated that he could get any kind of narcotics they wanted. He was asked if he could get some hashish and he replied that he had some on him and he reached into his left pocket and pulled out a substance which later proved to be marijuana. A sale was consummated for $10 and the substance changed hands. Nicholas was then asked by Investigator Robert Lee if he could get acid and, Nicholas replied, \\\"Sure, do you want some?\\\" The investigator, Lee, asked how much, and Nicholas replied \\\"$2.50.\\\" Upon receipt of the money, Nicholas reached into his pocket and gave him a tablet which he stated was LSD.\\nSeveral different personal references were obtained from Nicholas and were interviewed by the Division of Corrections, and all of the references spoke very highly of him.\\nAt the sentencing hearing on June 12, 1970, all of these facts were brought out at some length and all participants at the hearing, the State, the Division of Corrections and the Public Defender, recommended a sentence of four years to be suspended with the defendant to be placed on probation providing for either steady work or full-time school activity. The court, after considering the whole matter, noted that it did not agree with the conclusion of the report, and pointed out that the offense was a serious one and that there was nothing in the background of the defendant that would indicate that supervised probation would lead the defendant into a realization of the incorrectness of his behavior:\\nWell, I've read the report here \\u2014 the probation officer's report and I \\u2014 I can't agree with the conclusions that it reaches. In the first place, the amount of effort that communities are expending and have been expending for several years in trying to suppress or do what they can to reduce this drug traffic has been intense enough to become matters of common knowledge to almost anybody and I can only conclude that somebody who'd fly dead into the face of something like that must necessarily have little or no respect to the law.\\nI regard it as something more than the \\u2014 actually just the garden variety, the run of the mill, anymore, of our criminal statutes. I don't think this court has the panic in it as to the threat of what drugs are but it was more the attitude of the communities generally that certainly should suggest to anyone of average intelligence and according to this psychiatric report. Doctor examining this young man thought that he was highly intelligent. So I can only conclude that he perceives and did then perceive those things which people normally would do. I'd suggest that in this report that this is just a happenstance, experimental first occasion involvement. I suggest that this is hard for the Court to accept in view of the fact that the matter of drugs comes up and I \\u2014 in the matter of being able to supply them, and have you got any hashish and \\u2014 it just so happens that this defendant had some of that. And do you have any LSD? Well, it just so happens that he had some of that. Well, people just don't go carrying around hashish and LSD and other kinds of drugs, if there were others, and two out of two he was able to supply, in their pockets, spare just as a flyer.\\nI look at the background of this young man, find that he just floated around. He has made three or four attempts to try to stay in school. He's went from job to job to job. I don't find anything there that recommends him. It's for these reasons that I cannot agree with the conclusions reached by the Division of Corrections.\\nIn this particular case, the trial judge felt that the protection of the public, the very nature of the crime itself, the fact that the defendant had in his possession more than one type of drug indicating that this was not a chance transaction, and an existing community problem with sale and possession of dangerous drugs, taken together with the defendant's background which showed neither permanent ties in the community nor any serious desire either to work or to go to school, were sufficient to overcome any possible advantage of probation. It would appear that the trial judge attempted to balance the various factors inherent in sentencing in arriving at a sentence of two years. While the reasons given are less than precise, we are not convinced the trial court was clearly mistaken in imposing the sentence it did. Therefore, the sentence imposed by the superior court is affirmed.\\n. Alaska Const, art. I \\u00a7 12 provides in part: \\\"Penal administration shall be based on the principle of reformation and upon the need for protecting the public.\\\"\\n. 32 F.R.D. 249, 258 (Symposium of Appellate Review of Sentences, 2nd Cir. 1962). See ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Sentencing Alternatives and Procedures, \\u00a7 2.5(c) (Approved Draft 1968) ; Model Penal Code, \\u00a7 2.5, art. 7 (1962).\\n. Note, Appellate Review of Primary Sentencing Decisions: A Connecticut Case Study, 69 Yale L.J. 1453, 1455 (1960) ; Chapter Y, Guides for Sentencing by National Council on Crime and Delinquency (1957).\\n.Weigel, Appellate Revisions of Sentences : To Make the Punishment Fit the Crime, 20 Stan.L.Rev. 405 (1968) ; Mueller and Poole, Appellate Review of Legal But Excessive Sentences: A Comparative Study, 21 Van.L.Rev. 411, 412 (1968); ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Appellate Review of Sentences, \\u00a7 1.2 at 29-30 (Approved Draft 1968) (hereinafter cited as Standards Relating to Appellate Review of Sentences) .\\n. \\\"The answer is that this proposal won't eliminate intemperance; it will eliminate severity. Now it may be, as I've said, that severity is a bad thing. People of good faith can differ on this, but I can tell you that no judge is going to go out on a limb with a heavy sentence, no matter how badly deserved, if he is going to be reviewed and if the outcome of that review can be a conclusion that he's sadistic, that he's vicious or savage, or whatever else you want to call it, even if there's dissenting opinion . It doesn't make a judge willing to go out on a limb the next time. And then there's the other thing. I mean as we moderate and get toward this happy medium and get all these 400 judges, who have their own odd personal ideas about what's good for the community \\u2014 if we get them homogenized and put them down towards the median sentence, Congress will have something to say about this and we'll end up with more mandatory sentences. \\u215c \\\"\\nRemarks of the Hon. Lawrence E. Walsh before the Judicial Conference of the Second Circuit, 32 F.R.D. 276, 281 (1962).\\n. An argument often advanced against appellate review is that the appellate court is in no position to review sentences because it has no opoprtunity to observe the attitude of the defendant and make a personal assessment of his character. The point is, of course, valid in a few cases, especially where there has been a long trial at which the defendant testified. Clearly, the trial judge has had an opportunity which is entitled to weight in reviewing the correctness of that sentence and this is a factor which will be weighed by the appellate court in review in those particular cases. Unfortunately, there is often little opportunity in the great majority of cases for the sentencing judge to observe the demeanor of the defendant where he pleads guilty, for such contacts are limited in time and scope and both the sentencing and reviewing court are in a similar position. See Note, Ap-plate Review of Primary Sentencing Decisions : A Connecticut Case Study, 69 Yale L.J. 1453,1465, nn. 65 & 66 (1960) ; Sobeloff, The Sentence of the Court: Should There Be Appellate Review, 41 ABA J. 13 (1955).\\n. See State v. Chaney, 477 P.2d 441 (Alaska 1970). The background of AS 12.55.-120 is expressed by the Alaska State Legislature in the House Judiciary Committee Report which specifically notes broad powers of review:\\nThis bill draws on the concepts for appellate review of criminal sentences contained in proposed federal legislation. Such legislation is expected to .be enacted into law during the 1969 session.\\nThe majority of the courts have held that where a sentence imposed by a trial judge is within the limits prescribed by statute and otherwise legal, an appellate court cannot review the discretion of the trial judge exercised in determining the sentence, even though it may appear in retrospect to have been too severe or too lenient.\\nEnactment of House Bill No. 281 would provide the jurisdiction and substantive guidelines required to provide for appellate review of sentences in Alaska. The supreme court of Alaska would promulgate detailed rules of procedure providing for the preparation and forwarding of the record, hearing procedures, etc. In general, it is expected that these rules would be identical with those proposed to implement the federal legislation. \\u215c\\nJudiciary Comm. Report on House Bill 281, Journal of the Alaska House of Representatives at 665 (1969).\\nAt the time that the Alaska act was passed, two rather comprehensive studies of appellate review of sentences had been undertaken, see Standards Relating to Appellate Review of Sentences (Tentative Draft 1967); Standards Relating to Appellate Review of Sentences (Approved Draft 1968), and at least two federal sentencing conferences had been held. See Sentencing Institute, Ninth Circuit, 39 F.R.D. 523 (1965); Sentencing Institute, Second Circuit, 41 F.R.D. 467 (1956). The standards thus proposed and which apparently were adopted by the legislature of Alaska in promulgating AS 12.55.120 provided for an independent review of the record to ascertain whether or not a sentence is clearly mistaken. See Standards Relating to Appellate Review of Sentences, \\u00a7 3.1 (Approved Draft 1968).\\n. The trial judge did not discuss the relative merit of probation and imprisonment for rehabilitation purposes, or the likelihood of further criminal conduct by the appellant. While some of this information may be inferred from the record, it would be helpful to this court in reviewing sentences that these areas be specifically discussed by the sentencing judge.\"}"
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+"{\"id\": \"10563164\", \"name\": \"GREATER ANCHORAGE AREA BOROUGH and State of Alaska, Petitioners, v. PORTER AND JEFFERSON, Respondent\", \"name_abbreviation\": \"Greater Anchorage Area Borough v. Porter & Jefferson\", \"decision_date\": \"1970-05-22\", \"docket_number\": \"No. 1285\", \"first_page\": \"360\", \"last_page\": \"360\", \"citations\": \"469 P.2d 360\", \"volume\": \"469\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-11T02:39:36.347012+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before DIMOND and RABINOWITZ, JJ., and FITZGERALD, Superior Court Judge.\", \"parties\": \"GREATER ANCHORAGE AREA BOROUGH and State of Alaska, Petitioners, v. PORTER AND JEFFERSON, Respondent.\", \"head_matter\": \"GREATER ANCHORAGE AREA BOROUGH and State of Alaska, Petitioners, v. PORTER AND JEFFERSON, Respondent.\\nNo. 1285.\\nSupreme Court of Alaska.\\nMay 22, 1970.\\nSheila Gallagher, Eric Wohlforth, of McGrath & Wohlforth, and John Have-lock, of Ely, Guess, Rudd & Havelock, Anchorage, for petitioner Greater Anchorage Area Borough.\\nCharles K. Cranston, Asst. Atty. Gen., Anchorage, for intervenor-petitioner State of Alaska.\\nWill Key Jefferson, Anchorage, for respondent Partnership.\\nBefore DIMOND and RABINOWITZ, JJ., and FITZGERALD, Superior Court Judge.\", \"word_count\": \"194\", \"char_count\": \"1291\", \"text\": \"PER CURIAM.\\nPorter and Jefferson, a partnership, instituted this action challenging the existence of the Greater Anchorage Area Borough. The partnership has been represented throughout by Will Key Jefferson.\\nThe superior court denied the Borough's motion to dismiss. Review has been sought, and oral argument was heard May 2, 1970. Review is granted.\\nThe partnership of Porter and Jefferson has concededly paid no taxes and does not appear on the assessment rolls of the Borough. For this reason the partnership of Porter and Jefferson has no standing.\\nThe order of the superior court is reversed and the case remanded to the superior court with directions to enter an order dismissing the action.\\nBONEY, C. J., and CONNOR, J., not participating.\"}"
\ No newline at end of file
diff --git a/alaska/10568315.json b/alaska/10568315.json
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+"{\"id\": \"10568315\", \"name\": \"William P. STANLEY, d/b/a Alaska Traffic Consultants and Sea-Land Service, Inc., Appellants, v. FABRICATORS, INC., Appellee\", \"name_abbreviation\": \"Stanley v. Fabricators, Inc.\", \"decision_date\": \"1969-10-06\", \"docket_number\": \"No. 1061\", \"first_page\": \"467\", \"last_page\": \"475\", \"citations\": \"459 P.2d 467\", \"volume\": \"459\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T21:34:23.391338+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before NESBETT, C. J., and DIMOND, RABINOWITZ, BONEY and CONNOR, JJ-\", \"parties\": \"William P. STANLEY, d/b/a Alaska Traffic Consultants and Sea-Land Service, Inc., Appellants, v. FABRICATORS, INC., Appellee.\", \"head_matter\": \"William P. STANLEY, d/b/a Alaska Traffic Consultants and Sea-Land Service, Inc., Appellants, v. FABRICATORS, INC., Appellee.\\nNo. 1061.\\nSupreme Court of Alaska.\\nOct 6, 1969.\\nAllen McGrath, Anchorage, for appellants.\\nCharles E. Tulin, Anchorage, for ap-pellee.\\nBefore NESBETT, C. J., and DIMOND, RABINOWITZ, BONEY and CONNOR, JJ-\", \"word_count\": \"4431\", \"char_count\": \"27287\", \"text\": \"NESBETT, Chief Justice.\\nWe are required in this appeal to apply a number of provisions of the Uniform Commercial Code in determining the validity of two attachments of equipment. A detailed statement of pertinent facts must necessarily precede any discussion of the legal issues raised.\\nAppellee Fabricators, Inc., an Oregon corporation, leased certain dough manufacturing equipment to Pelton's Spudnuts, a Utah corporation located in Salt Lake City, Utah. Pelton's then subleased the same equipment to Foodcrafters, Inc., an Alaska corporation, which used the equipment to manufacture dough products for sale in the Anchorage area of Alaska.\\nThe terms of the leases were identical except that the lease between appellee and Pelton's provided that if Pelton's exercised its option to cancel the lease because of an average decrease in demand for the manufactured products, that Pelton's should give a 30-day written notice and crate and ship the equipment to appellee at Seattle. Each lease stated that, \\\"This is a contract of rental only and not a sale, conditional or otherwise.\\\" The period was for 60 months at a rental of $1,288 per month (preamble) and each lease stated that:\\nLessee shall have the option to purchase said equipment and personalty during the term of his lease for a cash price of $58,000.00 less 75% of all sums paid as rental herein.\\nDuring the terms of the leases and in February of 1968, Foodcrafters, Inc. lost its contract to supply the military base in Anchorage. On March 4, 1968, Lyndon Sikes, President of Foodcrafters, called in representatives of Sea-Land Sales of Alaska and informed them that the equipment was to be shipped back to the continental United States and requested their inspection and advice. The evidence established that Sea-Land Sales of Alaska, a corporation, was the exclusive sales agent for Sea-Land Service, Inc., a Delaware incorporated water carrier, and for Sea-Land Freight Service, Inc., a motor carrier. Sea-Land Sales shared the same office space and accounted to Sea-Land Service, Inc., but was not a subsidiary of that corporation. Sikes advised the Sea-Land Sales representatives that he was going out of business; that the equipment was leased from Pelton's and was to be returned to Seattle and possibly to Utah. Upon returning to their office the representatives of Sea-Land Sales informed Sea-Land Service, Inc. that Food-crafters was going out of business and planned to ship the equipment collect.\\nOn March 8, 1968, Sikes wrote to Pel-ton's advising them that Foodcrafters was going out of business, enclosing estimates on crating from various moving companies and offering to assist in the crating for a fee. On March 15, 1968, Mr. Pelton came to Anchorage with his plant manager and engineer to take charge of dismantling and crating the equipment. Pelton employed A-l Moving and Storage on Sikes' recommendation and worked with them with his assistants in dismantling and crating. Sikes kept the warehouse keys and occasionally assisted. The majority of the work had been completed by the time Pelton departed for Japan on March 17, leaving instructions with A-l to complete the work. A-l completed loading the equipment in the vans furnished by Sea-Land Service, Inc. at Foodcrafters' loading dock. The vans were picked up by Sea-Land Service, Inc. on March 19 and 22 as they.were filled. A-l's invoice listed Foodcrafters as shipper and their bill was sent to Sea-Land Service, Inc., and subsequently to Pelton's. Sea-Land Service, Inc. issued three straight non-negotiable bills of lading, one on March 19 and two on March 22. All were signed by Sikes on behalf of Foodcrafters as consignor with appellee Fabricators, Inc., Seattle, Washington, named as consignee.\\nOn March 25, 1968, Sea-Land Service, Inc. filed suit against Foodcrafters for the sum of $900 alleging a debt past due and attached the Spudnut equipment which was then in its vans in its possession.\\nOn April 10, 1968, Fabricators Inc. assigned \\\"all of its right, title and interest\\\" in its lease with Pelton's to National Oven Products of Washington. On April 23, 1968, Pelton's Spudnuts, Inc. wrote to Allen McGrath, Esq., counsel for appellant, explaining the lease arrangements, advising that the attached equipment belonged to Fabricators, Inc., enclosing copies of the leases, demanding release of the attachment, and advising that Sea-Land Service, Inc. would be held accountable for damages resulting from delay in making shipment. On April 26, 1968, V. Burda, an attorney of Salem, Oregon, wrote to McGrath advising that the attached equipment was owned by appellee Fabricators, Inc.; that Foodcrafters had no interest in the property, and asking to be advised what further action was required in order to release the attachment.\\nOn June 10, 1968, summary judgment was entered against Foodcrafters and in favor of Sea-Land Service, Inc. On June 17, 1968, Fabricators, Inc. filed with the state police and served McGrath with a \\\"Notice of Third Party Claim\\\" with an attached affidavit and copy of the Food-crafters-Spudnuts lease. The district court set the time for hearing as August 15, 1968.\\nOn July 1, 1968, McGrath, acting as attorney for appellant William P. Stanley, sued Foodcrafters in the superior court on an alleged past indebtedness and on July 11, 1968, caused the Spudnut equipment to be again attached. Fabricators, Inc. sought to challenge both attachments and entered the case by filing a complaint in intervention pursuant to Civil Rule 24. Hearing was also set for August 15, 1968, and on motion the cases were consolidated for hearing and trial on that date.\\nAfter hearing some ten witnesses during trial, the trial judge dissolved the attachments of Sea-Land Service, Inc. and William P. Stanley, holding, among other things, that the lease and the sublease were security interests within the meaning of the Uniform Commercial Code, AS 45.05.-002 to 45.05.794.\\nAlthough the .agreements were called leases, the trial court was correct in finding that they were security agreements since they contained provisions conferring the right to purchase the equipment at any time during the 60 month terms of the leases for the sum of $58,000 less 75% of all sums paid as rental at the rate of $1,288 per month. During the last month of the term total rents paid would be $77,-280. Seventy-five per cent of this amount would be $57,960. This indicates that the purchase option could be exercised for $40. Relative to $58,000, this is a nominal consideration and under clause B of AS 45.05.-020(37) demonstrates that the leases in question were in fact security agreements. These facts bring the agreements within the rule of interpretation laid down in United Rental Equipment Co. v. Potts & Callahan Contracting Co. which we adopt.\\nAppellants argue however, that the security interests thus created were never perfected because the interests never attached under AS 45.05.736 which provides that a security interest is perfected when it has attached and when all applicable steps required for perfection have been taken; under AS 45.05.722 which provides that a security interest cannot attach' until there is agreement that it attach and value is given and debtor has rights in the collateral; and AS 45.05.020(3) defining \\\"agreement\\\" as the bargain of the parties in fact as found in their langauge or by implication from other circumstances including course of dealing or usage of trade or course of performance.\\nWe cannot agree. The agreements were entered into on December 1, 1966. Possession of the equipment was delivered to the lessee which transferred it to the sublessee Foodcrafters, which paid .a monthly rental of $1,288 per month for a period of over 14 months until it was forced to cancel the agreement in accordance with an option contained therein. The fact that all of the parties entered into performance of the agreements on the date of execution and continued in faithful performance according to the terms of the agreements for a period of over 14 months is convincing proof that they intended that their respective interests attach upon execution of the agreements. This having been their intent, and value having been given by the lessor and sublessor by delivery of possession of the equipment and by the sublessee by the faithful payment of rental, and the sub-lessee having acquired a contingent equity in the equipment, it follows that the security interests of the parties had attached under the above quoted provisions of the Uniform Commercial Code. The fact that the witness Burda was the only witness who testified that it was his intent that a security agreement be created is not controlling in view of the fact that the agreements were unequivocally worded to create immediate rights and liabilities in the parties, and of the intent which can be otherwise implied from the circumstances of their subsequent conduct.\\nAppellants' next point is that appellee did not perfect its security interest by taking possession of the equipment.\\nIt was conceded at trial that appellee did not file the financing statement provided for in the Uniform Commercial Code but it was contended by appellee that it had perfected its security interest in the equipment by assuming possession under the provisions of AS 45.05.734 which provides that a financing statement must be filed in order to perfect a security interest except when possession of the collateral is in the secured party.\\nWe decide that the trial court was correct in holding that appellee's security interest was perfected by possession of the collateral. Under the terms of the agreement between appellee and Spudnut, upon notification of Spudnut by Foodcrafters that it was exercising its option to cancel, Spudnut had the obligation to crate and ship the equipment to appellee at Seattle Washington. As Pelton of Spudnut and his assistants, acting as the agents of Fabricators, assisted by A-l Moving, dismantled and removed the equipment from Foodcrafters' building, to which Sikes of Foodcrafters retained the key, and placed it in Sea-Land's vans, the security interest of Fabricators became perfected under the provisions of AS 45.05.734(a) (1). By the time Pelton departed Anchorage on March 17, 1968, most of the equipment had been removed from the building and placed in vans. The balance of the removing and loading was performed by A-l Moving at Pelton's direction and was completed by March 22, 1968. It follows from these facts that appellee's security interest was perfected at the time Sea-Land Service, Inc.'s attachment of March 25, 1968, and Stanley's attachment of July 11, 1968, issued. The perfection of security interest thus attained was prior to and independent of that which might have been attained by the issuance of non-negotiable bills of lading on March 19 and March 22 which is discussed briefly later in this opinion.\\nAppellants' next point is that the trial court erred in holding that appellants had knowledge of appellee's security interest at the time they caused their attachments to issue.\\nWe agree with the interpretation of the facts made by the trial court when it found :\\nMr. Lyndon Sykes, [sic] president of Foodcrafters met with Mr. Rude and Mr. Hoehn of Sea-Land Sales of Alaska, Inc. on March 5, 1968 to discuss the shipping arrangements. According to Mr. Hoehn, Sea-Land Sales of Alaska, is not related in the corporate structure to Sea-Land Freight Service, Inc. and Sea-Land Service, Inc., the actual carriers who performed the shipping service. However, he testified that his concern acts exclusively as sales agent for the carriers named and for no others. Mr. Hoehn testified that he was advised by Mr. Sykes [sic] that the latter was going out of business and that he was moving the machinery out for the owners in Salt Lake City. Mr. Rude, district sales manager for Sea-Land Sales of Alaska, Inc., was present at the luncheon meeting with Mr. Sykes [sic]. He said that Mr. Sykes [sic] stated that the equipment was leased and that it was going to be forwarded to Mr. John Urban of Auburn, Washington.\\nAt the luncheon meeting, there was what appears to have been a comprehensive discussion of the details of the shipment\\nMr. Sykes [sic] testified that he had informed Mr. Hoehn and Mr. Rude of the property interest in the equipment which was the subject of the shipment. While Mr. Hoehn and Mr. Rude were not employees of Sea-Land Service, Inc., the attaching creditor, they were employees of Sea-Land Sales of Alaska, Inc., a corporation not owned by the carrier. However the manner in which Sea-Land Sales of Alaska conducted its business, with apparent consent of the carrier, that is, use of the trade name, use of office space in the carrier's building, telephone listing with a group of related companies, and the fact that the sole business of Sea-Land Sales of Alaska, Inc., is the sale and promotion of contracts for the carriage of merchandise for the carrier constitutes such an agency relationship that notice to the sales company must be held to constitute notice to the carrier, or at the very least, the carrier is estopped from denying the agency relationship\\nThus, I find that, through notice given by Mr. Sykes, [sic] and by taking possession of goods by Mr. Pelton, petitioner acquired a perfected security interest prior to plaintiff's attachment\\nAS 45.05.732(a) (2) provides that an unperfected security interest is subordinate to the rights of a person who becomes a lien creditor without knowledge of the security interest and before it is perfected. Since Sea-Land Service, Inc. did receive notice on March 5, 1968, of Pelton's interest in the equipment through its agent Sea-Land Sales, it follows that appellee's security interest was not subordinate to Sea-Land Service, Inc.'s attachment of March 25, 1968.\\nAppellant also argues that a lien creditor's knowledge of a secured party's interest has significance only if the secured party subsequently perfects its security interest. We do not agree. The wording of AS 45.05.732(a) (2) seems to plainly provide that an unperfected security interest shall be superior to the interest of a lien creditor acquired with knowledge of the security interest. It appears to be the intent of the section that only when the lien creditor becomes such without knowledge of the security interest and before the security interest is perfected shall the unperfected security interest be subordinate.\\nAppellant argues that the fact that Sea-Land Service, Inc. may have had \\\"notice\\\" of an existing security interest in the equipment through its agent Sea-Land Sales, is not sufficient to subordinate its lien since AS 45.05.732(a) (2) requires that it have had \\\"knowledge\\\" of the unperfect-ed security interest before it could be held to be subordinate thereto. Appellant relies upon AS 45.05.020(25) which states that\\na person has 'notice' of a fact when (A) he has actual knowledge of it; (B) he has received a notice or notification of it; or (C) from all the facts and circumstances known to him at the time in question he has reason to know that it exists; a person 'knows' or has 'knowledge' of a fact when he has actual knowledge of it.\\nand upon AS 45.05.020(27) which states\\nnotice, knowledge, or a notice or notification received by an organization is effective for a particular transaction from the time when it is brought to the attention of the individual conducting that transaction, and in any event from the time when it would have been brought to his attention if the organization had exercised due diligence.\\nin arguing that since \\\"knowledge\\\" means actual knowledge and since the Sea-Land Sales representatives did not actually advise representatives of Sea-Land Service, Inc. of the unperfected security interest, it did not have \\\"knowledge\\\" within the meaning of AS 45.05.732(a) (2).\\nAppellant cites the official comment of the drafters of the Uniform Commercial Code on what is AS 45.05.020(27) as follows :\\n27. New. This makes clear that reason to know, knowledge or a notification, although 'received' for instance by a clerk in Department A of an organization is effective for a transaction conducted in Department B only from the time when it was or should have been communicated to the individual conducting that transaction.\\nWhat appellant overlooks is that \\\"notice,\\\" as well as \\\"knowledge,\\\" as defined by AS 45.05.020(25), include \\\"actual knowledge\\\" and that during the conversation between representatives of Sea-Land Sales and Sikes of Foodcrafters, Sikes directly informed them that the equipment was owned by Pelton, was leased, and would have to be returned to Seattle or Utah. This amounted to the communication of \\\"actual knowledge\\\" to Sea-Land Sales which was \\\"knowledge\\\" as well as \\\"notice\\\" under AS 45.05.020(25). The knowledge thus obtained by agents of Sea-Land Service, Inc. was of considerable importance in evaluating the payment responsibility of the consignee and should have been communicated to the principal corporation immediately upon their reporting on the results of their call. The fact that the agents only passed on \\\"limited information\\\" to their principal does not prevent imputing the \\\"knowledge\\\" they obtained to their principal.\\nAppellant next argues that the trial court erred in holding that appellant Stanley had knowledge of appellee's security interest at the time of his July 11, 1968, attachment.\\nNo error was committed. The letter of April 23, 1968, from Pelton's Spudnuts to Allen McGrath, Esq., who was then counsel for Sea-Land Service, Inc. and later counsel for Stanley, enclosed a copy of the sublease between Pelton's and Foodcraft-ers and explained the lease and sublease arrangement between the parties. The letter pointed out that Foodcrafters had no further interest in the property and that it was owned by appellee. The letter of April 26, 1968, from Burda to McGrath likewise explained the lease arrangement and specifically pointed out that the equipment was owned by appellee and that Food-crafters had no interest in it.\\nThe trial court was correct in holding that the knowledge of the ownership of the equipment and the financial relationship of the parties acquired by Mc-Grath as attorney for Sea-Land Service, Inc. was of such a nature and was acquired under such circumstances that it could have been communicated to Stanley without violating the attorney-client rela tionship which existed between McGrath and Sea-Land Service, Inc., and that such knowledge would therefore be imputed to Stanley. Since Stanley had implied, if not actual, knowledge of appellee's security interest in the equipment at the time his July 11, 1968, attachment issued, the attachment was not valid.\\nSince the matter has not been adequately briefed we shall not attempt to attach significance to the fact that on April 10, 1968, appellee had assigned its interest in its lease with Pelton's to National Oven Products of Washington.\\nAlthough not urged at the trial, appellee has urged on appeal that its security interest was perfected when Sea-Land Service, Inc. issued non-negotiable straight bills of lading while the equipment was in its possession.\\nAppellee relies upon AS 45.05.738(c) which provides among other things that a security interest in goods in the possession of a bailee other than one who has issued a negotiable document for the goods is perfected by the issuance of a document in the name of the secured party.\\nThere is no doubt but that Sea-Land Service, Inc. was a bailee within the definition of that term by AS 45.05.534(a) (1) which states:\\n(1) 'bailee' means the person who by a warehouse receipt, bill of lading, or other document of title acknowledges possession of goods and contracts to deliver them .\\nwhen the equipment in question was loaded in its vans and Sea-Land Service, Inc. issued the non-negotiable bills of lading of March 19 and 22, 1968, naming appellee Fabricators, Inc. as consignee, appellee's security interest would thereby have become perfected if it had not in fact already been perfected as the equipment was removed from Foodcrafters' building and placed in Sea-Land's vans which was accomplished by March 22, 1968.\\nThe last point to consider is appellants' contention that appellee's conduct between the date of the Sea-Land Service, Inc. attachment on March 25, 1968, and the attachment by appellant William P. Stanley, was a dishonest attempt to exert what had been a secret lien in order to defeat a valid attachment and that it did not act in \\\"good faith\\\" as defined in AS 45.-05.020(19). Appellants have not indicated the statutory origin of the claimed obligation of good faith owed to them by appel-lee. AS 45.05.029(19) merely defines \\\"good faith\\\" as \\\"honesty in fact in the conduct or transaction concerned.\\\" AS 45.05.024 states:\\nEvery contract or duty within this chapter imposes an obligation of good faith in its performance or enforcement.\\nAS 45.05.020(11) defines a \\\"contract\\\" as \\\"the total legal obligation which results from the parties' agreement.\\\" AS 45.05.-020(3) defines \\\"agreement\\\" as \\\"the bargain of the parties in fact as found in their language or by implication from other circumstances .\\\" Appellants contend that appellee's bad faith was demonstrated by its failure before trial to specifically claim a security interest rather than under the general terms of its lease. A study of the record does not indicate that appellee had had any intention of misleading appellants. We find no violation of the statute in the facts of this case.\\nThe judgment below is affirmed.\\n. AS 45.05.020(37) provides in part:\\n[A]n interest in personal property or fixtures which secures payment or performance of an obligation unless a lease or consignment is intended as security, reservation of title un der the lease or consignment is not a 'security interest,' whether a lease is intended as security is to be determined by the facts of each case; however, (A) the inclusion of an option to purchase does not of itself make the lease one intended for security, and (B) an agreement that upon compliance with the terms of the lease the lessee shall become or has the option to become the owner of the property for no additional consideration or for a nominal consideration does make the lease one intended for security.\\n. See Comment, Equipment Leasing Under the U.C.C., 13 U.C.L.A.L.Rev. 125, 130-34 (1965), and cases cited therein; 1 G. Gilmore, Security Interests in Personal Property 338 (1965).\\n. 231 Md. 552, 191 A.2d 570 (1963).\\n. AS 45.05.736 states:\\nWhen security interest is perfected; continuity of perfection, (a) A security interest is perfected when it has attached and when all of the applicable steps required for perfection have been taken.\\n. AS 45.05.722 states in part:\\nWhen security interest attaches; after-acquired property; future advances. (a) A security interest cannot attach until there is agreement (\\u00a7 20(3)) that it attach and value is given and the debtor has rights in the collateral.\\n. AS 45.05.020(3) in part states:\\n'agreement' means the bargain of the parties in fact as found in their language or by implication from other circumstances including course of dealing or usage of trade or course of performance as provided in chapter (\\u00a7\\u00a7 28 and 64).\\n. Spivak, Secured Transactions Under the Uniform Commercial Code 33 (1962), published by Joint Committee on Continuing Legal Education of the ABA and ALI; W. Warren, 3 California Commercial Law 41-49 (1966) ; Summers, Secured Transactions Under the Uniform Commercial Code, 42 Ore.L.Rev. 1, 8 (1962).\\n.AS 45.05.734 in pertinent part states:\\nWhen filing is required to perfect security interest; security interests to which filing provisions do not apply, (a) A financing statement must be filed to perfect-all security interests except the following:\\n(1) a security interest in collateral in possession of the secured party under \\u00a7 740 of this chapter.\\nSee also AS 45.05.740 which states in part:\\nWhen possession 6y secured party perfects security interest without filing. A security interest in letters of credit and advices of credit (\\u00a7 506(b) (1)), goods, instruments, negotiable documents, or chattel paper may be perfected by the secured party's taking possession of the collateral. A security interest is perfected by posession from the time possession is taken without relation back and continues only so long as possession is retained unless otherwise specified in \\u00a7 690-794 of this chapter.\\n. Paragraph 11 of the agreement between appellee and Spudnut stated in part:\\nupon said cancellation, and at Lessee's expense, crate the subject equipment and ship same to Lessor at Seattle, Washington.\\n. See U.C.C. \\u00a7' 9-305, c 2 and U.C.C. \\u00a7 9-205, o 6.\\n. See National Bank of Alaska v. Sprinkle, 3 N.C.App. 242, 164 S.E.2d 611, 617 (1968).\\n. AS 45.05.732(a) (2) in pertinent part states:\\nPersons who tahe priority over unper-fected security interests; 'lien creditor.' (a) an unperfected security-interest is subordinate to the rights of \\u215c (2) a person who becomes a lien creditor without knowledge of the security interest and before it is perfected * \\u215e *.\\n. See Bloom v. Hilty, 427 Pa. 463, 234 A.2d 860, 861-64 (1967) and Felsenfeld, Knowledge as a Factor in Determining Priorities Under the Uniform Commercial Code, 42 N.X.U.L.Rev. 246, 255-56 (1967).\\n. AS 45.05.738(c) states:\\nA security interest in goods in the possession of a bailee other than one who has issued a negotiable document for the goods is perfected by issuance of a document in the name of the secured party or by the bailee's receipt of notification of the secured party's interest or by filing as to the goods.\\n. The parties have not briefed and we shall therefore not attempt to consider the question of whether Pelton's assumption of possession of the equipment on March 15, 1968, in response to Foodcrafters' notice of option to cancel the agreement, did not render moot any further consideration of the question of a security interest under the provisions of AS 45.05.786 which states:\\nUnless otherwise agreed, a secured party has on default the right to take possession of the collateral. In taking possession, a secured party may proceed without judicial process if this can be done without breach of the peace or may proceed by action. If the security agreement so provides, the secured party may require the debtor to assemble the collateral and make it available to the secured party at a place to be designated by the secured party which is reasonably convenient to both parties. Without removal, a secured party may render equipment unusable, and may dispose of collateral on the debtor's premises under \\u00a7 788 of this chapter.\\n. See also AS 45.05.040(a) (2) which states: 'good faith' in the case of a merchant means honesty in fact and the observance of reasonable commercial standards of fair dealing in the trade.\"}"
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+"{\"id\": \"10571627\", \"name\": \"UNITED BONDING INSURANCE COMPANY; Stewart & Fritz, Inc.; and Charles A. Stewart and Anita Stewart, Appellants, v. Walter G. CASTLE, d/b/a Castle Company, Appellee\", \"name_abbreviation\": \"United Bonding Insurance Co. v. Castle\", \"decision_date\": \"1968-08-22\", \"docket_number\": \"No. 876\", \"first_page\": \"454\", \"last_page\": \"458\", \"citations\": \"444 P.2d 454\", \"volume\": \"444\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T20:03:10.515510+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before NESBETT, C. J., and DIMOND and RABINOWITZ, JJ.\", \"parties\": \"UNITED BONDING INSURANCE COMPANY; Stewart & Fritz, Inc.; and Charles A. Stewart and Anita Stewart, Appellants, v. Walter G. CASTLE, d/b/a Castle Company, Appellee.\", \"head_matter\": \"UNITED BONDING INSURANCE COMPANY; Stewart & Fritz, Inc.; and Charles A. Stewart and Anita Stewart, Appellants, v. Walter G. CASTLE, d/b/a Castle Company, Appellee.\\nNo. 876.\\nSupreme Court of Alaska.\\nAug. 22, 1968.\\nH. Russel Holland, of Stevens & Holland, Anchorage, for appellants Stewart & Fritz and Charles and Anita Stewart.\\nRichard O. Gantz and Robert C. Erwin, of Hughes, Thorsness & Lowe, Anchorage, for appellant United Bonding Ins. Co.\\nKenneth McCaskey, of Robison, Mc-Caskey & Strachan, Anchorage, for ap-pellee.\", \"word_count\": \"2202\", \"char_count\": \"12801\", \"text\": \"OPINION\\nBefore NESBETT, C. J., and DIMOND and RABINOWITZ, JJ.\\nDIMOND, Justice.\\nThe state contracted with appellant, Stewart & Fritz, Inc., for placing fill for a parkway apron at the Homer airport. Stewart & Fritz made an agreement with appellee, Castle Company, to furnish trucks and a loader for the job. The parties disagreed over the amount due Castle, and the latter brought this suit for recovery of monies due under the agreement.\\nSuit was filed by Castle against appellant, United Bonding Insurance Company, the surety of the payment bond of Stewart & Fritz. United Bonding then filed a third party complaint against Stewart & Fritz which was dismissed when the latter intervened as a defendant in the action. The jury returned a verdict in favor of Castle, and both Stewart & Fritz and United Bonding have appealed.\\nStewart & Fritz Appeal\\nFill was to be hauled by Castle with its trucks from two places, one located about one mile from the job site, referred to as the short haul, and the other, somewhat less than three miles from the job site, referred to as the long haul. There was no dispute as to the number of truck loads hauled to the job site, there being 3,208 short hauls and 2,288 long hauls. The dispute arose over the amount Castle was to be paid for hauling the fill. Stewart & Fritz's version of the agreement was that Castle was to be paid SO cents a yard on the short haul and 90 cents a yard on the long haul, with quantities to be measured after the fill was in place and compacted. On the other hand, Castle's version of the agreement was that he was to be paid $5.00 a load for the short haul and $9.00 a load for the long haul, with quantities to be measured as they were placed in the trucks prior to compaction at the fill site.\\nAccording to Stewart & Fritz's version of the agreement, the total amount due Castle for gravel hauling was $19,829.00. According to Castle's version of the agreement, the total amount due would have been $36,632.00. The jury's verdict reflected that the total recovery attributable to gravel hauling was $32,969.00. This latter figure could be arrived at, Stewart & Fritz contend, only by the jury rejecting both Stewart & Fritz's and Castle's versions of the agreement, and by computing Castle's recovery on the basis of 9 uncompacted yards per truckload, at the price of 50 cents a yard for the short haul and 90 cents a yard for the long haul. Stewart & Fritz argue that since the jury rejected the two theories of the agreement that had been presented by the parties, it was pure speculation on the jury's part and the remaking of the contract to compute Castle's recovery on the basis that the jury appears to have used. In short, the point made by Stewart & Fritz on this appeal is that the verdict and judgment should be set aside because the verdict was contrary to the weight of the evidence.\\nTo hold that the verdict was contrary to the weight of the evidence is equivalent to saying that under the evidence the jury could not reasonably have decided as they did. To reach such a conclusion it would have to appear that evidence to support the verdict was completely lacking or was so slight and unconvincing as to make the verdict plainly unreasonable and unjust.\\nWe cannot reach that conclusion. Castle testified that there was to be paid $5.00 a load for the short haul and $9.00 a load for the long haul. But he also testified that his understanding of the agreement was for SO cents a yard for the short haul and 90 cents a yard for the long haul, and he had converted this into certain amounts for. each load apparently on the basis that each load consisted of 10 yards. The evidence was in dispute as to the number of yards of fill in a truckload. Evidence on behalf of Stewart & Fritz tended to show that each load consisted of 3 loader buckets, and that this amounted to 7 yards of fill. On the other hand, Castle testified that each loader bucket held 3 yards, which would mean that with 3 loader buckets for each load a load would consist of 9 yards.\\nThis evidence, together with Castle's testimony as to the SO cents and 90 cents a yard payments to be made for the short and long hauls, respectively, would mean that the jury had reason for finding that payment was to be made on the basis of 9 yards for each load at the SO cents and 90 cents figures testified to. Furthermore, this also shows an evidentiary basis for a determination that payment was to be made on the basis of uncompacted yardage, i. e., on the basis of the number of yards of loose fill in each truckload. Castle's testimony that payment was to be made on the basis of a certain amount per yard, which he converted into a certain amount for each load, could be construed by the jury as meaning that Castle understood the agreement as contemplating payment on the basis of each truck load of fill before it was dumped at the job site and compacted. Unless this is what Castle understood the agreement to be, there would be no point to his converting the price per yard to a certain sum per load. This could indicate to the jury that Castle understood that payment was to be made on the basis of the number of yards of fill that was contained in a truck at the time the truck was loaded, and not the number of yards of fill after dumping and compaction.\\nThere was an evidentiary basis for the jury's decision, which turned upon disputed facts. We hold that the verdict was not contrary to the weight of the evidence. As to Stewart & Fritz, the judgment must be affirmed.\\nUnited Bonding's Appeal\\nCastle's complaint alleged that United Bonding had \\\"issued a bond on behalf of Stewart & Fritz, Inc. in connection with a contract with the State of Alaska This allegation was admitted by United Bonding in its answer to the complaint. In addition, the complaint alleged that pursuant to statute Stewart & Fritz, as principal, and United Bonding, as surety, had \\\"delivered to [the] State the Performance and Payment bonds, conditioned as required by statute.\\\" This allegation was denied in United Bonding's answer to the complaint on the ground that United Bonding lacked knowledge or information sufficient to form a belief as to the truth of such allegation.\\nAt the close of Castle's evidence, United Bonding's counsel said, \\\"We move for judgment at this time.\\\" No reasons were stated. The court denied the motion. At the close of all the evidence, counsel moved for \\\"dismissal as to United on the basis that this liability is based upon a bond and the bond has not been put into evidence, there's no testimony on the bond. \\\" The court stated: \\\"I'm going to submit the case to the jury I'm going to order the bond to be filed. \\\" After the jury had returned its verdict against Stewart & Fritz and United Bonding, the court reopened the case to permit the introduction in evidence of the original payment bond which had been in the possession of the state. United Bonding's motion for judgment notwithstanding the verdict was denied.\\nOn this appeal United Bonding contends that Castle failed to introduce any evidence as to the execution, delivery and acceptance of the payment bond, and therefore by the time the case went to the jury there had been presented nothing in the way of evidence from which the jury could find that United Bonding was obli gated to Castle as a surety of Stewart & Fritz. For this reason United Bonding contends that the court erred in refusing to grant judgment in its favor. In addition, United Bonding argues that the court, in permitting the introduction in evidence of the bond after the jury had rendered its verdict, denied United Bonding a jury trial on the issues of execution, delivery and acceptance of the bond.\\nIn interrogatories propounded to United Bonding by Castle this question was asked:\\n2. Did you furnish a payment bond for State of Alaska said bond having been executed on February 12, 1965 and signed by Francis Sprague, attorney in fact, and attested by Mary Miller?\\nThe answer of United Bonding was \\\"yes\\\". This constituted an admission by United Bonding that a payment bond had been executed and delivered to the state on the project involved in this action.\\nThe pre-trial order provided in part:\\nThe bonding company, United Bonding Insurance, has claimed for indemnification from the prime contractor and it has been stipulated between the bonding company and the prime contractor that any judgment recovered by the plaintiff against the bonding company may be recovered against the prime contractor.\\nIf there were to be indemnification from Stewart & Fritz to United Bonding on any judgment found against the latter, this implies that there was a principal-surety relationship between the parties, which in turn leads to the conclusion that a payment bond was in effect. In addition, no mention was made in the pre-trial order that execution or delivery or acceptance of the bond was in issue. The purpose of pre-trial is to clearly define all issues to be tried and decided \\u2014 hidden issues or defenses are not to be tolerated. Issues not presented at pre-trial may not be later raised at the trial. United Bonding was precluded from raising an issue as to the execution or delivery or acceptance of the payment bond in question by reason of its failure to raise the issue at pre-trial proceedings.\\nThere is yet another reason why it was unnecessary for Castle to prove by direct evidence the existence of the payment bond. AS 36.25.010(a) requires that before a state contract may be awarded, the contractor must furnish to the state a payment and performance bond. The evidence shows that the state made progress payments to Stewart & Fritz, the prime contractor. Since under the statute just mentioned the awarding of the contract, and necessarily the making of payments under the contract, is conditioned upon the furnishing of a payment and performance bond, it may be concluded from the fact that payments were made under the contract that the required bond had been furnished the state. Such a conclusion is based upon the presumption that official duty has been regularly performed \\u2014 that state officials would not have awarded the contract and made progress payments to Stewart & Fritz had the required bond not been filed.\\nThere was a sufficient basis for the jury to find that United Bonding was obligated to Castle as surety on a payment bond without the necessity of Castle introducing the bond in evidence.' Hence, United Bonding was not denied a jury trial on the issue of the execution, delivery and acceptance of the bond, and the trial court did not err in refusing to grant judgment for United Bonding.\\nThe judgment is affirmed.\\n. At 50 cents a yard for 3,208 short hauls and 90 cents a yard for 2,288 long hauls, using 9 uncompacted yards for each truck load, Castle would have earned $32,969.-00, which is the figure reflected by the jury's verdict.\\n. Alaska Brick Co. v. McCoy, 400 P.2d 454, 457 (Alaska 1965).\\n. Ahlstrom v. Cummings, 388 P.2d 261, 262 (Alaska 1964).\\n. Lumbermens Mut. Cas. Co. v. Continental Cas. Co., 387 P.2d 104, 111 (Alaska 1963).\\n. Blanken v. Bechtel Properties, Inc., 194 F.Supp. 638 (D.D.C.1961), aff'd, 112 U.S.App.D.C. 97, 299 F.2d 928 (D.C.Cir. 1962) ; McCarthy v. Lerner Stores Corp., 9 F.R.D. 31 (D.D.C.1949).\\n. AS 36.25.010(a) provides :\\nBefore a contract exceeding $2,000 for the construction, alteration, or repair of a public building or public work of the state is awarded to a contractor, the contractor shall furnish to the state the following bonds, which become binding upon the award of the contract to that contractor:\\n(1) a performance bond with a corporate surety qualified to do business in the state, or at least two individual sureties who shall each justify in a sum equal to the amount of the bond; the amount of the performance bond shall be equivalent to the amount of the payment bond;\\n(2) a payment bond with a corporate surety qualified to do business in the state, or at least two individual sureties who shall each justify in a sum equal to the amount of the bond for the protection of all persons who supply labor and material in the prosecution of the work provided for in the contract\\n. Irwn v. Radio Corp. of America, 430 P.2d 159, 161 (Alaska 1967).\"}"
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+"{\"id\": \"10575254\", \"name\": \"Arthur Vernon WATSON, Appellant, v. STATE of Alaska, Appellee\", \"name_abbreviation\": \"Watson v. State\", \"decision_date\": \"1966-04-07\", \"docket_number\": \"No. 571\", \"first_page\": \"22\", \"last_page\": \"27\", \"citations\": \"413 P.2d 22\", \"volume\": \"413\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-11T02:39:16.322700+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before NESBETT, C. J., and DIMOND' and RABINOWITZ, JJ.\", \"parties\": \"Arthur Vernon WATSON, Appellant, v. STATE of Alaska, Appellee.\", \"head_matter\": \"Arthur Vernon WATSON, Appellant, v. STATE of Alaska, Appellee.\\nNo. 571.\\nSupreme Court of Alaska.\\nApril 7, 1966.\\nJohn R. Strachan, Josephson & Strachan, Anchorage, for appellant.\\nWarren C. Colver, Atty. Gen., Juneau^ John K. Brubaker, Dist. Atty., Anchorage, for appellee.\\nBefore NESBETT, C. J., and DIMOND' and RABINOWITZ, JJ.\", \"word_count\": \"3054\", \"char_count\": \"18063\", \"text\": \"RABINOWITZ, Justice.\\nAppellant was indicted for the first degree murder of Marion T. Grissom. After trial by jury he was found guilty of murder in the second degree. Appellant appealed and in Watson v. State of Alaska this, court reversed his conviction and remanded, the case for a new trial.\\nAppellant's conviction was reversed because of error committed by the trial court in admitting certain hearsay evidence regarding appellant's temper. At appellant's-first trial the prejudicial hearsay evidence-was received under the following circumstances :\\nA state police officer testified that Mrs.. Watson was in bed when he arrived at the scene. Approximately two hours later, near the end of the police investigation, she came into the living room, saw blood on the floor and asked what it was. When told that it was blood, she asked, 'From what?' She was informed that her husband had shot Grissom. The police officer testified that she then exclaimed,. 'Oh, no', and turning to her husband said, 'It's your temper, your temper has done it again.' Another police officer also testified to essentially the same thing.\\nThis court rejected the state's contention that Mrs. Watson's statement was admissible under the res gestae exception to the hearsay rule. It was further held': that the admission into evidence of this statement of Mrs. Watson was prejudicial error. This conclusion was reached on the basis that:\\nA jury would naturally assume that a wife, more than anyone else, would have a special familiarity with her husband's character and temperament. The purport of Mrs. Watson's statement was that she believed that Grissom had been killed because her husband had lost control of his temper. This aspect was emphasized by the district attorney in his argument to the jury. We cannot say with any degree of assurance that this expression of belief, coming from the lips of Watson's wife, did not cause the jury to entertain grave doubts that Watson was speaking the truth when he said that he had shot Grissom in self-defense. There must be a new trial.\\nUpon remand and retrial of the second degree murder charge, appellant was again found guilty of second degree murder. Appellant appeals from this second conviction.\\nIn the present appeal appellant asserts that the trial court committed error in denying his motion for a new trial once he had shown that members of the jury had read a newspaper article, which appellant characterizes as \\\"prejudicial,\\\" in the jury room before reaching their verdict.\\nThe record discloses that on Friday, November 6, 1964, which was the last day of the trial before the jury was given the case for deliberation, the Anchorage Daily Times printed an article concerning appellant's first trial. This article in its pertinent parts stated that:\\nThe state Supreme Court unanimously reversed the conviction saying Judge Hubert Gilbert's court had erred in admitting hearsay evidence from a state police officer on remarks Watson's wife made when told Watson had killed Gris-som.\\nThe remarks attributed to Mrs. Watson were 'Oh, no, it's your temper, your temper has done it again.'\\nThe Supreme Court ordered a new trial.'\\nApproximately two weeks after the jury had returned its verdict in the second trial, appellant filed a supplemental memorandum in support of a motion for judgment of acquittal or in the alternative for a new trial. In this supplemental memorandum, appellant for the first time brought to the attention of the trial court the possibility that the jury might have read the November 6, 1964, article which appeared in the Anchorage Daily Times before they reached their verdict.\\nSix affidavits from jurors were filed in support of appellant's motion for a new trial. The affidavit of juror Gene R. Jones is one of the more significant of these affidavits. In his affidvait, Mr. Jones stated in part:\\nOn the afternoon of November 6, 1964, I remember going downstairs in the State Court Building and buying an Anchorage Daily Times from the blind fellow who has the concession stand.\\nI took this newspaper back to the jury assembly room as the jury was out of the courtroom on that date from 2:00 P.M. to approximately 4:00 P.M.\\nIn this Anchorage Daily Times newspaper of November 6, 1964, I remember reading an item pertaining to the State of Alaska vs. Arthur V. Watson case.\\nTwo other jurors made affidavits to the same effect as the affidavit of juror Ob-loy.\\nOur review of the record of the second trial, the newspaper article in question, and the jurors' affidavits, convinces us that appellant is entitled to a new trial.\\nIn our recent opinion in West v. State, we alluded to the fact that \\\"It is the overwhelming weight of authority that a juror generally cannot impeach the jury's verdict by his testimony or affidavit.\\\" In> the West case we concluded that the facts-there did not warrant permitting the juror to impeach his verdict.\\nOf significance to this appeal is that portion of our opinion in West v. State ' where Chief Justice Nesbett wrote:\\nExceptions to the general rule have been made and it has been held that the-type of misconduct which may impeach a verdict is fraud, bribery, forcible coercion or any other obstruction of justice. Whether the verdict should be set aside- and a new trial ordered rests in the sound discretion of the trial judge, but generally the verdict should stand unless the evidence clearly establishes a serious violation of the juror's duty and deprives a party of a fair trial.\\nWe hold that appellant's showing in support of his motion for a new trial demonstrates that a case has been made out for an exception to the general rule which prohibits jurors from impeaching their ver- \\u2022diets. 'We are of the further opinion that in view of the record in this case appellant's showing clearly establishes that he was deprived of a fair trial by virtue of the jury's knowledge of the contents of the November 6, 1964, article which appeared in the Anchorage Daily Times.\\nAt the second trial appellant did not .adduce any evidence on his own behalf. .After the state had completed its case in chief appellant rested without offering any evidence. At no point in the transcript of the trial can there be found any reference \\u2022to appellant's temper or to any statement by appellant's wife alluding to appellant's .temper.\\nOn the basis of the showing made by ap-pellant in moving for a new trial, it is reasonable to conclude, and we so find, that \\\"the very same evidence which we found to be erroneously and prejudicially received in the first trial was once again \\u2022erroneously considered by the jury in appellant's second trial.\\nAt the second trial the prejudicial character of this statement of Mrs. Watson's was equally as great. The state's case .against the appellant was primarily based -upon circumstantial evidence. As in the first trial, the issues of whether or not the homicide was justifiable and whether or mot the appellant acted in self-defense were -submitted to the jury. Here the very statement, which by virtue of the law of the case had previously been determined to be inadmissible and prejudicial, was actually before the jury without the knowledge of either the trial court or the respective counsel. Thus none of the traditional .safeguards inherent in the presence and function of the trial judge and the respective opposing counsel were present to counteract this prejudicial and inadmissible hearsay statement of appellant's wife reported in the November 6 newspaper article.\\nOn this issue we think the opinion of the Supreme Court of the United States in Marshall v. United States is apposite. The question in the Marshall case was \\\"whether exposure of some of the jurors to newspaper articles about petitioner was so prejudicial in the setting of the case as to warrant the exercise\\\" by the Supreme Court of its supervisory power to order a new trial. In the Marshall case, petitioner had been charged with unlawfully dispensing a drug in violation of federal law. During the course of the trial, newspaper accounts as to petitioner's prior illegal practice of medicine had reached the jurors. It is also pertinent to note that at the trial the judge had ruled that evidence of petitioner's prior illegal practice of medicine was so prejudicial that it should not be received into evidence.\\nIn a per curiam opinion in Marshall, the Supreme Court stated:\\nThe trial judge has a large discretion in ruling on the issue of prejudice resulting from the reading by jurors of news articles concerning the trial. Holt v. United States, 218 U.S. 245, 251, 31 S.Ct. 2, 6, 54 L.Ed. 1021, 1029, 20 Ann. Cas. 1138. Generalizations beyond that statement are not profitable, because each case must turn on its special facts. We have here the exposure of jurors to information of a character which the trial judge ruled was so prejudicial it could not be directly offered as evidence. The prejudice to the defendant is almost certain jp be as great when that evidence reaches the jury through news accounts as when it is a part of the prosecution's evidence. Cf. Michelson v. United States, 335 U.S. 469, 475, 69 S. Ct. 213, 218, 93 L.Ed. 168, 173. It may indeed he greater for it is then not tempered by protective procedures.\\nIn the exercise of our supervisory power to formulate and apply proper standards for enforcement of the criminal law in the federal courts we think a new trial should be granted.\\nNot unlike the Marshall case, the record of appellant's second trial discloses that the jurors were exposed to \\\"information of a character\\\" which this court had previously held so prejudicial as to require a new trial. Unlike the Marshall case, the trial judge in the case at bar had no opportunity to ascertain the impact of this evidence and to adopt appropriate protective measures before the jury was discharged. The prejudicial circumstances are stronger in this appeal than in the Marshall case. Under our concomitant supervisory power to formulate standards for the enforcement of criminal law in the courts of the State of Alaska, we are of the opinion that the trial court erred in not granting appellant's motion for new trial.\\nAppellant also asserts as error the trial court's failure to grant his motions for judgment of acquittal made after the state had rested its case in chief and renewed after the jury had returned its verdict of guilty of murder in the second degree. We are of the opinion that the trial court correctly denied appellant's motions for acquittal. In Davis v. State, this court adopted the rule that when\\n[Ajppellants are challenging the sufficiency of the evidence to support the verdict and judgment, which is presented by the motions for acquittal, this court may consider only those facts heretofore recited which are most favorable to-the state and such reasonable inferences as the jury may have drawn therefrom.\\nSubsequently in Jennings v. State, we had occasion to again refer to the rule enunciated in the Davis case. In this later opinion we stated:\\nThe 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.\\nViewing the facts and reasonable inferences therefrom in the light most favorable to the state, we are of the opinion that the evidence adduced by the state precluded the granting of appellant's motions for acquittal under the Davis and Jennings tests.\\nIn support of his contention that acquittal should have been granted, appellant also-argues that the state's evidence failed to-exclude every reasonable hypothesis excepting that of guilt. This contention is-disposed of by what we have said above as-to the evidence being sufficient to preclude \\u215b\\u215b granting of appellant's motion for ac\\u2022quittal.\\nFor the reasons above stated, the conviction of appellant is reversed and the cause remanded for a new trial.\\n. 387 P.2d 289 (Alaska 1963).\\n. Id. at 290-291.\\n. Supra note 1, at 291. The state alternatively sought to sustain the admissibility of this evidence on the basis of\\nthe rule that when an accused is silent in the face of an accusatory or inculpa-tory statement, both the statement and the accused's failure to deny its truth are admissible in a criminal action as evidence of acquiescence by the accused in the truth of the statement or as indicative of a consciousness of guilt.\\nIn Watson v. State, supra note 1, at 291-292, this court held that the above rule had no applicability to the facts of the-case.\\n. Supra note 1, at 292.\\n. After remand the trial court concluded that the jury's verdict of guilty as to the second degree murder resulted in an acquittal as to the first degree murder charge.\\n. The trial court denied appellant's motion for a new trial on this ground and sentenced appellant to fifteen years' imprisonment.\\n. This article appeared on page 10 of the November 6, 1964, edition of the Anchorage Daily Times. The headline of the article read \\\"New Watson Trial Begins.\\\"\\n. Mr. Doe P. Dosephson, who was appellant's trial counsel at the second trial, states in an affidavit which he filed in support of appellant's motion for a new trial that:\\nIt was not until several days following the jury verdict that affiant learned from juror, Mary Lou Obloy, by telephone, that the newspaper articles in question had been available to the jurors. That my [sic] reason of this, conversation with Mary Lou Obloy, af-fiant directed F. X. Wirth, Jr. and D. V. (James) Childers, investigators, to inquire of members of the jury panel in this case regarding the newspaper articles in question. That accordingly, af-fiant had no opportunity to bring the question of the newspaper articles and their reading by the jurors to the attention of this court prior to the time the jury was excused to deliberate. I remember that the article stated that the original trial had been declared a mistrial by a higher court due to the allowance of hearsay evidence being introduced. X remember reading that this hearsay evidence was a statement made, I believe, by a police officer that Mrs. Watson had made some statement to the effect that Mr. Watson had an extreme temper. I remember this item being brought up in the jury room and someone making a statement to the effect that most of the testimony we had was hearsay testimony. I don't recall who made this statement. X could have taken this above-mentioned newspaper into the jury room. I do not recall speeifi-eally.\\nJuror Mary Lou Obloy, in her affidavit, stated in part:\\nI also heard someone, I am not certain who it was, say that if Watson took the stand he might lose Ms temper or fly off the handle, or words to that effect.\\n.Juror Lois Turinsky said substantially the same thing in her affidavit. She stated:\\nI distinctly remember hearing the remark from someone that Watson might lose his temper if he took the stand', or words to that effect. I do not remember offhand who made this statement.\\nJuror Adele Kelly, in her affidavit, stated in part:\\nI heard someone say that if Watson went on the stand, he might lose his temper or maybe fly off the handle while he was being questioned. I do not remember exactly who made this statement but I wondered at the time how anyone would know that he had a temper such as this indicated.\\nJuror Prances Prazier's affidavit related that she heard someone say \\\"that the other trial was declared a mistrial because of hearsay evidence.\\\" Juror Martin P. Pliehler's affidavit was to the effect that juror Gene Jones purchased a newspaper on Priday and brought it back to the jury room.\\n. 409 P.2d 847 (Alaska, January 21, 1966).\\n. Id. at 852. Por the policy reasons underlying this rule, we cited McDonald v. Pless, 238 U.S. 264, 267, 35 S.Ct. 783, 59 L.Ed. 1300, 1302 (1915).\\n. Supra note 10, at 852.\\n. Supra note 10, at 852.\\n. AS 11.15.100 provides:\\nThe killing of a human being is justifiable when committed by any person\\n(1) to prevent the commission of a felony upon him, or upon his wife, \\u215d.\\nBesides evidence of physical injuries on the persons of the decedent (other than the fatal bullet wound) appellant and appellant's wife, the record discloses that William Kitchens testified that appellant told him that the decedent \\\"was rapin' his wife, and he shot him.\\\" The former Chief of Police of Kenai, Alaska, testified that appellant told him that Grissom had charged toward him at the time of the shooting.\\n. 360 U.S. 310, 312-313, 79 S.Ct. 1171, 1173, 3 L.Ed.2d 1250, 1252 (1959).\\n. Supra note 15, at 312-313, 79 S.Ct. at 1173, 3 L.Ed.2d at 1252.\\n. 369 P.2d 879, 881 (Alaska 1982).\\n. The rule articulated in Davis, supra, lias been subsequently applied in Bush v. State, 397 P.2d 616, 618 (Alaska 1964); Eaton v. State, 390 P.2d 218, 219 (Alaska 1964); Daniels v. State, 388 P.2d 813, 816 (Alaska 1964); Hanrahan v. City of Anchorage, 377 P.2d 381, 384 (Alaska 1962); Goss v. State, 369 P.2d 884 (Alaska), cert. denied, 371 U.S. 843, 83 S.Ct. 75, 9 L.Ed.2d 79 (1962).\\n. 404 P.2d 652 (Alaska 1965).\\n. Id. 404 P.2d at 654.\\n. In Davis v. State, supra note 17, 369 P.2d at 882, this court held that when the prosecution's case is based on circumstantial evidence it is\\nincumbent upon the state to produce evidence of circumstances which excluded every reasonable hypothesis except that of guilt. In other words, the circumstantial evidence had to be such as to exclude every reasonable theory consistent with Davis' innocence.\\n. Jennings v. State, supra note 19, 404 P.2d at 654.\"}"
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+"{\"id\": \"10575406\", \"name\": \"Phil BIELE, John R. Murphy, Neil Peterson, Frank Sarber, and Norman D. Tate, Appellants, v. STATE of Alaska, Appellee\", \"name_abbreviation\": \"Biele v. State\", \"decision_date\": \"1962-05-29\", \"docket_number\": \"No. 152\", \"first_page\": \"811\", \"last_page\": \"814\", \"citations\": \"371 P.2d 811\", \"volume\": \"371\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T23:47:14.645837+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before NESBETT, C. J., and DIMOND and AREND, JJ.\", \"parties\": \"Phil BIELE, John R. Murphy, Neil Peterson, Frank Sarber, and Norman D. Tate, Appellants, v. STATE of Alaska, Appellee.\", \"head_matter\": \"Phil BIELE, John R. Murphy, Neil Peterson, Frank Sarber, and Norman D. Tate, Appellants, v. STATE of Alaska, Appellee.\\nNo. 152.\\nSupreme Court of Alaska.\\nMay 29, 1962.\\nRobert J. Annis, of Robertson, Monagle, Estaugh & Annis, Juneau, for appellant.\\nJack O\\u2019Hair Asher, Dist. Atty., Juneau, for appellee.\\nBefore NESBETT, C. J., and DIMOND and AREND, JJ.\", \"word_count\": \"1877\", \"char_count\": \"11033\", \"text\": \"DIMOND, Justice.\\nThe appellants are commercial fishermen. After a trial by jury in the district magistrate court, they were convicted of a misdemeanor of taking or attempting to take fish in an area closed to fishing, in violation of the Fish and Game Code of Alaska and regulations of the Alaska Board of Fish and Game. On appeal to the superior court, the convictions were affirmed, and a further appeal has been taken to this court.\\nAppellants urge reversal on two grounds: (1) that their constitutional privilege against self-incrimination was violated; and (2) that a news broadcast of proceedings had at the trial, heard by three members of the jury, was seriously prejudicial.\\n1.S elf-Incrimination.\\nThe events which gave rise to the first point on appeal occurred during the direct examination of Robert Lowe, a witness for the state. As an Assistant Attorney General of Alaska he had investigated the reported fishing violation, and in the course of the investigation questioned each of the appellants. He testified that he told them he was investigating a fishing violation that had occurred during the week of July 17, 1960, that they need not make any statements, that any statements they did make could be used against them as evidence in a court of law, that they were not under arrest, and that if they did not want to answer questions they did not have to. He went on to state what the appellants had told him regarding their presence on the fishing boat SURF during the period July 19, 20 and 21, I960, and then near the close of the direct examination testified as follows:\\n\\\"Q. Now, did you make it absolutely clear to these defendants what violations that you were checking?\\n\\\"A. I told them that we were checking a fishing violation that occurred during the week' \\u2014 the fishing week, of beginning the 18th. Of course, at that particular time we were investigating, I didn't have all the details.\\n\\\"Q: Did you \\u2014 did they understand that they were under suspicion of being interrogated as to this particular violation ?\\n\\\"A. .I'm sure there was no misunderstanding there, because of.some of the statements that they didn't wish to make.\\n\\\"Q. Did any of them\\u2014\\n\\\"MR. ANNIS: I beg your pardon?\\n\\\"A. (By Mr. Lowe) I said that I am sure that there was no misunderstanding because of some of the statements that \\u2014 or questions that I asked, that they did not wish to answer.\\\"\\nAt this point appellants' counsel asked to have the jury excused, and then moved for a mistrial on the ground that the appellants' privilege against self-incrimination had been violated. The motion was denied, and the magistrate instructed the jury to disregard the testimony.\\nThe substance of what transpired at this point in the trial, as appellants state in their briefs, is this: the jury learned that appellants had not wished to answer \\\"some\\\" questions, and because of this, that the witness had reached the conclusion appellants knew he was investigating a particular fishing violation. It is argued that this testimony caused the jury to draw an inference of guilt by reason of the appellants' refusal to answer questions involving the violation with which they were later charged. Appellants contend this violated the intent of the constitutional provision that no person shall be compelled in a criminal proceeding to be a witness against himself.\\nIn support of this argument reliance is placed on a 1955 decision of the United States Court of Appeals for the Fifth Circuit. In Helton v. United States, a defendant had been charged with crimes relating to the illegal acquisition and production of marijuana. Evidence was produced showing that in a police search of the defendant's home marijuana had been found in a tobacco can in the pocket of a raincoat in a closet, and also under the dashboard in his automobile. In addition, some was found growing in the back yard of his home.\\nThe defendant did not take the stand. Over objections of counsel, a police officer was allowed to testify that defendant had made no explanation as to how the can of marijuana got in the raincoat in the closet, that he had offered no explanation as to how the marijuana stalks got in the back yard, and that he had not explained how the marijuana got in the automobile. The court of appeals held that such testimony was an attempt to convict the defendant by his silence, by having the jury draw an inference of guilt from his refusal to explain, in violation of the spirit, if not the letter, of the Fifth Amendment.\\nThis decision is clearly distinguishable from the case at hand. In Helton the trial court had permitted, over continuous objections repeated statements by a police officer that the accused had failed to explain incriminating facts. In this case there is only one unresponsive statement from the witness Lowe to the effect that appellants had not wished to answer \\\"some\\\" questions. What the questions were \\u2014 whether they related to incriminating facts \\u2014 was not disclosed. In Helton the trial judge did not instruct the jury to disregard the testimony. In this case such instruction was given. Finally, in the Helton case there was an incident of other testimony, considerably more prejudicial than that relating to the defendant's failure to explain. A witness had testified that when he questioned the defendant regarding marijuana in and around his home, the defendant had told him that \\\"he had been smoking marihuana intermittently very seldom for the past four or five years.\\\" The appellate court found that this evidence was so highly prejudicial \\u2014 was calculated to leave such an impression on the jury \\u2014 that a mistrial ought to have been ordered. In this case we find nothing even remotely resembling an error of such magnitude.\\nThe circumstances here simply do not warrant a finding that Lowe's brief, innocuous and rather vague testimony could have appreciably influenced the jury to convict appellants by reason of their silence. But even assuming that what the witness said ought not to have been said in front of the jury, the guilt of appellants is so plain that a, far more serious blunder in the conduct of the trial would be necessary to require a reversal. It was established through appellants' own admissions that they were on board the vessel SURF as commercial fishermen on the day the violation took place. It was clearly proved through the testimony of two eyewitnesses for the state that the identical vessel with a crew of five had put out a seine net in an attempt to take fish, which were present in large number, in an \\u00e1rea closed to commercial fishing. These witnesses were not impeached, their testimony was not contradicted, and the appellants did not put on a defense. In the light of- this record it is scarcely conceivable that the jury could have reached a verdict other than that of guilty. The alleged prejudicial testimony was of little or no consequence.\\n2. The News Broadcast.\\nAn evening news broadcast of proceedings at the first day of trial was made by radio and television. The following morning appellants' counsel moved for mistrial on the ground that the news report, although factually correct, contained a conclusion of the reporter which would have been prejudicial if heard by the jury. The motion was denied.' Counsel requested the magistrate to examine the jurors to determine whether or not they heard the broad cast, but he made it clear he did not want them examined as to any effect the report may have had on them. Following counsel's suggestion, the magistrate asked the jury if any had heard the broadcast, and three indicated they had. He then instructed those jurors to disregard the broadcast, and reminded them they were to make a determination on the case solely on the evidence presented in court and the instructions. This instruction had been approved by appellants' counsel.\\nAs we stated in Oxenberg v. State, the fundamental question to be determined in an instance of this type is whether the news report was prejudicial \\u2014 whether it is likely that the jury's verdict was affected by reason of what the reporter had said. Such likelihood does not appear. We have examined the entire transcript of the testimony referred to in the broadcast, and find that it was an accurate report of what transpired in court, as appellants concede.\\nAppellants, however, argue that the report was prejudicial because it contained in part a \\\"comment on the testimony of the state's witnesses.\\\" To a limited extent such comment was made by the reporter. But it was fair comment, and we see nothing in it that reasonably could have influenced the jury to find appellants guilty.\\nIt is also argued that the report had a prejudicial effect because it included \\\"only excerpts of the most damaging parts of the state's evidence, without including other features of the cross-examination.\\\" The result of this argument is that no person charged with a criminal offense could ever receive a fair trial unless (1) the public was kept completely uninformed of what took place in court, or (2) unless the publicity given to what occurred at the trial always included a report of facts which favored the defense. The concept of a fair trial does not require us to go that far.\\nThe appellants have failed to show any prejudice resulting to them from the news broadcast. We hold that the magistrate did not abuse his discretion in denying the motion for mistrial.\\nThe judgment is affirmed. The stay of judgment as to appellant, Norman D. Tate, ordered by this court on June 30, 1961, is vacated.\\n. SLA 1959, ch. 94, art. I, \\u00a7 28.\\n.This \\\"privilege\\\" referred to is that con-' forred by the Alaska Constitution,- art. I, \\u00a7 9, which provides in part that \\\"No person shall be compelled in any criminal proceeding to be a witness against himself.\\\"\\n. Two other witnesses for the state had previously testified they observed the vessel STJR.F and her crew of five engage in illegal fishing during the evening of July 19.\\n. Alaska Const. art. I, \\u00a7 9, supra note 2.\\n. 221 F.2d 338 (5th Cir. 1955).\\n. The Fifth Amendment to the federal constitution provides that no person \\\"shall be compelled in any criminal case to be a witness against himself.\\\" This is virtually identical with the language of the prohibition found in the Alaska Constitution, art. I, \\u00a7 9, which provides that \\\"No person shall be compelled in any criminal proceeding to be a witness against himself.\\\"\\n. Nash v. United States, 54 F.2d 1006 (2d Cir.), cert. denied, 285 U.S. 556, 52 S.Ct. 457, 76 L.Ed. 945 (1932).\\n. Opinion No. 36, 362 P.23 893, 899-900 (Alaska), cert. denied, 368 U.S. 56, 82 S.Ct. 189, 7 L.Ed.2d 128 (1961).\\n. Marrone v. State, No. 27, 359 P.2d 969, 976-978 (Alaska 1961).\"}"
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diff --git a/alaska/10581529.json b/alaska/10581529.json
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+"{\"id\": \"10581529\", \"name\": \"STOCK & GROVE, INCORPORATED, Appellant, v. CITY OF JUNEAU, a Municipal Corporation, Appellee\", \"name_abbreviation\": \"Stock & Grove, Inc. v. City of Juneau\", \"decision_date\": \"1965-06-21\", \"docket_number\": \"No. 535\", \"first_page\": \"171\", \"last_page\": \"177\", \"citations\": \"403 P.2d 171\", \"volume\": \"403\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-11T02:39:00.982508+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before NESBETT, C. J., and DIMOND and RABINO WITZ, JJ.\", \"parties\": \"STOCK & GROVE, INCORPORATED, Appellant, v. CITY OF JUNEAU, a Municipal Corporation, Appellee.\", \"head_matter\": \"STOCK & GROVE, INCORPORATED, Appellant, v. CITY OF JUNEAU, a Municipal Corporation, Appellee.\\nNo. 535.\\nSupreme Court of Alaska.\\nJune 21, 1965.\\nDonald L. Craddick, Faulkner, Banfield, Boochever & Doogan, Juneau, for appellant.\\nShirley F. Meuwissen, Stabler, Gregg & Meuwissen, Juneau, for appellee.\\nBefore NESBETT, C. J., and DIMOND and RABINO WITZ, JJ.\", \"word_count\": \"3973\", \"char_count\": \"23548\", \"text\": \"NESBETT, Chief Justice.\\nThe suit below was for additional payment for work done under a construction contract for the laying of sewer lines in the City of Juneau, Alaska. At the close of the testimony of plaintiff-appellant's first witness the trial judge granted defendant-ap-pellee's motion to dismiss the first thirteen paragraphs of the complaint. Only paragraph fourteen, stating a claim not pertinent to this appeal remained to be tried \\\"after\\\" dismissal.\\nAppellant presents two questions for decision:\\n(1) Did the trial judge err in dismissing paragraphs 1-13 of the complaint without permitting plaintiff to present its other, witnesses ?\\n(2) Were the findings of fact and conclusions of law entered by the c.ourt suf ficiently detailed and explicit to satisfy the requirements of Civil Rule 52(a) ?\\nIn paragraphs 1 through 13 of its complaint appellant claimed reimbursement for unpaid balances due it for additional work performed under its contract as follows:\\n(1) For backfilling and mechanically tamping 816.8 cubic yards of earth in the amount of $4,900.80.\\n(2) For removing and replacing 248.76 square yards of concrete pavement in the amount of $7,462.80.\\n(3) For removing and replacing 16.72 square yards of bituminous surfacing in the amount of $501.60.\\n(4) For removing and replacing 2,289.7 vertical square feet of rubble rock, also known as Rip-Rap, in the amount of $9,158.80.\\nIn its answer appellee denied that any of the above work was done pursuant to the requirements of the contract; alleged in an affirmative defense that payment in full had been made for all work done pursuant to the contract and in a second affirmative defense alleged that appellant was estopped from making any claim because of any misunderstanding it might have had in reading the contract documents prior to submitting its bid.\\nIt is clear from the record that appellant's unpaid claims were based on the back-filling, tamping and replacement of paving required because of sewer trench excavations which exceeded 2' 3\\\" in width. Appellant's interpretation of sections 2-06 and 2-06(a) of the contract specifications, which stated:\\n2-06. TRENCFI EXCAVATION, to lines and grades shown on the drawings, banks vertical from bottom of trench to at least 18 inches above top of pipe, width of trenches to be 2 feet \\u2014 3 inches.\\na. Unclassified Excavation. Unless otherwise designated, all trench excavation will be considered to be unclassified. Additional payment will be allowed for rock excavation. The material known locally as \\\"blue clay\\\" and similar conglomerates are not classified as rock.\\nwas that the width of trenches was to be 2' 3\\\" from the bottom of the trench to a point 18\\\" above the top of the pipe, but from that point upward to the top, the trench sides could be sloped in accordance with standard construction practice, the degree of slope being determined by the type of earth material encountered and the amount of sluffing.\\nAppellee's interpretation of the above quoted specifications seems to have been that trench width, at least for the purpose of computing compensation, was to be limited to 2' 2\\\".\\nTrench widths greater than 2' 3\\\" at and near the top of the trench which required more backfilling, tamping and replacement of surface pavement than had been estimated by appellee accounted for the additional amounts demanded by appellant.\\nAppellant's first and only witness was R. D. Stock, president of appellant corporation. His testimony, insofar as is pertinent to the issues before us was: that he prepared the bid which resulted in the award of the contract to appellant; that the .only area of the specifications that troubled him in preparing the bid was section 6-13 defining the method of measuring rip-rap; that he did not attempt to obtain an interpretation of that section from the project engineers before submitting a bid; that his interpretation of sections 2-06 and 2-06 (a) was that the trench excavation was to be 2' 2\\\" in width at the bottom and upward to a point 18\\\" above the sewer pipe and from that point upward to the top of the trench, although the excavation sides were to be vertical as possible, it was nevertheless permissible for the sides to slope outward because of sluffing; that his interpretation of section 6-04 of the specifications, which stated:\\n6-04. ADDITIONAL FOR MECHANICAL TAMPING.\\na. Measurement will be by the cubic yard by the method of average end areas measured from the surface of the ground to a plane one foot above the top of the pipe and for the width of the trench specified in areas where mechanical tamping is called for on the drawings.\\nb. Payment will be made at the unit price bid per cubic yard for \\\"Additional for Mechanical Tamping\\\" completed and accepted. No additional payment will be made for mechanical tamping which may be required to obtain specified soil density under sewer encasements or other areas not noted on the drawings.\\nwas that payment would be made based on a trench cross section at the top which involved sloping sides; that his interpretation of section 5-07 of the specifications which stated:\\n5-07. REMOVAL AND REPLACEMENT OF CONCRETE PAVEMENT. Remove concrete pavement to the allowable width of the trench. Compact and backfill as outlined in the section of these specifications entitled EXCAVATION, TRENCHING AND BACKFILLING. After approval of the backfill by the Engineer, cut back the pavement for an additional 18-inches sawing the break back joint for a depth of at least 2-inches before making the break. Replace the pavement for this width with Class A, Grade X concrete for the thickness equal to the original thickness of the pavement cut plus two inches. Construct concrete curbs to the section and with a finish to match the existing curb. Concrete shall be made with Type III, High Early Strength, cement. Replacement of concrete curbs shall be considered as incidental to pavement removal and replacement.\\nwas that concrete pavement would be removed to whatever extent was necessary to dig the trench, keeping the trench as narrow as possible, but that payment would be based on the amount actually removed and replaced; that his interpretation of section 5-09 dealing with the removal and replacement of bituminous surfacing, the first sentence of which stated:\\nWhere the pipeline is constructed in or across travelways with bituminous surfacing, the existing bituminous surface with base shall be removed to> the same width as the allowable width of the trench.\\nwas that appellant would be paid for the replacement of all bituminous surfacing that it had been necessary to remove in order to dig the trench. Mr. Stock gave testimony of a similar nature with respect to work done which was governed by other provisions of the contract. He testified that several different interpretations of the specification concerning removal of rip-rap had been given by engineers of appellee, the latest interpretation not being compatible with reason according to the witness, and that it was customary in the construction business for trench excavations to have sloping sides to avoid the danger to workmen from sluffing. On cross-examination Mr. Stock testified that he had not, prior to submitting his bid, requested an interpretation of any of the contract provisions in accordance with page IB-3, section- 9 of the contract, -which stated:\\n9. If any person who contemplates submitting a bid for this Contract is' in doubt as to the true meaning of any part of the plans, specifications, or other proposed Contract Documents, he may submit to the Engineers a written request for an interpretation thereof. The person submitting the request will be responsible for its prompt delivery. Any interpretation- of the proposed documents will be made only by Addendum duly issued and a copy of such Addendum will be mailed or delivered to each person receiving a set of such documents. The Owner and/or Engineers will not be responsible for any other explanations or' interpretations of the proposed documents. .\\nAt the request of counsel for appellee, the witness read certain provisions of the contract, one of which was a certification that the bidder had carefully examined the drawings, specifications and other contract documents, had investigated the location, character and extent of the work to be done, that he was familiar with the type of work to be done and that he proposed to perform the contract requirements for the prices listed in the unit price schedule. The witness admitted that the contract plans furnished to bidders contained estimates of the amounts involved with respect to each of the items for which additional payment was being requested and that he had.not checked the accuracy of these estimates prior to bidding. He testified that in many instances it was not possible to do this because of lack of information, admitting again that he had certified that he had examined the plans and specifications, was familiar with the work and that he would do it according to the plans and specifications. On redirect Mr. Stock testified that the work was bid on the basis of unit prices and not on lump sums;. that if the bidding had been on the basis of lump sums it would have been necessary to prepare takeoffs or 'estimates of the total amounts involved; that he did not think it would have been possible to have excavated and ended up with a trench 2' 2\\\" in width \\\"all the way through\\\" unless he -had used drive sheeting which must be driven before the excavation, is extremely expensive and was not called for in the contract by implication or otherwise.\\nWhen court reconvened after the noon recess the judge stated:\\nAt the commencement of the trial this morning, defense counsel moved to dismiss the complaint for the reason that it does not state a claim upon which relief can be granted. Court has taken that motion under advisement pending certain testimony on behalf of the plaintiff. Although the complaint may have been subject to such a motion prior to time of trial, it was not made. For that reason the Court did take it under advisement pending certain evidence which was to be presented by the plaintiffs herein. I find, based upon the law and the facts from the testimony, that it is necessary to grant the motion to dismiss as to plaintiff's complaint, paragraphs number 1 through 13. This is based upon the contents of the complaint itself, and secondly upon the defendant's second affirmative defense, and most, especially, upon the testimony of R. D. Stock and I cannot find, in the light of the complaint, the testimony and the law concerning these matters as I am able to find it, that in the light of that testimony this plaintiff could prevail on the first 13 paragraphs. It is further noted, although perhaps not compelling, that the complaint is difficult in that it does not set forth its separate claims as to counts as is required, although this may not be, in itself, grounds for dismissal for failure to state a claim, it is noteworthy at least for counsel's ' information in preparing such matters in the future.\\nThe only finding of fact made by the court pertinent to this appeal was I (3) which stated:\\nThe testimony of R. D. Stock showed the plaintiff had no right to relief under the Complaint, paragraphs 1 through 13.\\nThe only conclusion of law entered which is pertinent to this appeal is No. I which stated:\\nDefendant is entitled to a Judgment of Dismissal of paragraphs 1 through 13 of the Complaint for failure to state a claim upon which relief can be granted considering the following:\\n(1) The contents of the Complaint;\\n(2) the defendant's second affirmative defense; and\\n(3) most especially, the testimony of R. D. Stock.\\nIn our opinion thhe court erred in granting dismissal under the circumstances.\\nPlaintiff's theory of the case was that the contract provisions, with one possible exception, were not ambiguous, but should have been interpreted in the light of what was standard practice in the construction industry. Specifically, his theory was that the specification on trench excavation width only limited trench width to 2' 3\\\" for compensation purposes from the bottom of the trench to a point 18\\\" above the sewer pipe. From that point upward to the top of the trench, the specification should be interpreted as allowing for a sloping outward of the trench sides. R. D. Stock was qualified as an expert in construction practices and testified that the top portion of an excavation always sluffs, or caves, and that it is standard construction practice to slope the sides outward as a safety measure to protect workmen in the trench. Counsel for appellant had informed the court during Mr. Stock's testimony that an engineer witness would be called to testify in detail with respect to the sloping trench sides.\\nCounsel for appellee in her opening statement and thereafter seems to have ignored appellant's theory of the case and emphasized the view that in order to prevail appellant would need to prove that the contract was ambiguous and therefore needed to be interpreted; that no allegation of ambiguity was contained in the complaint; that no recognized theory of the case had been set out in the complaint and moved that it be dismissed for failure to state a claim. Dttring cross-examination counsel for appellee's questions generally were framed.to obtain answers which emphasized the fact that Mr. Stock had certified that he had examined the plans and specifications, was familiar with the work and would perform it according to the specifications and that he had not checked the accuracy of the estimates furnished by appellee on the plans as to the amounts involved with respect to the items for which additional payment was demanded.\\nThe views of this court can perhaps best be explained by making specific observations on the various reasons given by the trial court for dismissing the complaint.\\n(1) Appellant's complaint was not defective or inartfully drawn, in fact, it was carefully and artfully drawn. After pleading the contract, performance by appellant, acceptance by appellee and what it claimed to be a tender of part payment by appellee, appellant then set out in separate numbered paragraphs, with respect to each item for which additional compensation was claimed, the following:\\n(a) That a certain amount of work was performed under pertinent terms of the contract, each pertinent term being pleaded as a separate exhibit;\\n(b) That appellant had received payment for a specific portion of the \\u00abwork performed;\\n(c) That its claim for payment of the balance of its claim had been rejected.\\n(2) Appellant did not plead that any of the terms of the contract specifications were ambiguous or misunderstood by appellant prior to submitting its bid. Appellant made this clear in its opening statement and out lined the legal theory upon which it was proceeding when its counsel stated:\\nMR. CRADDICK: May it please the Court, the complaint we feel is quite fair. It sets forth all the applicable contract provisions and it states that the work was done under those contract provisions. The provisions are not ambiguous to us, they have a clear meaning. The reason that we are in Court is because the defendant happens to disagree with what is our interpretation of the contract. Now, we shall show through witnesses, that this disagreement was not brought home to the plaintiff, until after the work was done. Now, when you have a contract, it is to be interpreted on the basis of the meaning that the contract would actually convey to a reasonably intelligent bidder acquainted both with the industry practice and the surrounding circumstances, and that, of course, is the reason we are in Court today. It is obvious that any person could come in Court and say that I read the contract and interpreted as being so, well, that may be, but it would have to be a reasonable interpretation and that, of course, is why we have our expert witness here to show that our interpretation of the contract is indeed a reasonable one. We agree the ambiguity here, if anything, is slight. The contract terms are quite clear. What we are going to do is show that the contract terms mean what they say\\u2014 what we say they mean, not what the city says they mean.\\nThat the clear and unambiguous terms of a contract may be interpreted by the general and accepted usage of the trade or business involved is the general rule of law. Appellant was attempting to prove, as it was obligated to prove, what it contended was the accepted practice in the construction industry with respect to the sloping of the sides of trench excavations. Mr. Stock's testimony as an expert was relevant, and if believed, supported appellant's theory of the case.\\n(3) A study of the entire transcript of testimony with relation to appellee's second affirmative defense of estoppel fails to disclose a sound basis for the trial court's conclusion that the testimony of Mr. Stock had established that defense or had disproved his own theory of recovery.\\nThe testimony tended to support appellant's theory of recovery and, to a degree, may have provided support for appellee's affirmative defense of estoppel, at least with respect to the claim for removal and replacement of rubble rock.\\nWe express no opinion on the merits of the issues. Dismissal was premature. Under the circumstances appellant should have been permitted to complete the presentation of his case before consideration was given to a motion to dismiss.\\nWe also agree with appellant that the findings of fact and conclusions of law were not adequate to satisfy the requirements of Civil Rule 52(a). It is not possible to determine with any certainty what facts were found by the court and as a result the conclusion of law serves no helpful purpose.\\nIn Dickerson v. Geiermann we said 368 P.2d at page 219:\\nIt is the duty of a trial court to deal adequately with and state with clarity what it finds as facts and what it holds as conclusions of law. The findings and conclusions should be so explicit as to give this court a clear under standing of the basis for the decision made. [Footnotes omitted.]\\nThe judgment below is reversed and the case remanded for further proceedings consistent with the views expressed herein.\\n. Civ.R. 52(a) in pertinent part states:\\nIn all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon and direct the entry of the appropriate judgment \\u215c .\\n. Quoted supra this page.\\n. At this point the witness was using a blackboard diagram to illustrate his testimony. It would have been helpful to a clearer understanding of a transcript of the testimony if counsel for appellant, or the trial judge, had described the diagram for the record and on those occasions when the witness pointed or referred to the diagram, to have stated into the record an explanation sufficient to acquaint a reader of the transcript with the full import of the testimony.\\n.Spenard Plumbing & Heating Co. v. Wright, 370 P.2d 519, 523-24 (Alaska 1962) ; 5 Williston, Contracts \\u00a7 648 (3d ed. 1961) and case authority there cited.\\n. Civ.R. 41(b); See Trusty v. Jones, 369 P.2d 420 (Alaska 1962); Rogge v. Weaver, 368 P.2d 810 (Alaska 1962).\\n. 368 P.2d 217 (Alaska 1962); Hamilton v. Lotto, 391 P.2d 948, 949 (Alaska 1964).\"}"
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+"{\"id\": \"10590061\", \"name\": \"Vernon K. KUGZRUK, Appellant, v. STATE of Alaska, Appellee\", \"name_abbreviation\": \"Kugzruk v. State\", \"decision_date\": \"1968-02-02\", \"docket_number\": \"No. 750\", \"first_page\": \"962\", \"last_page\": \"968\", \"citations\": \"436 P.2d 962\", \"volume\": \"436\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T17:23:34.903701+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before NESBETT, C. J., and DIM-OND and RABINOWITZ, JJ.\", \"parties\": \"Vernon K. KUGZRUK, Appellant, v. STATE of Alaska, Appellee.\", \"head_matter\": \"Vernon K. KUGZRUK, Appellant, v. STATE of Alaska, Appellee.\\nNo. 750.\\nSupreme Court of Alaska.\\nFeb. 2, 1968.\\nRichard R. Cole, Fairbanks, for appellant.\\nWilliam G. Richards, Asst. Dist. Atty., and Jay Hodges, Dist. Atty., Fairbanks, for appellee.\\nBefore NESBETT, C. J., and DIM-OND and RABINOWITZ, JJ.\\n. In the superior court a three-count indictment had been returned by the grand jury.\", \"word_count\": \"3255\", \"char_count\": \"19742\", \"text\": \"OPINION\\nRABINOWITZ, Justice.\\nIn the lower court guilty verdicts were rendered against appellant as to the separate crimes of robbery, assault with a dangerous weapon, and burglary in a dwelling. A judgment and commitment sentencing appellant to concurrent six-year terms of incarceration was entered. It is from this judgment and commitment of the superior court that appellant appeals.\\nIn his specification of error appellant contends that the trial court erred in allowing \\\"the prejudicial remarks of a prospective jury member made during the voir dire proceedings.\\\" After considerable time had elapsed in selection of the jury, the clerk of court called prospective juror E. Albright. At this point the record shows that juror Albright volunteered the following:\\nUh, Your Honor, I think that it would be a waste of time for me to come up there, because having had a long record of pilferage, breaking and entering, a boat pilfered, armed robbery, I'm sure I wouldn't have an open mind.\\nAfter this unsolicited information was revealed, the district attorney stated: \\\"We'll stipulate.\\\" Appellant's trial counsel immediately followed with, \\\"So stipulate, also.\\\" The trial judge then said, \\\"You're excused Mr. Albright.\\\"\\nReview of the entire record fails to disclose that appellant's trial counsel objected to the prospective juror's remarks, or requested that the trial judge instruct the jury regarding them, or moved for a mistrial because of these comments.\\nIn Sidney v. State we held in part that, \\\"We will not consider on appeal any objection which was not raised at the trial level.\\\" On the other hand, Criminal Rule 47(b) provides that:\\nPlain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.\\nIn accord with Criminal Rule 47(b) we said in Thomas v. State that:\\nThe record does not disclose that the subject motion was ever noticed for hearing. In such a situation we follow the rule that alleged error occurring upon the trial of a case must be raised and urged in the trial court and passed upon by that court before this court will consider it on appeal unless the error specified raised a jurisdictional question or deprived the defendant of a substantial right. This is in keeping with Crim.R. 47 that only plain errors or defects affecting substantial rights may be noticed even though they were not brought to the attention of the court.\\nAlso pertinent is Bowker v. State where we said in regard to plain error that before we will notice a point that was not brought to the trial judge's attention, it must be \\\"obviously prejudicial.\\\" We have concluded that appellant has not made out a case of plain error in regard to prospective juror Albright's comments. Appellant contends that he was prejudiced in that the juror Albright's remarks, together with counsels' immediate stipulation to dismiss the juror for cause, \\\"left implanted in at least some of the jurors' minds that the defendant Kugzruk had a long record of pilferage, breaking and entering, and armed robbery.\\\" We disagree. At most, the prospective juror's statement was ambiguous. We are of the opinion that the more reasonable construction of the statement in question is that the juror himself had been the victim of a long history of criminal conduct. We hold, under the Bowker v. State criterion, that appellant has not made out a case of plain error.\\nAppellant next contends that he was denied the right to be present at every stage of the trial. Criminal Rule 38 provides in part that:\\n- The defendant shall be present at the arraignment, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by these rules.\\nIn Noffke v. State we were asked to decide whether every violation of Criminal Rule 38 necessitated reversal. There we said:\\nWe hold that nonadherence by the trial court to the provisions of Crim.R. 38 does not automatically constitute reversible error. A violation of the mandate of Crim. R. 38 is not prejudicial error unless such nonadherence has affected a substantial right of the defendant.\\nIn regard to this second specification of error, the record shows that during the testimony of Frank Mate, one of the victims of appellant's assault, robbery, and burglary, the following occurred: Counsel for appellant objected to a question which the district attorney had propounded to the witness; after a brief colloquy between counsel, the trial judge said:\\n[Wjould counsel care to \\u2014 if the materiality is challenged, counsel may come forward, and the defendant if interested.\\nAppellant then asked, \\\"Does that mean for all these hearings ?\\\" The record does not indicate that appellant's inquiry, was answered. It does show that a confer ence was then held in an anteroom outside the presence of the jury. We note that in regard to this conference the record does not affirmatively show appellant's absence. We also consider it significant that the record does not indicate that trial counsel ever objected to appellant's absence from the anteroom conference. The status of the record is identical in regard to three subsequent anteroom conferences. As to each of these conferences the record does not affirmatively show appellant's absence nor does the record show that any objections were lodged as to appellant's absence. Upon review of the record, and adhering to the \\\"obviously prejudicial\\\" test for determining plain error which we enunciated in Bowker v. State, we conclude that appellant has not demonstrated that he should be granted a new trial because he was denied the right to be present at every stage of his trial.\\nThe first anteroom conference at which appellant asserts he was denied the right to be present involved a discussion as to the materiality and relevancy of testimony concerning certain objects which were located on a dresser within the apartment that appellant burglarized. The second conference concerned the marking of certain photographs as prosecution identifications. At the conclusion of this conference the district attorney decided not to use the photographs. The third conference took place during counsel for appellant's cross-examination of a prosecution witness. This anteroom conference was initiated because the district attorney was uncertain as to the import of the witness' testimony. Outside the jury's presence, appellant's counsel explained what had transpired and the district attorney indicated that he understood. The matter ended there.\\nAssuming that appellant was not present during any of these three conferences, we fail to discern any prejudice to appellant's substantial rights. We follow Noffke and hold that nonadherence to the requirements of Criminal Rule 38 did not constitute prejudicial or reversible error here because no substantial rights of appellant were affected by anything which transpired at the conference in question.\\nAdditionally, appellant claims that his right to be present at all stages of the trial was violated by a conference which was held following the reading of the court's charge to the jury. At this conference the district attorney suggested a grammatical change in one of the instructions pertaining to the count of assault with a dangerous weapon. Neither during the anteroom conference, nor at any time subsequent thereto, did appellant's trial counsel object to the court's granting the prosecution's requested change in the assault with a dangerous weapon instruction. At the same conference appellant's counsel suggested that a word had been omitted from a portion of the court's charge as it pertained to the burglary count. The trial court followed appellant's counsel's suggestion and added the omitted word to the burglary instruction. At the conclusion of this conference, the trial judge informed the jury, in the presence of appellant and his counsel, that he had made several hand written changes in the instructions. Here again the record shows that there was no objection on the part of appellant's counsel after the trial court had informed the jury that changes had been made in the instructions.\\nAfter reviewing the events of this last conference, we have concluded no substantial rights of appellant were affected by his absence from this fourth anteroom conference. Unlike the situation presented by Noffke v. State the changes made in the court's instructions did not adversely affect any of appellant's substantial rights. In the case at bar, the addition of the word \\\"away\\\" \\u2022 to the court's burglary charge at the suggestion of appellant's own counsel did not in any way prejudice appellant's rights. This instruction, as modified, enabled the court to correctly define an essential element of the crime of burglary which the jury had to find was proven beyond a reasonable doubt before they could return a guilty verdict as to this count. In our view, this change in the burglary charge was beneficial to appellant. As to the modification of the assault with a dangerous weapon charge, we find that the change correctly clarified an existing ambiguity in the instruction and was not prejudicial to ^ny substantial rights of appellant.\\nIn short, we hold that appellant has not shown plain error resulting from anything which occurred during the four anteroom conferences now questioned in this appeal. We note that federal precedent construing Rule 43, Federal Rules of Criminal Procedure (which is substantially similar to our Criminal Rule 38), have ruled that conferences held between court and counsel during a trial for the purpose of hearing arguments of law on evidentiary ruling and related matters are not \\\"stages of a trial\\\" within the intendment of the rule. We believe that the question of whether a defendant's presence should be required at such conferences should be left to the sound discretion of the trial judg\\u00e9. We are also of the view that the better practice would be to require the defendant's presence at such conferences, and that any request from defendant's counsel or from the defendant himself to be present should readily be granted by the trial judge.\\nAppellant's last point is that the trial court erred in admitting, over his objections, \\\"the prejudicial testimony of Linda Gail Thisby.\\\" This witness testified that at about 3 :30 a. m. on the morning in question she observed appellant in one of the third-floor corridors of the Northward Building in Fairbanks. The witness further testified as follows:\\nA Well, he was fumbling in his pocket for keys and trying them in this door.\\nQ Uh huh. And then what happened?\\nA Well, we stood there and watched him because we knew that nobody lived in that apartment, and he kept watch ing us at the same time. And he looked like he'd been drinking but it-\\u2014it was hard to tell. He just kept trying keys, different keys in the door.\\nThe witness Thisby also testified that eventually appellant approached the stair' well and walked upstairs. Counsel for appellant objected to this testimony on the grounds that it indicated that appellant attempted to commit a crime other than the crimes for which he was standing trial. The trial court overruled appellant's objections and admitted the testimony. . We hold that this evidence was admissible.\\nUp to this point in the trial the state's case had shown that in the early morning hours of June 29, 1965, appellant entered the fifth floor of the Northward Building apartment of Frank Mate, where he and his two sons were sleeping. Frank Mate awoke to find appellant sitting at the foot of his bed. Appellant was pointing a pistol at Mate and said, \\\"Don't move or I'll kill you.\\\" This began appellant's brief reign of terror within the Mate apartment.\\nIn our opinion the relevance and probative value of witness Thisby's evidence outweighed its prejudicial impact. It has been held that independent-crime evidence is admissible when it tends to complete the picture or set the stage for the crime for which the defendant is being tried. In United States v. Wall the court quotes from Bracey v. United States where it was stated:\\nHowever, there are many well established exceptions to this rule to the end that all relevant facts and cir-.' cumstances tending to establish any of the constituent elements of the crime o\\u00ed, which the defendant is accused may be' made to appear. Thus, evidence of other criminal acts has been held admissible by this court when they are so blended or connected with the one on trial as that proof of one incidentally involves the other; or explains the circumstances thereof; or tends logically tp prove any element of the crime charged. Such evidence is admissible if it is so associated that proof of one tends to prove the other .\\nIn addition to the foregoing, we believe the witness Thisby's testimony to be admissible because it was probative of the identity of appellant as the person who unlawfully entered the Mate apartment. Of the three occupants of the Mate apartment only Frank Mate was able to positively identify appellant as the intruder. Thisby's testimony corroborates Mate's testimony in that she unequivocally identified appellant as being in the Northward Building on the morning in question, intoxicated, and attempting to gain access to an apartment. We hold that the witness' testimony was admissible and should not have been rejected because it may have shown that appellant attempted to commit a crime for which he was not on trial.\\nThe judgment and commitment entered below is affirmed.\\n. At trial appellant was not represented by his present court-appointed counsel\\n. 408 P.2d 858, 862 (Alaska 1965).\\n. 391 P.2d 18, 20 (Alaska 1964) (footnotes omitted).\\n. For other \\\"plain error\\\" decisions of this court, see Tracey v. State, 391 P.2d 732 (Alaska 1964); Thomas v. State, 391 P.2d 18 (Alaska 1964); Gilley v. City of Anchorage, 376 P.2d 484 (Alaska 1962); Bank v. State, 373 P.2d 734 (Alaska 1962); Bowker v. State, 373 P.2d 500 (Alaska 1962); McBride v. State, 368 P.2d 925 (Alaska 1962), cert. denied, McBride v. Alaska, 374 U.S. 811, 83 S.Ct. 1702, 10 L.Ed.2d 1035 (1963).\\n. 373 P.2d 500, 505 (Alaska 1962).\\n. Id.\\n. Comisare McCracken v. State, 431 P.2d 513, 515 (Alaska 1967). In that case the trial judge inquired of the prospective jury panel whether any of the jurors had ever sat on a jury in which the defendant had been involved. On appeal to this court appellant argued that the trial court's question constituted prejudicial error because it indicated to the jury that appellant had been tried previously and convicted. We held that appellant's specification of error was without merit. See also Maze v. State, 425 P.2d 235, 238-39 (Alaska 1967).\\n. 422 P.2d 102, 105 (Alaska 1967) (footnotes omitted).\\n. In Noffke the trial court gave the jury an additional instruction in the absence of the defendant and his counsel. It was only after the jury had returned its verdict and defendant had been sentenced that defendant and his counsel first learned of the fact that the trial court had given an additional instruction to the jury. In Noffke we held that:\\n[T]his additional instruction did not relate to an insubstantial matter but involved a vital issue in the case which affected a substantial right of appellant and therefore the giving of this supplemental instruction, in contravention of Crim.R. 38, constituted prejudicial error.\\nId. at 106.\\n. At this point the transcript reads: \\\"[Conference in the anteroom \\u215c . End of conference in the anteroom].\\\"\\n. 373 P.2d 500, 505 (Alaska 1962).\\n. Noffke v. State, 422 P.2d 102, 105 (Alaska 1967).\\n. The prosecution requested that the instruction in question be changed to read that the jury would have to find that appellant unlawfully assaulted Prank Mate or Timmy Mate instead of \\\"Erank Mate and Timmy Mate.\\\"\\n.Before appellant's counsel brought this matter to the attention of the trial judge, the burglary instruction read in part as follows: \\\"Stealing consists of the unlawful carrying of the property of value belonging to another with the intent to permanently deprive the owner thereof.\\\" As a result of counsel for appellant's comments, the word \\\"away\\\" was inserted between \\\"carrying\\\" and \\\"of.\\\"\\n. At this point the trial transcript reads: THE COURT: Ladies and gentlemen of the jury, there have been several minor handwritten changes in these Instructions which I'm sure that 3'ou will note as you peruse these Instructions, and of course you are encouraged to read and study these Instructions in \\u2014 during your deliberations. You will note the changes made.\\n. 422 P.2d 102, 106 (Alaska 1967).\\n. In Doschenes v. United States, 224 F.2d 688, 693 (10th Cir. 1955), the court stated:\\nMoreover, it is settled law that the exclusion of a defendant and a jury from the courtroom during argument on a question of law does not violate defendant's constitutional right to be present at every stage of the proceedings.\\nSee Cox v. United States, 309 F.2d 614, 616 (8th Cir. 1962) ; United States v. Johnson, 129 E.2d 954, 958-959, 144 A.L.R. 182 (3d Cir. 1942), aff'd, 318 U.S. 189, 63 S.Ct. 549, 87 L.Ed. 704, 705, reh. denied, 318 U.S. 801, 63 S.Ct 826, 87 L.Ed. 1164 (1943); State v. Peters, 146 Mont. 188, 405 P.2d 642, 646-647 (1965). Compare Hill, Some Special Problems Commonly Encountered in Criminal Cases, in Seminar on Practice and Procedure, 28 F.R.D. 37, 282, at 292 (1960).\\n.In ruling the witness' testimony admissible, the court said:\\nI'm satisfied it is if the proximity is so close as it tends to show a plan or an operation, a procedure, tends to explain if it incidentally involves a commission of another crime. This in itself does not make it inadmissible; this is something entirely different from the theory, I think, that counsel for the defense is expressing. And I'm reasonably satisfied if this is tied in in the same \\u2014 in the same sequence so that it is reasonably close it could be construed as \\u2014 it's the same thing as a person assaulting somebody and then somebody else grabbing him as he's running away and he starts beating on them, and the fact that he's committing a crime then does not make it excludable as tending to show that he was up to mischief and a violent disposition. I tbink I see a comparable situation bere.\\n. In Harper v. United States, 99 U.S. App.D.C. 324, 239 F.2d 945, 946 (1956), Judge Bazelon said:\\nSometimes, however, it is helpful to analyze the law into its basic elements. Thus analyzed, the rule is that evidence of other offenses is admissible when substantially relevant to the offense charged; inadmissible when its relevance is insignificant; and, in borderline cases, admissible when its relevance outweighs the undue prejudice that may flow from it \\u215c.\\n. 225 E.2d 905, 907 (7th Cir. 1955), cert. denied, 350 U.S. 935, 76 S.Ct. 307, 100 L.Ed. 816 (1956).\\n. 79 U.S.App.D.C. 23, 142 E.2d 85, 87-88, cert. denied, 322 U.S. 762, 64 S.Ct. 1274, 88 L.Ed. 1589 (1944).\\n. This witness also heard appellant walking up the stairs from the third-floor level where she first encountered him.\\n. United States v. Spatuzza, 331 F.2d 214, 217 (7th Cir.), cert. denied, 379 U.S. 829, 85 S.Ct. 58, 13 L.Ed.2d 38 (1964); Labiosa v. Government of the Canal Zone, 198 F.2d 282, 284 (5th Cir. 1952). See also Smith v. State, 431 P.2d 507, 508-509 (Alaska 1967).\"}"
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+"{\"id\": \"11168472\", \"name\": \"James R. CASSEL, Appellant and Cross-Appellee, v. STATE of Alaska, DEPARTMENT OF ADMINISTRATION, Appellee and Cross-Appellant\", \"name_abbreviation\": \"Cassel v. State, Department of Administration\", \"decision_date\": \"2000-12-15\", \"docket_number\": \"Nos. S-9063, S-9073\", \"first_page\": \"278\", \"last_page\": \"287\", \"citations\": \"14 P.3d 278\", \"volume\": \"14\", \"reporter\": \"Pacific Reporter 3d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T22:22:23.494952+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before MATTHEWS, Chief Justice, EASTAUGH, FABE, BRYNER, and CARPENETI, Justices.\", \"parties\": \"James R. CASSEL, Appellant and Cross-Appellee, v. STATE of Alaska, DEPARTMENT OF ADMINISTRATION, Appellee and Cross-Appellant.\", \"head_matter\": \"James R. CASSEL, Appellant and Cross-Appellee, v. STATE of Alaska, DEPARTMENT OF ADMINISTRATION, Appellee and Cross-Appellant.\\nNos. S-9063, S-9073.\\nSupreme Court of Alaska.\\nDec. 15, 2000.\\nTerry A. Venneberg, Law Offices of Terry A. Venneberg, Anchorage, for Appellant and Cross-Appellee.\\nJan Hart DeYoung, Assistant Attorney General, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee and Cross-Appellant.\\nBefore MATTHEWS, Chief Justice, EASTAUGH, FABE, BRYNER, and CARPENETI, Justices.\", \"word_count\": \"3584\", \"char_count\": \"24542\", \"text\": \"OPINION\\n'\\nFABE, Justice.\\nI. INTRODUCTION\\nJames Cassel, a probationary employee, was dismissed from his position as the Department of Public Safety's Identification Bureau Chief. Cassel appeals his termination, claiming that objective grounds did not support his termination. He further claims entitlement to back pay based on a violation of his right to due process. Because Cassel's termination conformed to the objective standards and procedural safeguards required by the collective bargaining agreement, we affirm.\\nII. FACTS AND PROCEEDINGS\\nIn January 1994 James Cassel began work as the Department of Public Safety's Identification Bureau Chief, a position charged with the responsibility of managing the State's criminal records and fingerprint identification system.\\nUnder the collective bargaining agreement between the State of Alaska and the Alaska Public Employees Association (APEA), Cas-sel's position was subject to a twelve-month probationary period. Midway through this probationary period, Cassel received a performance evaluation from his immediate supervisor, Director of Administrative Services Ken Bischoff. Bischoff expressed dissatisfaction with Cassel's job performance, giving him an \\\"unacceptable\\\" rating on his performance and a \\\"low acceptable\\\" overall rating. Cassel did not appeal this, evaluation and eventually signed the report.\\nIn September 1994 Bischoff notified Cassel that Cassel would not complete his probationary period and that his employment would be terminated within sixty days. Cas-sel, through his union, challenged his termination pursuant to the complaint procedures available to probationary employees. At the first two steps of the complaint review process, Cassel's complaint was denied by Bis-choff and Commissioner of Public Safety Richard Burton. The third and final step of the complaint process entailed review by the Commissioner of Administration.\\nIn conjunction with this step III complaint review by the Department of Administration, labor relations analyst Mila Doyle met with Cassel and his APEA representative. Following this meeting, Doyle recommended the denial of Cassel's complaint. Ultimately, then-Commissioner of Administration Mark Boyer denied Cassel's complaint and upheld his termination.\\nCassel appealed this final decision to the superior court. In a September 1996 order, Superior Court Judge Milton M. Souter determined that under the applicable labor contracts and University of Alaska v. Tovsen, Cassel could be terminated \\\"only for good cause.\\\" Because no good cause determination had been made, Judge Souter reversed Commissioner Boyer's decision and remanded to the Department of Administration for further proceedings.\\nCassel thereafter filed a Motion for Clarification of Remedy, seeking back pay for the State's failure to provide him with an adequate hearing. Judge Souter determined that Cassel's meeting with Doyle conformed to the collective bargaining agreement and provided due process, and therefore denied Cassel's request for back pay.\\nIn May and June of 1997 Hearing Officer Phyllis V. Schmidt held a hearing pursuant to Judge Souter's remand order to determine whether there was good cause to terminate Cassel. In her September 1997 decision, Schmidt concluded that \\\"there was just cause to terminate Mr. Cassel for unsatisfactory performance of his duties.\\\"\\nCassel appealed Hearing Officer Schmidt's decision to the superior court. Superior Court Judge pro tem Sigurd E. Murphy affirmed, holding that just cause supported Casgel's termination. Judge Murphy also affirmed Judge Souter's ruling that Cassel received due process in the Doyle meeting and was therefore not entitled to back pay.\\nOn appeal, Cassel claims that (1) Hearing Officer Schmidt improperly applied a subjective standard in violation of Judge Souter's order, and (2) he did not receive due process in the Doyle meeting and is therefore entitled to back pay.\\nOn cross-appeal, the State claims that good faith, subjective dissatisfaction with employee performance is sufficient to terminate probationary employees under the collective bargaining agreement.\\nIII, DISCUSSION\\nA. Standard of Review\\n\\\"When the superior court acts as an intermediate court of appeal, we review the merits of the underlying administrative decision independently, giving no deference to the superior court's decision.\\\" In reviewing administrative decisions, we apply four principal standards:\\nthe \\\"substantial evidence\\\" test for questions of fact; the \\\"reasonable basis\\\" test for questions of law involving agency expertise; the \\\"substitution of judgment\\\" test for questions of law where no agency expertise is involved; and the \\\"reasonable and not arbitrary\\\" test for review of administrative regulations.\\nBecause the interpretation of a contract is a question of law, we substitute our own judgment. Whether an employee was terminated for just cause or for an illegitimate reason is a question of fact which we review for substantial evidence. Substantial evidence exists when, in light of the whole record, reasonable minds might accept the administrative agency's decision. We do \\\"not independently reweigh the evidence\\\" nor \\\"choose between competing inferences\\\" but \\\"only determine whether such evidence exists.\\\" \\\" It is a legal question whether the quantum of evidence is substantial.\\nB. The State-APEA Collective Bargaining Agreement Required Objective Grounds to Terminate Cassel as a Probationary Employee.\\nIn furtherance of the constitutionally mandated merit principle in public employment, the legislature has required a probationary period for state employees prior to attaining permanent status. This probationary period \\\"is an integral part of the examination process which is to be used to evaluate the employee's work and to reject any employee whose performance is not acceptable.\\\"\\nThis court has previously addressed the question of whether language in an employment contract required objective grounds for terminating a probationary employee. In University of Alaska v. Tousen, we addressed whether the University of Alaska's personnel regulations required an objective basis for the dismissal of a probationary employee. The University argued that the regulation at issue was analogous to a satisfaction contract that permits the dismissal of the probationary employee upon the employer's subjective, good faith dissatisfaction with the employee's performance. We rejected this argument, determining that \\\"the regulation more clearly resembles an agreement permitting termination only when objective standards of performance are not satisfied.\\\" We defined \\\"objective standards\\\" broadly in this context as \\\"standards that exist by reference to external sources such as employee rules and regulations or standards that a reasonable person would use in evaluating an employee's performance.\\\" The University regulation referred to objective standards and thus did not resemble a satisfaction contract, under which the employer may terminate an employee as long as the employer, in good faith, is actually dissatisfied with the employee's performance.\\\" We concluded that the wording of the University regulation \\\"suggest[(ed] a process involving objective standards rather than mere personal beliefs.\\\"\\nIn the instant case, Judge Souter determined that the State-APEA collective bargaining agreement and the \\\"Rater's Guide to Performance Appraisals\\\" set forth \\\"uniform standards . [for the] rating of a probationary employee.\\\" Because of these uniform standards, Judge Souter reasoned that Tousen applied and that Cassel \\\"was subject to termination only for good cause.\\\" In its cross-appeal, the State argues that probationary employees, like at-will employees, may properly be dismissed under the State-APEA agreement upon a supervisor's good faith, personal dissatisfaction with employee performance.\\nAs a matter of contract interpretation, we reject the State's argument and conclude that the State-APEA agreement, like the regulations discussed in Tousen, permits termination only when a probationary employee has failed to satisfy objective standards of performance. First, the State-APEA agreement explicitly requires written performance evaluations of probationary employees.\\\" \\\" Section 18.17(A) provides that probationary employees \\\"shall receive written performance evaluations.\\\" Furthermore, negative perfor mance evaluations are explicitly linked to nonretention; raters may recommend personnel actions on the performance evaluations.\\nMore importantly, the State-APEA agreement creates an objective standard for dismissing probationary employees: the unsatisfactory completion of the probationary period with reference to the uniform Rater's Guide standards. Under Section 18.17(D), the State has the responsibility \\\"to provide the uniformity of the application of standards by different rating officers by providing training and a 'Rater's Guide' to supervisors who have the responsibility of evaluating\\\" employees. These factors indicate that the State may not terminate probationary employees on a whim under the State-APEA collective bargaining agreement; termination must be based on a failure to meet objective standards either set forth in employee regulations or \\\"that a reasonable person would use in evaluating an employee's performance.\\\"\\nIn sum, after analyzing the State-APEA agreement in light of Tousen, we conclude that, as a matter of contract interpretation, the superior court did not err in rejecting the State's argument on cross-appeal that it could terminate Cassel, as a probationary employee, merely because of a supervisor's personal dissatisfaction with his performance without regard to objective standards.\\nC. Objective Grounds Support Cassel's Termination.\\nIn his appeal, Cassel argues that the Department of Administration failed to comply with Judge Souter's remand order and to apply an objective standard as required by Tovsen.\\nIn Broun v. Alaska Commercial Fishing & Agriculture Bank,\\\" \\\" we enunciated the court's proper role in assessing terminations for cause.\\\" A court reviews such a termination to ensure that it \\\"is not for any arbitrary, capricious, or illegal reason and . is . based on facts (1) supported by substantial evidence and (2) reasonably believed by the employer to be true.\\\" \\\" This approach thus \\\"checks the subjective good faith of the employer with an objective reasonable belief standard.\\\" As in Tousen, this court will uphold a good faith termination upon substantial evidence of \\\"an objective failure to meet acceptable standards,\\\" in other words, \\\"when objective standards of performance are not satisfied.\\\"\\nHearing Officer Schmidt correctly set forth and applied the objective standard requirements of Tousen and Brawn. First, Schmidt properly concluded that unsatisfac tory performance of duties constituted just cause for termination. This conclusion clearly comports with the State-APEA agreement, which defines \\\"just cause\\\" as \\\"incompetence, wnsatisfactory performance of duties, unexcused absenteeism, intoxication, substance abuse, dishonesty and gross disobedience.\\\" (Emphasis added.)\\nSecond, Hearing Officer Schmidt properly applied an objective standard. Cassel claims that Schmidt erred by relying on the subjective evaluations of Cassel's supervisor rather than substituting her own evaluation of Cassel's performance in light of objective standards. But a supervisor's performance evaluation invariably involves that supervisor's personal assessment of the employee's performance. The hearing officer's duty under Brawn and Tousen is to ensure that the supervisor's evaluations were made in good faith and in reference to objective performance standards. Therefore, Schmidt did not err in concluding that satisfactory performance was to be judged by the supervisor or in relying heavily on Bischoff's evaluation of Cassel. |\\nBischoff described a number of shortcomings that were cited by Schmidt: (1) Cassel's draft capital budget \\\"needed major work\\\" and had to be completed by a different employee; (2) Cassel did not interact on a routine basis with other key team members; (8) Cassel required direction and did not adequately act in an independent and proactive manner; (4) Cassel did not foeus on his primary mission of fingerprint processing but rather emphasized the cultivation of alliances with coordinate law enforcement divisions; (5) Cassel would have missed a deadline for submitting a document had another employee not completed the written product; (6) Cas-sel mishandled an alleged sexual harassment incident and an equipment fire; (7) Cassel did not pay enough personal attention and inappropriately delegated responsibility with respect to the automation of work flow processes; (8) Cassel's management resulted in a large backlog of requests and numerous complaints; and (9) Cassel's monthly reports failed to provide the expected management analysis.\\nCo-worker Kathy Mather corroborated Bischoffs assessments regarding Cassel's contribution to the backlog and his poor management abilities. Another co-worker, John McGhee, testified that Cassel had improperly conducted employment interviews, gave out incorrect information to the public, contributed to the work backlog, and improperly accessed a law enforcement information system {(ASPIN) for personal use.\\nIn light of this evidence, we concur with Judge Murphy that substantial evidence supported the hearing officer's decision. The cited criticisms of Cassel touch on several aspects of managerial performance: supervision, delegation, communication, execution, analysis, judgment, and prioritization. These are precisely the areas that a reasonable person would examine in evaluating a supervisory employee's performance.\\nBecause Hearing Officer Schmidt relied on evidence of Cassel's failure to meet objective managerial) performance standards, we conclude that the superior court was correct in affirming her decision.\\nD. The Superior Court Did Not Err in Denying Cassel Back Pay.\\nFollowing Judge Souter's order remanding the case for an objective good cause determination, Cassel moved to clarify the remedy. In particular, Cassel sought back pay for the State's failure to provide an adequate due process hearing. After hearing arguments, Judge Souter denied Cassel's motion, concluding that Cassel had received due process through the post-termination meeting convened under the complaint procedures of the collective bargaining agreement. Cassel claims that this decision was erroneous because the Doyle meeting was not an adequate adversarial hearing.\\nIn Storrs v. Municipality of Anchorage, we determined that public employees terminable only for cause under a collective bargaining agreement \\\"have a sufficient property interest in continued employment to warrant due process protection prior to termination.\\\" This due process protection arises from both the federal and Alaska constitutions. Furthermore, \\\"[when a constitutionally unlawful dismissal is cured by a post-termination hearing, the employee is entitled to be paid for the period between dismissal and the curative hearing.\\\"\\nOrdinarily, the public employee is entitled to an adversarial hearing before termination. However, in limited cireum-stances, a post-termination adversarial hearing may satisfy the due process requirements \\\"when a collective bargaining agreement waives the constitutionally mandated preter-mination adversarial hearing . [and] provides fair, reasonable, and efficacious procedures by which employer-employee disputes may be resolved.\\\" Although a full eviden-tiary hearing is not required, the procedures must provide an opportunity for the employee \\\"to present a defense by testimonial and other evidence. When the collective bargaining agreement provides such procedures, the employee suffers no due process violation through the use of a post-termination hearing and thus is not entitled to back pay.\\nBecause Cassel received no pretermination hearing, the central dispute is whether the State-APEA agreement provides for a post-termination adversarial hearing that is fair, reasonable, and efficacious. In contrast to the heightened grievance procedures available to permanent employees under Section 10.2, probationary employees may appeal their dismissals solely through the complaint procedure provided in Section 10.1. Under the complaint procedure of Section 10.1(5)(c), APEA may present the appeal of a probationary employee's dismissal to the Commissioner of Administration. Upon request, \\\"a meeting between the [APEA] Representative and the Commissioner or a designee will be convened to discuss the complaint.\\\" The Commissioner is then required to issue a decision within twenty days of that meeting.\\nHere, after Cassel appealed to the Commissioner of Administration, he met with State labor analyst Mila Doyle to discuss his complaint. APEA official Dennis Geary represented Cassel at the meeting and provided documentary evidence to Doyle. Although the participants did not take oaths or engage in cross-examination, Cassel had the opportunity to present his position to Doyle and call a witness, Lieutenant Jay Yakopatz, to provide further information. One month later, Doyle submitted a short memorandum entitled \\\"Complaint Synopsis\\\" to Commissioner Boyer, analyzing the parties' positions and offering recommendations. Commissioner Boyer then denied Cassel's complaint.\\nWe conclude that these procedures represent a \\\"fair, reasonable, and efficacious\\\" means of dispute resolution. The post-termination procedures accepted by APEA and provided to Cassel by the State do not constitute a due process violation. Because Cassel received \\\"fair, reasonable, and efficacious\\\" post-termination procedures in accordance with the collective bargaining agreement, Cassel received due process and is therefore not entitled to back pay.\\nIV. CONCLUSION\\nFor the foregoing reasons, we AFFIRM Cassel's termination and the denial of back pay.\\n. 835 P.2d 445 (Alaska 1992).\\n. Bartlett v. State, Commercial Fisheries Entry Comm'n, 948 P.2d 987, 990 (Alaska 1997).\\n. Rollins v. State, Dep't of Revenue, Alcoholic Beverage Control Bd., 991 P.2d 202, 206 (Alaska 1999).\\n. See Alaska Hous. Fin. Corp. v. Salvucci, 950 P.2d 1116, 1119 (Alaska 1997).\\n. See Jones v. Central Peninsula Gen. Hosp., 779 P.2d 783, 789 (Alaska 1989).\\n. See Municipality of Anchorage, Police & Fire Retirement Bd. v. Coffey, 893 P.2d 722, 726 (Alaska 1995) (internal quotation omitted).\\n. Id.\\n. See Fireman's Fund Am. Ins. Cos. v. Gomes, 544 P.2d 1013, 1015 (Alaska 1976).\\n. See Alaska Const. art. XII, \\u00a7 6.\\n. See AS 39.25.150(7); 2 Alaska Administrative Code (AAC) 07.240 (1999).\\n. 2 AAC 07.240.\\n. 835 P.2d 445, 446-48 (Alaska 1992).\\n. University Regulation 04.01.06 provided in part:\\nAll non-exempt and exempt (non-faculty) employees shall be in probationary status for the first six months of employment. The performance of these employees shall be evaluated prior to the end of the probationary period.\\nB. If the employee's performance is found to be unsatisfactory, the employee will be terminated.\\nTovsen, 835 P.2d at 446 n. 1.\\n. See Tovsen, 835 P.2d at 446.\\n. Id. at 447.\\n. Id. at 447 n. 2.\\n. See id. at 446 (citing 53 Am.Jur.2d, Master and Servant \\u00a7 37, at 113 (1970)). Satisfaction contracts typically contain the phrase \\\"as long as his services are satisfactory to the employer.\\\" Id. (quoting John C. McCarthy, Recovery of Damages for Wrongful Discharge 2d \\u00a7 3.53, at 286 (1990)).\\n. Id. at 447.\\n. The State claims the superior court's reference to the Rater's Guide constituted error on the ground that the Rater's Guide was not part of the employment contract. But the Rater's Guide constitutes an \\\"external source\\\" of employee performance standards and was referenced by name in \\u00a7 18.17(D) of the State-APEA agreement. See Tovsen, 835 P.2d at 447 n. 2. We accordingly conclude that the superior court did not err in citing the Rater's Guide.\\n. See Toysen, 835 P.2d at 447 (\\\"the regulation itself directs that the performance of probationary employees be evaluated; a probationary employee may be terminated if his or her performance is found to be unsatisfactory.\\\") (internal punctuation omitted).\\n. See Tovsen, 835 P.2d at 447, 447 n. 2 (discussing agreement that permits termination only for failure to satisfy objective standards of performance, ie., standards with reference to \\\"external sources such as employee rules and regulations or standards that a reasonable person would use in evaluating an employee's performance\\\"); see also Stanfill v. City of Fairbanks, 659 P.2d 579, 583 (Alaska 1983) (requiring just cause for termination of probationary employee where city personnel ordinance provided performance-related grounds for dismissal, namely \\\"inability or unwillingness to perform the job or unsuitability for the position\\\"\\\").\\n. Tovsen, 835 P.2d at 447 n. 2. Given the agreement's framework of performance evaluations based on objective standards, the fact that \\u00a7 18.12 explicitly ties the retention of probationary employees to \\\"the judgment of the Employer\\\" does not by itself create a satisfaction contract.\\n. We note that, while this particular contract requires a failure of objective standards to warrant termination of probationary employees, just cause is not per se required for the termination of probationary employees. We do not hold that the State is precluded from negotiating a satisfaction contract with APEA or other labor unions in order to establish an at-will employment relationship with probationary employees.\\n. See 835 P.2d at 446-47.\\n. 816 P.2d 140 (Alaska 1991).\\n. See Manning v. Alaska R.R. Corp., 853 P.2d 1120, 1125 n. 2 (Alaska 1993) (citing Braun, 816 P.2d at 142).\\n. Braun, 816 P.2d at 142 (quoting Baldwin v. Sisters of Providence in Wash., Inc., 112 Wash.2d 127, 769 P.2d 298, 304 (1989)).\\n. Baldwin, 769 P.2d at 304.\\n. 835 P.2d at 447.\\n. Cassell further claims that his due process rights 'were violated because the Doyle meeting did not apply the \\\"just cause\\\" standard. But Cassel has cited no legal authority for this proposition. We therefore reject this argument. See Adamson v. University of Alaska, 819 P.2d 886, 889 n. 3 (Alaska 1991) (\\\"where a point is given only a cursory statement in the argument portion of a brief, the point will not be considered on appeal\\\").\\n. 721 P.2d 1146 (Alaska 1986).\\n. Id. at 1148. Cf. Chijide v. Maniilaq Ass'n of Kotzebue, Alaska, 972 P.2d 167, 171-72 (Alaska 1999) (finding no property interest in continued employment where employee could be fired at any time without cause and worked under year-to-year contract that could be renewed or not renewed for any reason); Breeden v. City of Nome, 628 P.2d 924, 926 (Alaska 1981) (\\\"A person who is employed 'at the pleasure' of his employer has no 'property' interest in continued employment that is protected by due process.\\\").\\n. See Storrs, 721 P.2d at 1148, 1150.\\n. Id. at 1151.\\n. See id. at 1150.\\n. Id. (citations and quotations omitted); see also Chaney v. Suburban Bus Div. of Regional Transp. Auth., 52 F.3d 623, 628-630 (7th Cir.1995); Wallace v. Tilley, 41 F.3d 296, 301-02 (7th Cir.1994); Buttitta v. City of Chicago, 9 F.3d 1198, 1206 (7th Cir.1993).\\n. Storrs, 721 P.2d at 1150; see also City of North Pole v. Zabek, 934 P.2d 1292, 1298 (Alaska 1997) (concluding that terminated employee received due process because of adversarial proceeding and representation by counsel, and her ability to frame issues and submit witness affidavits); North Slope Borough v. Barraza, 906 P.2d 1377, 1383-84 (Alaska 1995) (Matthews, J., concurring) (stating that Storrs properly articulated requirements for pretermination hearing); Nichols v. Eckert, 504 P.2d 1359, 1365 (Alaska 1973) (\\\"A full judicial hearing is not necessary, but a hearing that allows the administrative authority to examine both sides of the controversy will protect the interests and rights of all who are involved.\\\").\\n. See Storrs, 721 P.2d at 1151 (noting that back pay is only available for \\\"constitutionally unlawful\\\" dismissal).\"}"
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+"{\"id\": \"11212301\", \"name\": \"NORTHERN ALASKA ENVIRONMENTAL CENTER and Sierra Club, Appellants, v. STATE of Alaska, DEPARTMENT OF NATURAL RESOURCES, and John T. Shively, in his official capacity as Commissioner thereof, and Golden Valley Electric Association, Appellees\", \"name_abbreviation\": \"Northern Alaska Environmental Center v. State, Department of Natural Resources\", \"decision_date\": \"2000-06-02\", \"docket_number\": \"No. S-9367\", \"first_page\": \"629\", \"last_page\": \"639\", \"citations\": \"2 P.3d 629\", \"volume\": \"2\", \"reporter\": \"Pacific Reporter 3d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T19:52:48.231876+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before MATTHEWS, Chief Justice, EASTAUGH, FABE, BRYNER, and CARPENETI, Justices.\", \"parties\": \"NORTHERN ALASKA ENVIRONMENTAL CENTER and Sierra Club, Appellants, v. STATE of Alaska, DEPARTMENT OF NATURAL RESOURCES, and John T. Shively, in his official capacity as Commissioner thereof, and Golden Valley Electric Association, Appellees.\", \"head_matter\": \"NORTHERN ALASKA ENVIRONMENTAL CENTER and Sierra Club, Appellants, v. STATE of Alaska, DEPARTMENT OF NATURAL RESOURCES, and John T. Shively, in his official capacity as Commissioner thereof, and Golden Valley Electric Association, Appellees.\\nNo. S-9367.\\nSupreme Court of Alaska.\\nJune 2, 2000.\\nThomas S. Waldo and Eric Jorgensen, Earthjustice Legal Defense Fund, Juneau, and Steven C. Davis, Seattle, Washington, for Appellants.\\nMary Ann Lundquist, Assistant Attorney General, Fairbanks, and Bruce M. Botelho, Attorney General, Juneau, for Appellee State of Alaska.\\nJohn J. Burns and Thomas R. Manniello, Borgeson & Burns, PC, Fairbanks, and Peter H. Haller and Leslie R. Schenck, Ater Wynne, LLP, Seattle, Washington, for Ap-pellee Golden Valley Electric Association.\\nBefore MATTHEWS, Chief Justice, EASTAUGH, FABE, BRYNER, and CARPENETI, Justices.\", \"word_count\": \"5250\", \"char_count\": \"33490\", \"text\": \"OPINION\\nFABE, Justice.\\nI. INTRODUCTION\\nThe Department of Natural Resources granted Golden Valley Electric Association a right-of-way permit for the construction of an electric transmission line across sixty-five miles of state land between Healy and Fairbanks. DNR claims that this permit is exempted from the best interest finding requirement of AS 38.05.085(e) due to its revocable nature. Because the permit is not revocable for purposes of AS 38.05.035(e)(6)(C), we reverse and remand to DNR for a best interest finding.\\nII FACTS & PROCEEDINGS\\nIn 1993 the legislature appropriated $48.2 million for the construction of a second electric transmission line between Healy and Fairbanks (Northern Intertie). In August 1996 Golden Valley Electric Association (Golden Valley), a not-for-profit electric cooperative, applied to the Department of Natural Resources (DNR), Division of Lands for a right-of-way permit to build the Northern Intertie. In its permit application, Golden Valley sought a right-of- way 150 feet wide and sixty-five miles long, encompassing an area of approximately 1,200 acres.\\nBecause potential routes for the Northern Intertie crossed federal lands, Golden Valley also sought approval from the Bureau of Land Management (BLM). BLM prepared an Environmental Impact Statement for the proposed intertie that analyzed at least seven alternative routes. The Final Environmental Impact Statement, issued in June 1998, ree-ommended construction of the Northern In-tertie along the \\\"Rex/South\\\" route.\\nIn that same month, DNR issued its proposed decision, which also recommended construction of the Northern Intertie along the Rex/South route. DNR explicitly relied on the Final Environmental Impact Statement as the basis for its proposed decision. Following a month-long comment period, DNR issued its decision, which recommended granting Golden Valley a thirty-year right-of-way permit along the Rex/South route. Northern Alaska Environmental Center (Northern Center) appealed DNR's decision to the Commissioner of Natural Resources. After briefing and oral arguments, the commissioner remanded the Northern Intertie decision to DNR to address fully DNR's role in the environmental assessment and route selection processes.\\nOn February 22, 1999, DNR issued its decision on remand. DNR concluded that the right-of-way permit was specifically exempted from the AS 88.05.035(e) best interest finding requirement because: (1) it was \\\"a permit or other authorization revocable by the commissioner,\\\" and (2) it did not dispose of an interest in land. Instead, DNR determined that AS 38.05.850(a) governed the issuance of the permit: DNR \\\"shall give preference to that use of the land that will be of greatest economic benefit to the state and the development of its resources.\\\" In making this determination, DNR considered whether any competing uses of the Rex/ South route would bring greater economic benefit. DNR ultimately concluded that the \\\"Northern Intertie [gave] the greatest economic benefit to the state\\\" and authorized the issuance of the right-of-way permit.\\nConsistent with this decision on remand, DNR issued the right-of-way permit to Golden Valley, effective February 22, 1999. The permit, entitled \\\"Land Use Permit Under AS 38.05.850,\\\" contains the following provision: \\\"This permit is not a property right. It is a temporary authorization, revocable by the state with or without cause. This permit is effective beginning February 22, 1999, and ending on February 21, 2004, unless sooner terminated at the state's discretion.\\\" Further, Golden Valley's \\\"right-of-way permit will be issued for a term of thirty years and will be subject to renewal.\\\"\\nNorthern Center requested reconsideration of DNR's decision on remand. The commissioner rejected this request on March 26, 1999. Northern Center and Sierra Club filed an appeal in superior court. The superior court affirmed DNR's grant of the right-of-way permit.\\nNorthern Center and Sierra Club appeal.\\nIII, DISCUSSION\\nA. Standard of Review\\nWhen the superior court acts as an intermediate court of appeal, we give no deference to its decision.\\\" Rather, we review the merits of the administrative agency determination directly. The standard of review for agency decisions of law depends on whether agency expertise is implicated. We apply the \\\"reasonable basis\\\" test to questions of law involving agency expertise but apply the \\\"substitution of judgment\\\" test where no expertise is involved. The substitution of judgment standard thus applies where the agency's expertise provides little guidance to the court or where the case concerns \\\"statutory interpretation or other analysis of legal relationships about which courts have specialized knowledge and expertise.\\\"\\nThe parties disagree about whether DNR's expertise is implicated by its interpretation of AS 38.05.035(e). The statutory interpretations contested on appeal are: (1) whether the right-of-way permit is a \\\"disposal\\\" of an \\\"interest in land\\\" within the meaning of AS 38.05.035(e) and (2) whether the permit is \\\"revocable\\\" within the meaning of AS 38.05.035(e)(6)(C).\\nWe review the agency's interpretation of such non-technical statutory terms under the substitution of judgment standard. In State v. Aleut Corp., we reviewed whether the Division of Lands had complied with AS\\n38.05.305 prior to conducting a public land auction. The Division of Lands contended that the reasonable basis test applied to its interpretations of \\\"adjacent to,\\\" \\\"other organized community,\\\" and \\\"local authorized planning agencies.\\\" In rejecting the reasonable basis approach, we concluded:\\nThe terms of AS 88.05.305 are not technical, and mere familiarity in their application by the Division of Lands does not render that agency any better able to discern the intent of the legislature than the courts. We will therefore apply our own independent judgment as to whether the agency's interpretation complies with the legislature's intent.\\nIn light of this precedent, we conclude that the interpretation of the terms \\\"disposal,\\\" \\\"interest in land,\\\" and \\\"revocable\\\" does not implicate agency expertise or broad policy formulations. Thus, we apply the substitution of judgment standard to DNR's interpretation of these non-technical terms.\\nB. Because the Northern Intertie Permit Is Not Functionally Revocable, AS 38.05.085(e) Requires a Best Interest Finding.\\nDNR determined that a best interest finding was not required under AS 38.05.085(e) because (1) the grant of the right-of-way permit is not a \\\"disposal\\\" of an \\\"interest in land,\\\" and (2) the right-of-way permit is \\\"revocable\\\" and therefore exempted under AS 38.05.035(e)(6)(C). - Northern Center challenges both determinations. \\u00a9\\nThis case presents issues of pure statutory interpretation. - \\\"Statutory construction begins with an analysis of the language of the statute construed in view of its purpose.\\\" We construe statutes \\\"to give effect to the intent of the legislature, with due regard for the meaning that the statutory language conveys to others.\\\" Thus, we construe terms according to their common usage, unless a term has acquired a peculiar meaning due to statutory definition or judicial construction.\\n1. DNR's grant of a right-of-way permit is a \\\"disposal\\\" of an \\\"interest in land\\\" under AS 38.05.085(e).\\nAlaska Statute 38.05.035(e) provides: \\\"Upon a written finding that the interests of the state will be best served, the director [of the Division of Lands] may, with the consent of the commissioner, approve contracts for the sale, lease, or other disposal of available land, resources, property, or interests in them.\\\"\\nAlthough DNR here asserts a contrary position, we note at the outset that DNR regulations-namely 11 AAC 55.040-specifi-cally indicate that grants of rights-of-way or easements for electric utility lines are disposals of an interest of land under AS 38.05.035(e) subject to the best interest finding requirement. Notwithstanding this important admission, we will address the parties' arguments in turn.\\nFirst, DNR maintains that a revocable right-of-way permit is not an \\\"interest in land.\\\" Indeed, both the permit itself and the decision on remand state that the permit does not convey an interest in land. But focusing on substance rather than form, we note that licenses, such as revocable land use permits, are generally considered interests in land. Courts have generally denied licenses the status of interests in land for the limited purposes of constitutional protections and compliance with the Statute of Frauds. Given the broad constitutional mandate to protect the public interest in dispositions of state land, we construe \\\"interests in land\\\" to include interests such as licenses.\\nThe parties also disagree about whether the grant of a right-of-way permit is a \\\"disposal\\\" for purposes of AS 88.05.085(e). Northern Center argues that the existence of a specific exemption in AS 38.05.085(e)(6)(C) for permits indicates that the definition of disposal would include permits in the absence of such an exemption. Indeed, a leading treatise on statutory interpretation confirms this position: \\\"statutory exceptions exist only to exempt something that would otherwise be covered.\\\" This rule' comports with our rules of statutory interpretation:\\nIt is an 'established principle of statutory construction that all sections of an act are to be construed together so that all have meaning and no section conflicts with another. Further, where one section deals\\nwith a subject in general terms and another deals with a part of the same subject in a more detailed way, the two should be harmonized, if possible.\\nThese rules of statutory interpretation support Northern Center's argument that revocable permits are included within the term \\\"disposal.\\\"\\nDNR contends that the grant of the right-of-way permit is not a disposal because of its limited duration and subject matter. First, DNR claims that the general and technical meanings of disposal-as defined in dictionaries, case law, and Alaska Attorney General Opinions\\u2014require a final and irreversible conveyance of property rights. Under the very terms of AS 38.05.035(e), however, a disposal need not be a permanent conveyance of property rights. Alaska Statute 38.05.035(e) provides that the Division of Lands can, \\\"with the consent of the commissioner, approve contracts for the sale, lease, or other disposal of available land, resources, property, or interests in them.\\\" By using this language the legislature manifested its intent that \\\"leases\\\" be included in its definition of a \\\"disposal.\\\" According to the doctrine of ejusdem generis, when a general word follows a list of specific persons or things, the general word will be construed to apply only to persons or things of the same type as those specifically listed. A \\\"lease\\\" is generally defined as an \\\"[a]greement under which the owner gives up possession and use of his property . for definite tern and at end of term owner has absolute right to retake, control and use property.\\\" Thus, under the principal of ejusdem generis, the term \\\"disposal\\\" as used in AS 38.05.035(e) is not limited to final and permanent conveyances of property rights but rather includes property interests of limited duration such as permits and leases.\\nSecond, DNR argues that the grant of a right-of-way permit is not a disposal because it does not convey an exclusive pos-sessory interest. DNR contends that, under the ejusdem generis principle, the specific terms \\\"sale\\\" and \\\"lease\\\" require the general term \\\"disposal\\\" to encompass only transfers of possessory interests. But leases do not necessarily convey such interests. Certain leases\\u2014including leases of tideland, shore-land, and submerged land; grazing leases; and mining leases \\u2014convey nonexclusive possessory interests. A right-of-way permit for a transmission line similarly constitutes a nonexclusive possessory interest. For -example, the state could concurrently grant a grazing lease on the Intertie right-of-way. Because both leases and right-of-way permits may convey nonexclusive interests, DNR's ejusdem generis argument fails.\\nFurther, the legislature has clearly indicated that disposals under the Alaska Land Act may convey a very narrow bundle of interests. Former subsection (a) of AS 38.05.321 provided: \\\"The sale, lease or other disposal of state land classified as agricultural land transfers only rights for agricultural purposes, and all other interests in the land remain with the state unless otherwise required by law.\\\" Thus, the limited nature of the rights transferred by the state does not remove the issuance of a right-of-way permit from the scope of the term \\\"disposal.\\\"\\nDNR also argues that reading \\\"disposal\\\" to include right-of-way permits would create an impermissible inconsistency in the statutory framework. Under AS 38.05.035(e), disposals require the approval of the Commissioner of Natural Resources. But under AS 38.05.850(a), rights-of-way, easements, and permits may be issued \\\"without the prior approval of the commissioner.\\\"\\nDNR argues that these conflicting provisions indicate that right-of-way permits are not included under AS 38.05.085(e).\\nNorthern Center contends that this framework \\\"favors overlapping applicability, not mutual exclusivity.\\\" We agree. In order to give effect to each statutory provision, we interpret AS 838.05.850(a) as exempting certain disposals of interests in land-permits, rights-of-way, and easements granted for particular enumerated uses-from the approval requi- rement. _ Alaska - Statute 38.05.850 does not serve to exclude these grants from the purview of AS 838.05.035(e) altogether. We note that sales of an interest in land worth no more than $50,000 and leases with an average rental value of less than $5,000 similarly do not require commissioner approval under AS 88.05.085(c)(4) but they are still subject to the best interest finding requirement. Applying principles of statutory construction, we conclude that AS 38.05.850 exempts right-of-way permits from the approval requirement but does not exempt such disposals from the AS 38.05.085(e) best interest finding requirement.\\nIn conclusion, we hold that the issuance of a right-of-way permit is a disposal of an interest in land for purposes of AS 38.05.035(e).\\n2. The right-of- way permit is not revocable for purposes of _- AS 38.05.085(e)(6)(C)'s exception.\\nAlthough we conclude that the grant of a right-of-way permit is considered a disposal of an interest in land for purposes of AS 38.05.035(e), DNR need not make a best interest finding if the permit is deemed revocable. Under AS 38.05.085(e)(6)(C), a written best interest finding is not required before the approval of \\\"a permit or other authorization revocable by the commissioner.\\\"\\nNorthern Center does not dispute that the right-of-way permit is revocable by its own terms. Rather it contends that the cost and magnitude of the construction, as well as the claimed importance of the Healy-Fairbanks intertie, render the permit not \\\"revocable in a practical, real world sense.\\\"\\nIn Wilderness Society v. Morton, the D.C. Cireuit encountered a similar argument. Environmental groups challenged the Department of Interior's intended grants of rights-of-way and special land use permits for the construction of the Alaska pipeline. Because section 28 of the Mineral Leasing Act of 1920 limited pipeline rights-of-way to twenty-five feet on either side, Alyeska Pipeline Service Company applied for a permit for the additional area needed for pipeline construction. In its permit application, Alyeska recognized \\\"that any authorization to use the space . will remain at all times revocable at will by the government, without cause or justification.\\\" Plaintiffs claimed that this permit would violate 48 C.F.R. \\u00a7 2920.3(a)(1) because it would not truly be \\\"revocable.\\\"\\nJudge J. Skelly Wright, writing for the majority, discussed two tests for revocability. The first test \\\"focuses on the likelihood of revocation as opposed to the mere legal right to revoke.\\\" Under this test, a permit would not be revocable where revocation would result in the destruction of the licensee's sizable investments. In such cases, the reserved right of revocation belies the reality that the permit is functionally irrevocable. Judge Wright concluded that the permit failed this first test: \\\"the entire pipeline investment rests on continuing availability of the [permit] area [for maintenance and servicing purposes}, and therefore, despite the fact that the application states that the [permit] is revocable and temporary, it is for all real purposes irrevocable.\\\"\\nUnder the second test, the court focuses on whether, upon revocation, the licensee could remove the installed structures, or otherwise vacate the land, without permanently damaging or destroying the property for governmental use. The Wilderness Society court determined that the permit violated the second test because the proposed gravel work pad could not \\\"be removed without producing - permanent - and - deleterious changes in the underlying land.\\\" The court cited the harmful effects with respect to vegetation, erosion, and the permafrost.\\nBecause the permit failed both tests, the court did not decide which test controlled. In finding the permit not revocable, Judge Wright concluded that, when the permitted use is not temporary or occasional, but is functionally permanent, \\\"the matter cannot be papered over merely by designating it as 'revocable' when it is not intended to be revocable and, in the nature of things, is not in fact revocable.\\\"\\nWe endorse Judge Wright's functional analysis of revocability in Wilderness Society and conclude that the revocable permit exception to the best interest finding requirement applies only if the permit is functionally revocable. Revocability for purposes of AS 38.05.085(e)(6)(C) should be assessed under a hybrid approach which analyzes both (1) the likelihood of revocation and (2) the long-term and harmful character of the environmental impact. Because of the \\\"importance of our land resources and of the concomitant necessity for observance of legal safeguards in the disposal or leasing of state lands,\\\" we must analyze the true nature of the proposed project and submit functionally irrevocable permits to the scrutiny of a best interest finding.\\nAfter analyzing the Wilderness Society factors, we conclude that the Northern Inter-tie permit is not functionally revocable and is therefore subject to the AS 88.05.085(e) best interest finding requirement. Applying the first Wilderness Society factor, the permit has a negligible likelihood of revocation. The Northern Intertie project involves an enormous expenditure of resources, utilizing over $40 million in funds appropriated by the legislature. This massive investment would be destroyed if DNR ever revoked the permit for the entire right-of-way. Moreover, DNR maintains that Northern Intertie serves the public interest of providing Fairbanks with a more reliable and less costly energy supply. Thus, the cost and alleged importance of the Northern Intertie support our conclusion that the permit is not functionally revocable.\\nIndeed, DNR and Golden Valley conceded in oral argument that any revocation would most likely apply only to a small portion of the right-of-way, resulting in the partial rerouting of the Intertie and thus the disposal of even more state land. This concession further supports our view that the likelihood of DNR revoking the permit for the entire project is extremely remote.\\nApplying the second Wilderness Society factor, the Northern Intertie project presents the likelihood of irreversible ecological changes. According to the Draft Environmental Impact Statement, the Rex-South route requires the clearing of approximately 1,819 acres of vegetation along its 97-mile path, including 867 acres of wetlands. Scientific research cited in the Environmental Impact Statement indicates that such vegetative clearing may result in the permanent thermal degradation of the sensitive Tanana Flats permafrost.\\nIn light of the potential long-term environmental damage, the sheer magnitude of the project and concomitant investment of resources, and the asserted critical public importance, we hold that the Northern Intertie right-of-way permit is not functionally revocable and therefore is not exempted under AS 38.05.035(e)(6)(C) from the best interest finding requirement.\\nIV. CONCLUSION\\nWe REVERSE the decision of the Commissioner of the Department of Natural Resources issuing the Northern Intertie right-of-way permit to Golden Valley. Because this permit is not functionally revocable, it is not exempted from the best interest finding requirement under AS 88.05.085(e)(6)(C). Accordingly we REMAND the case to DNR for a best interest finding in accordance with AS 38.05.085(e).\\n. On December 17, 1999, after consideration of the case on an expedited basis, we issued an order reversing the decision of the Commissioner of the Department of Natural Resources and remanding for a best interest finding. We stated in our order that a full opinion of the court would follow.\\n. See ch. 19, \\u00a7 1, SLA 1993.\\n. Northern Alaska Environmental Center argues that DNR exercised very little independent analysis or judgment in selecting this alternative, but instead blindly followed BLM's decisions. Northern Center also questions the sufficiency and late revelation of DNR's stated basis for selecting the Rex/South route. We need not address these arguments here but note that they may be relevant to the best interest determination.\\n. - Alaska Statute 38.05.035(e) provides: \\\"Upon a written finding that the interests of the state will be best served, the director [of the Division of Lands] may, with the consent of the commissioner, approve contracts for the sale, lease, or other disposal of available land, resources, property, or interests in them.\\\"\\n. AS 38.05.035(e)(6)(C).\\n. AS 38.05.850(a).\\n. See Usibelli Coal Mine, Inc. v. State, Dep't of Natural Resources, 921 P.2d 1134, 1141 (Alaska 1996); Tesoro Alaska Petroleum Co. v. Kenai Pipe Line Co., 746 P.2d 896, 903 (Alaska 1987).\\n. See Usibelli, 921 P.2d at 1141; Tesoro, 746 P.2d at 903.\\n. See Usibelli, 921 P.2d at 1141 (quoting Handley v. State, Dep't of Revenue, 838 P.2d 1231, 1233 (Alaska 1992)).\\n. Kelly v. Zamarello, 486 P.2d 906, 916 (Alaska 1971); see also Hodges v. Alaska Constructors, Inc., 957 P.2d 957, 960 (Alaska 1998); Konecky v. Camco Wireline, Inc., 920 P.2d 277, 280 n. 8 (Alaska 1996) (where the \\\"issue to be resolved turns on statutory interpretation rather than the formulation of fundamental policy involving particularized expertise of administrative personnel, . we shall independently consider the meaning of the statute\\\"); Earth Resources Co. v. State, Dep't of Revenue, 665 P.2d 960, 965 n. 8 (Alaska 1983) (issues of statutory construction fall \\\"within the special competency of this court\\\").\\n. Because we decide this case under AS 38.05.035(e), we need not address the parties' arguments regarding the interpretation of AS 38.05.850(a).\\n. In contrast, where the agency interprets technical or esoteric terminology, we have applied reasonable basis review. See, eg., Pan American Petroleum Corp. v. Shell Oil Co., 455 P.2d 12, 20 (Alaska 1969) (applying reasonable basis review to DNR's interpretation of \\\"commercial quantities\\\" of oil or gas for purposes of AS 38.05.180(a) \\\"in light of the policy considerations and the particularized complexity of the subject matter\\\").\\n. 541 P.2d 730 (Alaska 1975).\\n. See id. at 736.\\n. Id.\\n16. Id. at 737.\\n. We have similarly applied the substitution of judgment standard to other DNR interpretations of the Alaska Land Act, AS 38.05. See, eg., AU Int'l, Inc. v. State, Dep't of Natural Resources, 971 P.2d 1034, 1037, n. 10 (Alaska 1999) (applying standard to question of whether mining claim owner was deemed to have \\\"abandoned\\\" its claims for purposes of AS 38.05.265); Kachemak Bay Watch, Inc. v. Noah, 935 P.2d 816, 824 (Alaska 1997) (applying independent judgment in determining which DNR actions under AS 38.05.855 were required prior to considering permit applications); Tulkisarmute Native Community Council v. Heinze, 898 P.2d 935, 940 (Alaska 1995) (interpreting statutory requirements for granting water rights permits involves no agency expertise and thus is subject to the substitution of judgment standard); Longwith v. State, Dep't of Natural Resources, 848 P.2d 257, 263 n. 5 (Alaska 1993) (reviewing DNR interpretation of statutory requirements under 38.05.035 for the grant of preference rights); Alaska Survival v. State, Dep't of Natural Resources, 723 P.2d 1281, 1288(Alaska 1986) (holding AS 38.04.065 requires regional planning prior to land disposal); Moore v. State, 553 P.2d 8, 25-26 (Alaska 1976) (applying substitution of judgment standard in determining whether AS 38.05.305 applied to oil and gas leases).\\n. Ganz v. Alaska Airlines, Inc., 963 P.2d 1015, 1017 (Alaska 1998) (citations omitted).\\n. City of Dillingham v. CH2M Hill Northwest, Inc., 873 P.2d 1271, 1276 (Alaska 1994) (citations omitted).\\n. See McDowell v. State, 957 P.2d 965, 970 (Alaska 1998).\\n.See Webster's New Collegiate Dictionary (1975) (defining \\\"dispose of\\\" as \\\"to deal with conclusively,\\\" \\\"to transfer to the control of another,\\\" and \\\"to get rid of\\\"); Black's Law Dictionary 471 (abr. 6th ed.1990) (defining \\\"dispose of\\\" as \\\"to exercise finally in any manner, one's power of control over; to pass into the control of someone else; to alienate, relinquish, part with, or get rid of''); Assiniboine & Sioux Tribes v. Nordwick, 378 F.2d 426, 429 (9th Cir.1967), cert, denied, 389 U.S. 1046, 88 S.Ct. 764, 19 L.Ed.2d 838 (1968) (describing a disposal as \\\"that final and irrevocable act by which the right of a person, purchaser, or grantee, attaches, and the equitable right becomes complete to receive the legal title by a patent or other appropriate mode of transfer\\\") (cited in 63C Am.Jur.2d Public Lands \\u00a7 40 (1997)); 1980 Informal Op. Att'y Gen. 6402, 6403 at 5 (Dec. 22, 1980) (stating that \\\"disposal\\\" suggests irreversibility).\\n. See State Farm Fire & Cas. Co. v. Bongen, 925 P.2d 1042, 1046 n. 8 (Alaska 1996) (quoting Black's Law Dictionary (6th ed.1990)).\\n. Black's Law Dictionary 615 (abr. 6th ed.) (emphasis added).\\n. Cf. AS 38.05.810(g) (providing that the state retains reversionary interest when it disposes of state land for public or charitable use).\\n. See AS 38.05.075(c)-(d).\\n. See 11 AAC 60.130.\\n. See AS 38.05.255.\\n. Ch. 1, \\u00a7 7, FSSLA 1996.\\n. This regulation permits certain disposals of interests in land prior to classification, including \\\"the granting of a right-of-way or easement for a use that has been determined in the finding required by AS 38.05.035(e) to have a minor or insignificant effect on the land and resources; such uses might include . (ii) a telephone, electric, or other utility line less than 1,500 feet in length.\\\" 11 AAC 55.040()(6).\\n. See 1983 Informal Op. Att'y Gen. 4412, 4414 \\u00ab(Dec. 15, 1983) (stating that revocable use permit \\\"did not convey an interest in land\\\"); see also Cissna v. Stout, 931 P.2d 363, 368 (Alaska 1996) (\\\"'While opinions of the attorney general are entitled to some deference, they are not controlling on matters of statutory interpretation.\\\").\\n. A permit to use land revocable at the will of the grantor is generally considered a license. See Restatement of Property \\u00a7 514, 519 (1966); Jon W. Bruce & James W. Ely, Jr., The Law of Easements & Licenses in Land 119.02[4], 10.06[1] (1988); 4 Powell on Real Property \\u00a7 34.25 (1997); 8 Thompson on Real Property \\u00a7 64.02(a) (1994); 3 Tiffany, Real Property \\u00a7 833 (1939).\\n. See Restatement of Property \\u00a7 512 cmt. c (1944) (\\\"A privilege to use certain land constitutes an interest in that land.\\\"); Thompson on Real Property \\u00a7 64.02(b); see also Hubbard v. Brown, 50 Cal.3d 189, 266 Cal.Rptr. 491, 785 P.2d 1183, 1186-87 (1990) (recognizing that license may be an interest in land for some purposes, such as taxation and statutory tort immunity, but not for other purposes, such as eminent domain).\\n. See Hubbard 266 Cal.Rptr. 491, 785 P.2d at 1186 (use permit not an interest in land for eminent domain purposes); 8 Thompson on Real Property \\u00a7 64.02(b).\\n. See Forge v. Smith, 458 Mich. 198, 580 N.W.2d 876, 883 (1998) (licenses need not comply with Statute of Frauds); 8 Thompson on Real Property \\u00a7 64.02(b).\\n. See Alaska Const. art. VIII, \\u00a7 1, 10; see also Preamble of Alaska Land Act, ch. 169, SLA 1959; Alyeska Ski Corp. v. Holdsworth, 426 P.2d 1006, 1011 (Alaska 1967) (Article VII, \\u00a7 10 \\\"reflects the framers' recognition of the importance of our land resources and of the concomitant necessity for observance of legal safeguards in the disposal or leasing of state lands.\\\").\\n. 2A Norman J. Singer, Sutherland Statutory Construction \\u00a7 47.11 at 166 (5th ed.1992).\\n29. In re Hutchinson, 577 P.2d 1074, 1075 (Alaska 1978).\\n. A right-of-way is a class of easement. See Wessells v. State, Dep't of Highways, 562 P.2d 1042, 1046 n. 5 (Alaska 1977); Jon W. Bruce & James W. Ely, Jr. The Law of Easements & Licenses in Land % 1.06[1] (1988).\\nAn easement is an \\\"interest in land owned by another person, consisting in the right to use or control the land, or an area above or below it, for a specified limited purpose.\\\" Black's Law Dictionary 527 (7th ed.1999). See also Restatement of Property \\u00a7 450, cmts. a-d; 4 Powell on Real Property \\u00a7 34.02[1]; Thompson on Real Property \\u00a7 60.02; AS 44.88.900(12) (defining \\\"real property\\\" as \\\"land and rights and interests in land, including, without limitation, interests less than full title such as easements, uses, leases, and licenses\\\").\\n. 479 F.2d 842 (D.C.Cir.1973) (en banc).\\n. 30 U.S.C. \\u00a7 185.\\n. See Wilderness Society, 479 F.2d at 848-53. Alyeska sought the permit for \\\"additional access and construction space\\\" parallel to the right-of-way. Id. at 850. This permit in effect would have widened the right-of-way 11 feet on one side and 35 feet on the other. See id.\\n. Id. at 851.\\n. 43 C.F.R. \\u00a7 2920.3(a)(1)(1972) provided: \\\"A special land use permit will be revocable in the discretion of the authorized officer at any time, upon notice, if in his judgment the lands should be devoted to another use, or the conditions of the permit have been breached.\\\" See Wilderness Society, 479 F.2d at 870.\\n. See Wilderness Society, 479 F.2d at 870.\\n. Id. at 871.\\n. See id. at 871-72.\\n. Id. at 873. DNR points out that the likelihood-of-revocation test was rejected in a later D.C. Circuit opinion. In Wilson v. Block, 708 F.2d 735 (D.C.Cir.1983), the D.C. Circuit addressed a challenge to a land use permit issued by the U.S. Forest Service. The plaintiffs argued that, despite the facial revocability of the permit, the permit was not in fact revocable \\\"because the Forest Service is unlikely to revoke it before the term of the permit expires.\\\" Id. at 760. Fully cognizant of the Wilderness Society case, the court responded: \\\"The short answer is that the Forest Service has power to revoke.\\\" Id. at 760 n. 21. While this may lessen the precedential value of Wilderness Society within the D.C. Circuit, such a statement devoid of analysis and citation in no way diminishes the persuasive force of the en banc Wilderness Society opinion joined by such eminent jurists as Judges Bazelon, Leventhal, and Wright.\\n. See Wilderness Society, 479 F.2d at 872.\\n. Id. at 874.\\n. See id. at 874-75.\\n. See id. at 872.\\n. Id. at 875.\\n. The two Wilderness Society tests are not mutually exclusive and can properly be applied in tandem. In fact, Judge Wright explicitly considered the permanent and detrimental nature of the proposed gravel pad in his discussion of the likelihood-of-revocation test. See id. at 873-75.\\n. Alyeska Ski Corp. v. Holdsworth, 426 P.2d 1006, 1011 (Alaska 1967).\\n. - This test for revocability does not conflict with our reasoning in Swindel v. Kelly, 499 P.2d 291 (Alaska 1972). In determining whether a permit is revocable, we look not only at its express terms but also at the \\\"true intent of the agreed upon license.\\\" Id. at 296 n. 16. In Swindel, we determined that the terms of the expressly revocable land use permit were determinative in the context where the project required little investment and produced no discernible public benefit. Id. at 293 mn. 2-3, 295 n. 15, 296. But where a project is enormously expensive and important to the public, the parties' true intent may not be manifested in the permit's express power to revoke. In such cases, the court may properly look beyond the express terms of the permit without running afoul of Swindel.\\n. See ch. 19, \\u00a7 1 SLA 1993.\"}"
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+"{\"id\": \"11539576\", \"name\": \"Carmen M. WEST, Appellant, v. Hiltrud A. BUCHANAN, Appellee\", \"name_abbreviation\": \"West v. Buchanan\", \"decision_date\": \"1999-06-11\", \"docket_number\": \"Nos. S-8147, 5134\", \"first_page\": \"1065\", \"last_page\": \"1075\", \"citations\": \"981 P.2d 1065\", \"volume\": \"981\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T19:15:22.768053+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before: MATTHEWS, Chief Justice, COMPTON, EASTAUGH, FABE, and BRYNER, Justices.\", \"parties\": \"Carmen M. WEST, Appellant, v. Hiltrud A. BUCHANAN, Appellee.\", \"head_matter\": \"Carmen M. WEST, Appellant, v. Hiltrud A. BUCHANAN, Appellee.\\nNos. S-8147, 5134.\\nSupreme Court of Alaska.\\nJune 11, 1999.\\nArthur L. Robson, Robson Law Office, Fairbanks, for Appellant.\\nJonathon A. Katcher, Pope & Katcher, Anchorage, for Appellee.\\nBefore: MATTHEWS, Chief Justice, COMPTON, EASTAUGH, FABE, and BRYNER, Justices.\", \"word_count\": \"6225\", \"char_count\": \"37705\", \"text\": \"OPINION\\nFABE, Justice.\\nI. INTRODUCTION\\nCarmen West appeals the superior court's dismissal of her personal injury action on statute of limitations grounds. Although West initially sued the wrong person on the last day available under the statute of limitations, she substituted Hiltrud Buchanan as the named defendant within the period allowed by court rule for service of the complaint. Because we conclude that West's amended complaint substituting Buchanan as defendant should relate back to the time of its initial filing, we reverse.\\nII. FACTS AND PROCEEDINGS\\nOn June 17, 1993, Carmen West was involved in a traffic accident with Hiltrud Buchanan, who was driving a car owned by William Bembry. That summer, West retained counsel, who began negotiating on her behalf with Allstate Insurance, the insurer of the Buchanan/Bembry vehicle. The headings on Allstate's negotiation letters referred to \\\"our insured: William Bembry.\\\"\\nBy June 1995 West and Allstate had failed to reach a settlement agreement. On June 16, 1995, the last day available under the applicable statute of limitations, West filed a complaint against Bembry. West sent the complaint and summons to Bembry by certified mail on June 19, 1995, and Bembry received them on June 22,1995.\\nAbout three months later, on September 25, 1995, West moved to amend her complaint to substitute Buchanan as the defendant. Bembry opposed on the ground of futility, arguing that the statute of limitations would bar the amended complaint since it could not properly \\\"relate back\\\" to the original filing. Superior Court Judge Ralph R. Beistline granted the motion to amend, reasoning that notice of the claim could be imputed to Bembry because he was \\\"apparently in a close relationship\\\" with Buchanan and that Buchanan \\\"was a permissive user of his automobile.\\\" Judge Beistline also relied on the fact that \\\"[njegotations were on-going to resolve the claim,\\\" concluding that it was \\\"clear that the parties understood that a claim existed arising out of this accident.\\\"\\nBuchanan,, now the named defendant, filed an answer and a Notice of Change of Judge. The case was reassigned to Superior Court Judge Niesje J. Steinkruger. Buchanan then moved for summary judgment based on West's failure to file within the applicable period of limitations. Judge Steinkruger granted Buchanan's motion for summary judgment \\\"based upon the Statute of Limitations.\\\" Implicit in this holding was Judge Steinkruger's determination that West's amended complaint did not relate back to the date of her original complaint. West moved for reconsideration, but Judge Steinkruger denied this motion. West appeals.\\nIII. STANDARD OF REVIEW\\nThe issues on review involve questions of law. We review such questions de novo. We are not bound by the lower court's decision, but have the duty to \\\"adopt the rule of law that is most persuasive in light of precedent, reason, and policy.\\\"\\nIV. DISCUSSION\\nA. Buchanan's Notice of Change of Judge Was Timely.\\nWest first suggests that Buchanan's Notice of Change of Judge was untimely. This contention is without merit. Alaska Civil Rule 42(c)(3) provides, in part:\\nWhere a party has been served or enters an action after the case has been assigned to a specific judge, a notice of change of judge shall also be timely if filed by the party before the commencement of trial and within five days after a party appears or files a pleading in the action.\\nWest argues that because the amendment to her complaint related back to the time of its initial filing, Buchanan should not have been permitted to peremptorily challenge Judge Beistline. But West's contention rests on a false premise. West asserts that \\\"Alaska Rule of Civil Procedure 42(c)(1) aggregates both Bembry and Buchanan as a single party.\\\" This interpretation is incorrect. Civil Rule 42(c)(1) explains only that \\\"[t]wo or more parties aligned on the same side of an action . shall be treated as one side for purposes of the right to a change of judge.\\\" (Emphasis added.) In its discussion of the timeliness of peremptory challenges, Civil Rule 42(c)(3) explicitly refers to parties, not sides. Moreover, the position West advocates would require Buchanan to have peremptorily challenged Judge Beistline before she was made a party to the action. To adopt West's assertion would eliminate the right of persons in Buchanan's position to peremptorily challenge a judge. The decision to allow Buchanan to peremptorily challenge Judge Beistline was correct.\\nB. Judge Steinkruger Did Not Err in Declining to Follow the Law of the Case.\\nAlthough Judge Beistline concluded that the statute of limitations did not bar amendment of the complaint because the amendment would properly relate back to the date the complaint was filed, the case was then reassigned to Judge Steinkruger, who viewed this issue differently. In granting Buchanan's motion for summary judgment based on the statute of limitations, Judge Steinkruger implicitly held that West's amended complaint would not relate back to the date her complaint was originally filed, thus overruling Judge Beistline's earlier decision. West suggests that Judge Steinkruger erred by failing to follow the law of the case.\\nStepanov v. Gavrilovich provides guidance on this issue. In Stepanov, we explained that the law of the case doctrine \\\"expresses the practice of courts generally to refuse to reopen what has been decided.\\\" This practice is not an absolute rule of law. Rather it is a matter of \\\"sound judicial policy.\\\" We recognized the power of one trial-court judge to overrule another, in the proper exercise of judicial discretion. And, \\\"[wjhile this power is not to be used lightly,\\\" we observed that it is \\\"entirely reasonable for a judge whose responsibility it is to try a case to reconsider and reverse an earlier ruling if convinced that that ruling was erroneous.\\\" Judge Steinkruger was within her discretion to reconsider whether West's amended complaint would properly relate back to the date her complaint was originally filed.\\nC. West's Amendment Substituting Buchanan as Defendant Relates Back to the Initial Filing of the Complaint.\\nIn order to determine whether West's amended complaint, which substituted Hil-trud Buchanan as the defendant, relates back to the original complaint, we must interpret the language of Alaska Civil Rule 15(c). -This provision sets forth the criteria for an amendment to relate back to the filing of the original pleading. The rule states:\\nWhenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against the party to be brought in by amendment, that party (1) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party.[ ]\\nIn determining how to interpret a particular rule, we are guided by the purpose of the rule. The purpose of Rule 15(c) is remedial: The rule is meant to liberalize the rules of pleading and to \\\"allo[w] amendments for clarification and/or correction of the original complaint without being barred by the statute of limitations.\\\" And the purpose of statutes of limitations is to protect defendants from the injustices that may result from the prosecution of stale claims.\\nWith these goals in mind, we turn to the issue before us: whether Buchanan, as the party who was brought in by amendment, received notice of the institution of the action and knew,- or should have known, that she was the proper defendant \\\"within the period provided by law for commencing the action against [her].\\\" Buchanan suggests that because the lawsuit was filed on the last day available under the statute of limitations, and she did not learn of it that day before the statute expired, the amendment substituting her as a party cannot relate back to the original complaint.\\nBuchanan argues that our decision in Adkins v. Nabors Alaska Drilling, Inc. is dispositive of this issue. In Adkins, Adkins had timely filed suit against Standard Oil and others for personal injuries. After the statute of limitations ran, Adkins attempted to amend his complaint to add Nabors, arguing that this was permitted by Rule 15(c). Adkins's position was that notice of the underlying facts of the action was the same as notice of the institution of the action. Relying on a federal court's interpretation of the word \\\"action\\\" in the analogous federal rule, we rejected this claim:\\nUnder this interpretation, any knowledge that Nabors may have had concerning Adkins' injury is irrelevant. Adkins must prove that Nabors actually knew of his suit against Standard prior to the limitations period. Adkins filed suit on July 20, 1977. The limitations period expired on August 9, 1977. In order for the amendment to relate back, Nabors must have learned of the lawsuit during this twenty-day period.[ ]\\nThus, we interpreted the notice provision of Civil Rule 15(c) to require notice of the law suit, as opposed to mere notice of the facts underlying the action.\\nWe disagree that Adkins controls this case. Adkins focused on the interpretation of the term \\\"action\\\" as used in the phrase \\\"notice of the institution of the action,\\\" rather than the phrase \\\"within the period provided by law for commencing the action against [the party].\\\" And contrary to the dissent's assertion, we did not determine in Adkins that \\\"the period provided by law for commencing the action\\\" refers to the limitations period. Thus, Adkins did not address a situation, such as this, in which the substituted defendant learned of the plaintiffs cause of action after the statute of limitations had run but before expiration of time for service on the original defendant.\\nMoreover, after we decided Adkins, we suggested in Siemion v. Rumfelt that notice within the time for service could be adequate under Rule 15(c). In Siemion, we decided that a complaint against Jeffrey Rumfelt's father could be amended to include Jeffrey because of our view that \\\"Jeffrey Rumfelt received sufficient notice of the subject claim\\\" and our \\\"belie[f that] it is reasonable to infer that Jeffrey had notice of the institution of the suit within the same time he ivould have known had he been a properly named defendant.\\\"\\nWhile Civil Rule 15(e) is not a model of clarity, we conclude that the language \\\"within the period provided by law for commencing the action\\\" must be interpreted to encompass, when the complaint is timely filed, the reasonable time for service of process permitted by the rule for a named defendant. The rule's language combines the separate concepts of commencement of an action with notice of the institution of the action. But an action may be filed and thus commenced without imparting notice to the defendant. Notice is usually given by service, which may take place as long as 120 days after filing. As a result, a properly named defendant may not receive notice of an action until 120 days after the statute of limitations runs. We can think of no reason why the rule would require the added defendant to receive notice earlier than a named defendant who is sued on the last day of a limitations period. Thus, we conclude that Rule 15(c) refers to the process of commencing an action, rather than merely filing a complaint; that process includes both timely filing and timely service.\\nWe note that the prevailing interpretation of Rule 15(c)'s federal counterpart is not a bar to our decision today. In Schiavone v. Fortune, the United States Supreme Court construed Federal Rule of Civil Procedure 15(c)(3) to require notice to the intended defendant within the time for filing a complaint under the applicable limitations period. The Schiavone court stated that the \\\"plain language\\\" of the Rule dictated its result even though \\\"there is an element of arbitrariness here.\\\" But as one commentator has noted, the \\\"disputed language is anything but plain, much less clear.\\\" Justice Stevens, joined by two other justices, came to a different conclusion than the Court's majority when interpreting the same \\\"plain language\\\":\\nThe language . does not, however, refer to the statute of limitations. Rather, it describes \\\"the period provided by law for commencing the action against him\\\" (emphasis added). As I have noted, that period includes two components, the time for commencing the action by the filing of a complaint and the time in which the action \\\"against him\\\" must be implemented by the service of process. If the party is sufficiently described in the original complaint to avoid any possibility of prejudice to the defendant, I see no reason for not construing the Rule to embrace both components of the period provided by law for bringing a timely action against a particular defendant.[ ]\\nFurthermore, as even the dissent acknowledges, commentators have heavily criticized this result. As one commentator explains, the Schiavone decision is troubling for several reasons:\\nThe majority's decision effectively vitiates the purposes of the Federal Rules of Civil Procedure in general and of Rule 15(c) in particular.... Moreover, the Schiavone Court's interpretation is clearly not in accord with Rule 8(f) in that the construction of Schiavone's pleading cannot, in any light, be seen as accomplishing substantial justice.\\n. [Finally,] [i]f a complaint against a particular defendant must be filed within the limitations period to survive Rule 15(c) scrutiny, as the Court seems to suggest, there is no need for the relation-back doctrine at all where the changing of a party is involved.[ ]\\nFinally, other state courts, when faced with interpreting state rules analogous to Federal Rule of Civil Procedure 15(c)(3) in the aftermath of Schiavone, have not felt constrained to follow the Schiavone decision with \\\"blind devotion.\\\" As the Arizona Supreme Court explained, \\\"[i]t would be foolish indeed to interpret such a rule so narrowly as to allow its use only in those cases in which it was not needed because the statute of limitations had not yet run.\\\"\\nBecause we are not bound by a decision of the -United States Supreme Court when interpreting a state rule of civil procedure and because we find these critiques of Schiavone persuasive, we decline to follow the Schiavone rationale. As long as a claim is filed within the time permitted by the applicable statute of limitations and served within the time permitted for service, the purposes of both Rule 15(c) and our statutes of limitations are satisfied. As Justice Stevens stated in his dissent in Schiavone:\\nThe principal purpose of Rule 15(c) is to enable a plaintiff to correct a pleading error after the statute of limitations has run if the correction will not prejudice his adversary in any way. That purpose is defeated \\u2014 and the Rule becomes largely superfluous \\u2014 if it is construed to require the correction to be made before the statute has run.[ ]\\nOur interpretation of Rule 15(c) better serves the rule's purpose than a reading that would preclude the relation back of an amendment where the intended defendant receives notice that is timely but that comes after the deadline for filing the complaint. We note that Federal Rule of Civil Procedure 15(c) has been amended to substitute \\\"within the period provided by law for commencing the action against him\\\" with \\\"the period provided by Rule 4[ ] for service of the summons and complaint.\\\" We regard this as further evidence both of the purpose of the rule and that our interpretation is faithful to the achievement of this purpose.\\nWe thus conclude that West has met the requirements of Rule 15(c): She has proved that Buchanan received notice of the institution of the action and knew or should have known before expiration of the period for commencement of the action that Buchanan was the proper party in the suit. In this case, Buchanan received notice identical to Bembry's. Although West's complaint named Bembry as the driver, both Bembry and Buchanan knew that Buchanan was the driver. According to Buchanan, she accompanied Bembry to pick up the certified letter containing the complaint. Upon reading the complaint, both Bembry and Buchanan should have found it obvious that the complaint mistakenly named Bembry rather than Buchanan.\\nGiven these circumstances, to say that Bembry received timely and adequate notice but Buchanan did not would seem little more than senseless formalism. Thus, it was error for the superior court to dismiss West's action against Buchanan on statute of limitations grounds.\\nV. CONCLUSION\\nBecause we hold that West's amended complaint substituting Buchanan as defendant related back to the time of its initial filing, we REVERSE the superior court's dismissal of West's action against Buchanan and REMAND for proceedings consistent with this opinion.\\n. See Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979).\\n. Id.\\n. AS 22.20.022, by its terms, permits only \\\"a party or a party's attorney\\\" to peremptorily challenge a judge.\\n. West also refers us to Civil Rule 77(k), which deals with the time limits within which motions may be reconsidered. This reference is off-point. The motion for summary judgment considered by Judge Steinkruger did have an issue in common with the motion to amend considered by Judge Beistline. But Judge Steinkruger did not reconsider the motion to amend. Civil Rule 77(k) is inapplicable.\\n. 594 P.2d 30 (Alaska 1979).\\n. Id. at 36 (quoting Messinger v. Anderson, 225 U.S. 436, 444, 32 S.Ct. 739, 56 L.Ed. 1152 (1912)).\\n. Id.\\n. See id.\\n. Id. at 36.\\n. Id.\\n. Alaska R. Civ. P. 15(c) (emphasis added).\\n. See, e.g., Van Alen v. Anchorage Ski Club, Inc., 536 P.2d 784, 787 (Alaska 1975) (\\\"We have repeatedly stated that Alaska's discovery rules should be given a liberal interpretation in order to effectuate the underlying purpose of those rules.\\\").\\n. Lawrence A. Epter, An Un-Fortune-Ate Decision: The Aftermath of the Supreme Court's Eradication of the Relation \\u2014 Back Doctrine, 17 Fla. St. U.L.Rev. 713, 718 (1990) (discussing the federal counterpart to Alaska Civil Rule 15); see also Laurie Helzick, Note, Looking Forward: A Fairer Application of the Relation Back Provisions of Federal Rule of Civil Procedure 15(c), 63 N.Y.U. L.Rev. 131, 140 (1988) (\\\"Relation back was developed in order to liberalize the rules of pleading for the plaintiff without contravening the policies behind the statute of limitations.\\\") (discussing the federal counterpart to Alaska Civil Rule 15).\\n. See Pedersen v. Zielski, 822 P.2d 903, 907 (Alaska 1991).\\n. Alaska R. Civ. P. 15(c).\\n. 609 P.2d 15 (Alaska 1980).\\n. See id. at 17-18.\\n. See id. at 20-21.\\n. See id. At the time of Adkins, the federal rule was virtually identical to Alaska's Rule 15(c). Compare Alaska R. Civ. P. 15(c) with Fed. R.Civ.P. 15(c) (1991) (amended 1991).\\n. Id. at 21.\\n. See id. at 21.\\n. See Dissent at 1073.\\n. 825 P.2d 896 (Alaska 1992).\\n. Id. at 900 (emphasis added).\\n. See Alaska R. Civ. P. 4(j).\\n. 477 U.S. 21, 106 S.Ct. 2379, 91 L.Ed.2d 18 (1986).\\n. See id. at 30-31, 106 S.Ct. 2379.\\n. Id.\\n. Epter, supra note 13, at 735 (\\\"If the Court's characterization of this language were accurate, Schiavone would never have been decided by the Supreme Court: the conflicting and inconsistent interpretation of that language is precisely what led to the grant of certiorari.\\\").\\n. Schiavone, 477 U.S. at 37, 106 S.Ct. 2379 (Stevens, J., dissenting).\\n. See Dissent at 1074-75.\\n. See, e.g., Robert D. Brussack, Outrageous Fortune: The Case for Amending Rule 15(c) Again, 61 S. Cal. L.Rev. 671, 672-73 (1988); Epter, supra note 13, at 727-35; Helzick, supra note 13, at 148-49.\\n. Epter, supra note 13, at 731-33.\\n. Ritchie v. Grand Canyon Scenic Rides, 165 Ariz. 460, 799 P.2d 801, 805 (1990); see also Brown v. Winn-Dixie Montgomery, Inc., 669 So.2d 92, 95-97 (Miss.1996) (noting that Mississippi courts were \\\"not bound to blindly apply the observation or interpretation [of Rule 15] by the federal court\\\"); Hughes v. Water World Water Slide, Inc., 314 S.C. 211, 442 S.E.2d 584, 586 (1994) (declining to follow Schiavone even though South Carolina had not adopted the 1991 amendment to Fed.R.Civ.P. 15(c) setting the time allowed for changing the defendant in accord with federal law rather than state statutes of limitations).\\n. Ritchie, 799 P.2d at 808.\\n. Although the dissent complains that we are deciding this issue on a ground not argued by the parties, Buchanan challenged Judge Beistline's reliance on our suggestion in Siemion that a complaint may be amended to include a defendant who has \\\"had notice of the institution of the suit within the same time he would have known had he been a properly named defendant.\\\" Moreover, the applicability of the Schiavone rule to this case was argued at length by Buchanan in her brief to this court. And as the Schiavone dissent and the commentators who criticize the Schiavone majority opinion recognize, a properly named defendant may not receive notice of an action until service, which under both the Alaska and Federal Rules may take place as long as 120 days after filing. Thus, although the parties do not specifically refer to Civil Rule 4(j) in their briefs, its applicability to the issue before us is manifest.\\n. Schiavone, 411 U.S. at 38, 106 S.Ct. 2379 (Stevens, J., dissenting).\\n. Compare Fed.R.Civ.P. 15(c) with Fed.R.Civ.P. 15(c) (1991) (amended 1991).\"}"
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+"{\"id\": \"11560643\", \"name\": \"The CITY OF KODIAK, Appellant, v. Angela M. PARISH, and Columbia Cascade Company, Appellees\", \"name_abbreviation\": \"City of Kodiak v. Parish\", \"decision_date\": \"1999-09-03\", \"docket_number\": \"No. S-8312\", \"first_page\": \"201\", \"last_page\": \"204\", \"citations\": \"986 P.2d 201\", \"volume\": \"986\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T23:17:30.931603+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before MATTHEWS, Chief Justice, COMPTON, EASTAUGH, FABE, and BRYNER, Justices.\", \"parties\": \"The CITY OF KODIAK, Appellant, v. Angela M. PARISH, and Columbia Cascade Company, Appellees.\", \"head_matter\": \"The CITY OF KODIAK, Appellant, v. Angela M. PARISH, and Columbia Cascade Company, Appellees.\\nNo. S-8312.\\nSupreme Court of Alaska.\\nSept. 3, 1999.\\nMichael D. Corey, Sandberg, Wuestenfeld & Corey, Anchorage, for Appellant.\\nWilliam W. Whitaker, Winegarden & Whitaker, Kenai, for Appellee Angela M. Parish.\\nNeil T. O\\u2019Donnell, Atkinson, Conway & Gagnon, Anchorage, for Appellee Columbia Cascade Company.\\nBefore MATTHEWS, Chief Justice, COMPTON, EASTAUGH, FABE, and BRYNER, Justices.\", \"word_count\": \"2066\", \"char_count\": \"13016\", \"text\": \"OPINION\\nCOMPTON, Justice.\\nI. INTRODUCTION\\nFollowing a jury verdict which found in favor of the plaintiff and third-party defendant and against the defendant/third-party plaintiff, the third-party defendant moved for and was awarded costs and attorney's fees against the third-party plaintiff. The third-party plaintiff appeals the court's award. We affirm.\\nII. FACTS AND PROCEEDINGS\\nAnthony Belzer was injured by a splinter from playground equipment owned and maintained by the City of Kodiak (Kodiak). Angela Parish, on her own behalf and as Anthony's mother, sued Kodiak for negligence. Kodiak filed a third-party complaint seeking equitable apportionment of damages against Timberform, the manufacturer of the playground equipment. Timberform is a trade name used by Columbia Cascade Timber Company (Columbia Cascade). Kodiak's defense was that the playground equipment was either defectively designed or improperly manufactured by Columbia Cascade. Columbia Cascade answered and counterclaimed against Kodiak, asserting that Kodiak's negligence was the sole cause of Anthony's injury.\\nColumbia Cascade moved for partial summary judgment. It argued that while it could be found at fault, any monetary award against it would be time barred because Kodiak had filed its third-party complaint more than three years after the accident. Thus, it argued, were it found totally or partially responsible for Anthony's injury, Anthony and his mother might receive none or only a portion of their damages.\\nTo avoid the possibility of losing a portion of her son's recovery, Angela amended her complaint, dropping herself as an individual party and adding a direct claim against Columbia Cascade on behalf 'of Anthony. Because Anthony was a minor, his direct claim for monetary damages would not be time barred.\\nThough Angela filed a direct claim against Columbia Cascade, she agreed with Columbia Cascade at trial that no evidence of a defect existed. All of Angela's evidence supported the conclusion that Kodiak's improper maintenance of the playground equipment caused Anthony's injury. Likewise, Columbia Cascade's main defense was that Kodiak's inadequate maintenance was the sole cause of Anthony's injuries.\\nThe jury found that Kodiak was 100 percent liable for Anthony's injuries. Hence the jury did not apportion damages to either Angela or Columbia Cascade.\\nAngela and Columbia Cascade then sought and were awarded a portion of their costs and attorney's fees from Kodiak.\\nKodiak appeals the superior court's order that it pay a portion of Columbia Cascade's costs and attorney's fees. Kodiak asserts that the superior court misinterpreted Alaska Civil Rules 79(h) and 82(e), which address the allocation of costs and attorney's fees respectively between third-party plaintiffs and third-party defendants joined in an action under Alaska's equitable apportionment statute, AS 09.17.080. Kodiak does not appeal the award of costs and attorney's fees to Angela.\\nIII. STANDARD OF REVIEW\\nThe superior court's determination regarding whether Civil Rule 82(e) applied to resolve the liability of Kodiak and Columbia Cascade to each other with respect to costs and attorney's fees requires an interpretation of the rule. Therefore, this court will apply the independent judgment standard of review.\\nColumbia Cascade argues that two separate issues are presented and thus two standards of review apply. It agrees with Kodiak that interpretation of Civil Rule 82(e) is subject to this court's independent judgment. However, Columbia Cascade contends that the superior court's alternative basis for its decision, which was to realign the parties in accordance with their positions of \\\"actual adversity,\\\" is subject only to an abuse of discretion standard of review. Since we do not reach the alternative basis upon which the superior court relied, we need not address whether Columbia Cascade is correct regarding the standard of review to be applied to that determination.\\nIV. DISCUSSION\\nThe Alaska Rules of Civil Procedure provide for an award of costs and attorney's fees to the prevailing party. 'Rule 79(a) states: \\\"[T]he prevailing party is entitled to recover costs allowable under paragraph (f) [which delineates allowable costs] . \\\" Rule 82(a) uses nearly identical language: \\\"[T]he prevailing party in a civil case shall be awarded attorney's fees calculated under this rule.\\\"\\nWhen a defendant joins a third-party defendant under the equitable apportionment statute, as Kodiak did here, Rule 79(h) says:\\n\\\"[C]osts must be apportioned and awarded according to the provisions of Civil Rule 82(e).\\\" Civil Rule 82(e) states in part:\\nEquitable Apportionment Under AS 09.17.080.\\nIn a case in which damages are apportioned among the parties under AS 09.17.080, the fees awarded to the plaintiff under (b)(1) of this rule must also be apportioned among the parties according to their respective percentages of fault. If the plaintiff did not assert a direct claim against a third-party defendant brought into the action under Civil Rule 14(c), then\\n(1) the plaintiff is not entitled to recover the portion of the fee award apportioned to that party; and\\n(2) the court shall award attorney's fees between the third-party plaintiff and the third-party defendant as follows:\\n(A) if no fault was apportioned to the third-party defendant, the third-party defendant is entitled to recover attorney's fees calculated under (b)(2) of this rule.\\n(Emphasis added.)\\nThis case turns on whether the phrase \\\"plaintiff did not assert a direct claim\\\" implies a result when a plaintiff did assert a direct claim against a third-party defendant. The superior court concluded that it implied nothing: \\\"[S]ubsection (e) is inapplicable here because Parish did assert a direct claim against Columbia Cascade. The rules for awarding attorney's fees in subsection (e) apply only where the plaintiff did not assert such a claim.\\\" (Emphasis added.) The court declined to imply the phrase's obverse meaning, i.e., if the plaintiff did assert a direct claim against a third-party defendant, then the court shall not award attorney's fees between the third-party plaintiff and the third-party defendant.\\nConcluding that Civil Rule 82(e) was inapplicable, the superior court defaulted to the general Alaska rule of awarding costs and attorney's fees to the prevailing party. In determining who was the \\\"prevailing party\\\" under the rules, the court found that Angela's claim against Columbia Cascade was \\\"nominal and . not pursued by plaintiff at trial\\\" and \\\"amounted to no claim at all.\\\" It further found that Kodiak's claims against Columbia Cascade \\\"were very real and were contested fully at trial.\\\" The court concluded that \\\"[a]s between the City [Kodiak] and Columbia Cascade, Columbia Cascade clearly was the prevailing party.\\\" Accordingly, the court ordered that Kodiak pay thirty percent of Columbia Cascade's costs and attorney's fees pursuant to the \\\"usual provisions\\\" of Rule 82(b).\\nKodiak argues:\\n1. Civil Rule 82(e) is the only rule that can be applied to award attorney's fees between a third-party plaintiff and a third-party defendant. Attorney's fees can only be awarded between them when there is no direct claim against the third-party defendant by the original plaintiff. Here the original plaintiff, Angela, made such a claim; thus, no attorney's fees may be awarded between Kodiak and Columbia Cascade.\\n2. Columbia Cascade is not entitled to costs from Kodiak because \\\"Alaska R. Civ. P. 79[h] states that in cases where damages are apportioned among the parties under AS 09.17.080, costs must be apportioned and awarded according to the provisions of Civil Rule 82(e).\\\" Again, since Angela made a direct claim against Columbia Cascade, the rules do not allow for an award of costs.\\nColumbia Cascade responds that the trial court correctly held that Rule 82(e) is inapplicable, because it does not address the issue of who can be ordered to pay a prevailing third-party defendant's costs and attorney's fees when claims are made against the third-party defendant by both the third-party plaintiff and the plaintiff.\\nA. The Superior Court Correctly Held that Civil Rule 82(e) Is Inapplicable because Angela Brought a Direct Claim against Columbia Cascade.\\nThis case presents the question whether Rule 82(e) is applicable only in the \\\"certain circumstances\\\" where the plaintiff has not asserted a direct claim against a third-party defendant. To be sure, when no direct claim is' asserted against the third-party defendant by the original plaintiff, Rule 82(e) applies to an award of costs and attorney's fees. But Kodiak's argument is not based on the explicit text of the rule, but rather on its obverse implication.\\nWhile Kodiak's argument is not implausible, we observe that an opposite and simpler construction is permissible. The existence of Angela's direct claim against Columbia Cascade does not negate Kodiak's responsibility to pay Columbia Cascade's costs and attorney's fees, but merely renders Rule 82(e) inapplicable. Without the application of Rule 82(e), the analysis would default generally to Civil Rule 79 and Civil Rule 82, and the usual Alaska practice of awarding costs and attorney's fees to the prevailing party. This is what the superior court did.\\nThe superior court held that \\\"subsection (e) is inapplicable here because [Angela] did assert a direct claim against Columbia Cascade. The rules for awarding attorney's fees in subsection (e) apply only where the plaintiff did not assert such a claim.\\\" It rejected Kodiak's expansive reading of Rule 82(e), stating that it was based on \\\"[f|allacious reasoning! ] [that was] not stated in or contemplated by the rule.\\\" The court then observed: \\\"Such an application also would be contrary to the general Alaska rule awarding partial attorney's fees to a prevailing party.\\\" It concluded that \\\"[t]he usual provisions for awarding fees according to Civil Rule 82(b) apply.\\\" We agree.\\nB. Rules 79(h) and 82(e) Must Be Read so that the Same Results Are Reached for Both Costs and Attorney's Fees.\\nWith regard to costs, Kodiak argues that Rule 82(e) cannot be ignored because Rule 79(h) states:\\nEquitable Apportionment Under AS 09.17.080.\\nIn a case in which damages are apportioned among the parties under AS 09.17.080, costs must be apportioned and awarded according to the provisions of Civil Rule 82(e).\\n(Emphasis added.) According to Kodiak,\\nAlaska R. Civ. P. 79[h] states that in cases where damages are apportioned among the parties under A.S. 09.17.080, costs must be apportioned and awarded according to the provisions of Civil Rule 82(e). Consequently, the pre-requisite to Columbia Cascade recovering costs against Kodiak, namely that plaintiffs not assert a direct claim against Columbia Cascade is not met. Columbia Cascade's award of costs against Kodiak similarly constitutes reversible error.\\nIf Rule 82(e) does not apply to an award of attorney's fees as between a third-party plaintiff and third-party defendant, where a plaintiff does assert a direct claim against the third-party defendant, but it does apply to costs, it is clear that different results may be obtained because of different applications of the rules.\\nThe introductory phrases of Rule 79(h) and Rule 82(e) are identical: \\\"In a case in which damages are apportioned among the parties under AS 09.17.080 -\\\" Further, while the concluding phrases of each sentence are not identical, they convey the same intent: costs and attorney's fees must be apportioned when awarded. The language which ties Rule 79(h) into Rule 82(e), \\\"costs must be apportioned and awarded according to the provisions of Civil Rule 82(e),\\\" does not suggest that costs are to be treated differently than attorney's fees. Indeed, the fit between Rule 79(h) and Rule 82(e) is snug.\\nHaving concluded that Rule 82(e) does not apply with regard to attorney's fees, since Angela did assert a direct claim against Columbia Cascade, the same conclusion must follow with respect to Rule 79(h) and costs.\\nV. CONCLUSION\\nSince Angela did assert a direct claim against Columbia Cascade, Civil Rule 82(e) does not govern the liability of Kodiak and Columbia Cascade to each other with respect to costs and attorney's fees. Accordingly, the superior court did not err in declining to apply that provision. Thus, we AFFIRM the superior court's award of costs and attorney's fees against Kodiak.\\n. See AS 09.17.080.\\n. See AS 09.10.140.\\n. See Airoulofski v. State, 922 P.2d 889, 892 (Alaska 1996).\\n. See Alaska R. Civ. P. 79; Alaska R. Civ. P. 82.\"}"
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+"{\"id\": \"11841724\", \"name\": \"James JOHNSON, Edye Risener, and Al Risener, Appellants and Cross-Appellees, v. OLYMPIC LIQUIDATING TRUST, Appellee and Cross-Appellant\", \"name_abbreviation\": \"Johnson v. Olympic Liquidating Trust\", \"decision_date\": \"1998-01-30\", \"docket_number\": \"Nos. S-7378, S-7408\", \"first_page\": \"494\", \"last_page\": \"500\", \"citations\": \"953 P.2d 494\", \"volume\": \"953\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T17:35:47.444145+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before COMPTON, C.J., and MATTHEWS, EASTAUGH, FABE and BRYNER, JJ.\", \"parties\": \"James JOHNSON, Edye Risener, and Al Risener, Appellants and Cross-Appellees, v. OLYMPIC LIQUIDATING TRUST, Appellee and Cross-Appellant.\", \"head_matter\": \"James JOHNSON, Edye Risener, and Al Risener, Appellants and Cross-Appellees, v. OLYMPIC LIQUIDATING TRUST, Appellee and Cross-Appellant.\\nNos. S-7378, S-7408.\\nSupreme Court of Alaska.\\nJan. 30, 1998.\\nVictor C. Krumm, Law Office of Victor C. Krumm, P.A., Sarasota, PL, for Appellants/Cross-Appellees.\\nCabot Christianson, Gary A. Spraker, Bun-dy & Christianson, Anchorage, for Appel-lee/Cross-Appellant.\\nBefore COMPTON, C.J., and MATTHEWS, EASTAUGH, FABE and BRYNER, JJ.\", \"word_count\": \"3576\", \"char_count\": \"21233\", \"text\": \"OPINION\\nMATTHEWS, Justice.\\nI. INTRODUCTION\\nJames Johnson, Edye Risener and Al Ri-sener appeal the superior court's grant of summary judgment holding them liable on a non-negotiable promissory note. They contend that the note was procured by fraud and is avoidable. Assuming that part of the note is touched by fraud, we conclude that they may not avoid the portion of the note representing valid debt. We affirm the superior court as to the grant of summary judgment. We reverse the superior court's award of attorney's fees to the Olympic Liquidating Trust, and remand for further proceedings.\\nII. FACTS AND PROCEEDINGS\\nThe Olympic Liquidating Trust (Trust) was created by the United States Bankruptcy Court in the wake of the bankruptcy of Anchorage businessman Peter Zamarello and two of his corporations. Pursuant to the order creating the Trust, property of one of the bankrupt corporations, Olympic, Inc., was placed in the Trust for purposes of liquidation. The proceeds were to be distributed to the Trust's beneficiaries, Olympic, Inc.'s creditors. Among the property placed in the Trust was a lawsuit denominated Olympic, Inc. v. James Johnson; Edye Risener and Al Risener, 3AN-94-639 Civil. Under the terms of the debtor's reorganization plan, the Trust was entitled to receive the lesser of $200,000 or 50% of the proceeds of the lawsuit.\\nThe underlying lawsuit arose out of business dealings between Peter Zamarello on the one hand and James Johnson and Edye Risener and Al Risener on the other. Johnson and the Riseners were the principals' of a corporation called \\\"40, Inc.\\\" The main business of 40, Inc. was the operation of two Anchorage bowling alleys, East 40 Bowl and South 40 Bowl. 40, Inc. leased these bowling alleys from Olympic, Inc. Zamarello was, at least at one time, a principal of Olympic, Inc.\\nOn October 21, 1985, Johnson and the Ri-seners signed a promissory note in the amount of $500,000 in favor of Olympic, Inc. (the 1985 note). This $500,000 represented amounts owed by Johnson and the Riseners for bowling equipment, improvements to the leased premises, and a liquor license. They defaulted on the note and fell behind on the payments due under the bowling alley leases.\\nTo remedy this problem, a second promissory note was negotiated at a meeting where Zamarello, Johnson and the Riseners were present. This second note, in the amount of $1,049,000, was signed on August 20,1986, in favor of Eastgate, Inc., another corporation with which Zamarello was involved (the 1986 note). The amount of the note was made up of an accumulation of smaller debts. These debts included the $500,000 still owing on the 1985 note; $253,655 in back rent; and $289,-000 in construction costs that Zamarello claimed to have paid on behalf of Johnson and the Riseners to a company called Strand, Inc. Johnson and the Riseners contend that they, at all times during the meeting, disputed the actual amount of their indebtedness to Zamarello or his corporations and that they signed the second note only after a lengthy argument with Zamarello. Pursuant to the signing of the 1986 note, the 1985 note was marked \\\"cancelled 8/20/86\\\" and \\\"replaced 8-20-86.\\\"\\nMeanwhile, in preparation for the impending bankruptcy, Zamarello had been transferring all of Olympic, Inc.'s assets to East-gate, Inc. On August 21, 1986, the day after the 1986 note was signed, Olympic, Inc. filed for Chapter 11 bankruptcy protection. The bankruptcy court ordered Eastgate, Inc. to return all of the Olympic, Inc. assets that had been transferred to it. This order included \\\"[a]ll net rents, profits and proceeds received by Eastgate, Inc_\\\"\\nJohnson and the Riseners never made a payment on the 1986 note. On January 4, 1988, Olympic, Inc. filed suit against Johnson and the Riseners for the $1,049,000 owed on the 1986 note. This lawsuit became, in part, the property of the Olympic Liquidating Trust. Johnson and the Riseners were later able to settle with Olympic, Inc. for $10,000. The Trust learned of the impending settlement and began to seek a method of intervening in the litigation. Ultimately, Johnson and the Riseners stipulated that the Trust would be allowed to bring suit on its own to enforce its interest in the note, provided that they be allowed to raise any defenses they had against Olympic, Inc. against the Trust.\\nThe Trust brought that suit on January 19, 1994. The complaint alleged only that Johnson and the Riseners were liable to the Trust on the 1986 note. On February 8, 1995, the Trust moved for summary judgment on the ground that there were no material facts in dispute and Johnson and the Riseners were liable to the Trust to the $200,000 limit as a matter of law.\\nJohnson and the Riseners, in their answer and opposition to the Trust's motion, defended on the grounds that there were material facts in dispute as to whether the 1986 note was voidable due to fraud and whether there was consideration for the note. They also argued that there were issues of fact as to one, or more, defective assignments, of the note, and that Zamarello lacked the authority to bind Eastgate or Olympic, Inc. at the time the note was made.\\nThe superior court found, as a matter of law, that Johnson and the Riseners were liable to the Trust at least to the extent of its maximum allowable recovery. The court reasoned that, even if the fraud issue could be proven and the 1986 note avoided, Johnson and the Riseners would then be liable in the amount of $500,000 on the 1985 note. Accordingly, the superior court granted summary judgment on the $500,000 1985 note. The Trust was awarded its $200,000 maximum recovery, $16,500 in attorney's fees, $106,284.60 in prejudgment interest, and $1,450.33 in costs.\\nJohnson and the Riseners appeal, contending that the superior court erred in entering summary judgment in favor of the Trust. They also appeal the award of prejudgment interest. The Trust cross-appeals the amount of the attorney's fees award.\\nIII. STANDARD OF REVIEW\\nA superior court's grant of summary judgment must be affirmed if the evidence in the record fails to disclose a genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Public Safety Employees Ass'n, Local 92 v. State, 895 P.2d 980, 984 (Alaska 1995). This inquiry is conducted without deference to the ruling of the superior court. Martech Constr. Co. v. Ogden Envtl. Serv., Inc., 852 P.2d 1146, 1149 (Alaska 1993). All reasonable factual inferences must be drawn in favor of the party opposing summary judgment. Id.\\nThe time when prejudgment interest begins to accrue is a question of law which we review using our independent judgment. Tookalook Sales and Serv. v. McGahan, 846 P.2d 127, 129 (Alaska 1993). Interpretation of an attorney's fees clause in a contract is also a question of law. We use our independent judgment in making such an interpretation. A & G Constr. Co. v. Reid Bros. Logging Co., 547 P.2d 1207, 1212-13 (Alaska 1976).\\nIV. DISCUSSION\\nA. Did the Superior Court Err in Granting Summary Judgment in Favor of the Trust?\\n1. Fraud in the inducement regarding the 1986 note\\nJohnson and the Riseners first argue that it was improper for the superior court to grant summary judgment on the 1985 note, when that note was not specifically put at issue by the parties' pleadings or the Trust's motion for summary judgment. They have framed this argument as one claiming a denial of due process of law under the Alaska Constitution. It is true that the 1985 note was not specifically raised in the pleadings or in the Trust's motion for summary judgment. However, we find the superior court's grant of summary judgment proper as an application of the doctrines relating to the avoidability of contracts. Namely, when a clearly delineated and severable part of a contract is avoidable due to fraud, it is only that part which may be avoided.\\nJohnson and the Riseners rightly contend that a contract induced by fraud is avoidable at the election of the defrauded party. They base their claim of fraud on their allegations that Zamarello demanded that they sign the 1986 note and\\n[w]hen they protested and said that they did not owe anybody that amount of money, Zamarello presented them with a list of alleged debts that were owed. The first item on that list was for $289,000, which Zamarello claimed had been paid to Strand, Inc. for tenant improvements made to one of the 40, Inc. bowling al-\\nleys_ The repres\\u00e9ntation was completely false.\\nNonetheless, Johnson and the Riseners signed the 1986 note. Apparently, they were later sued by Strand, Inc. for $289,000.\\nThe Restatement (Second) of Contracts \\u00a7 164(1) (1981) reads:\\nIf a party's manifestation of assent is induced by either a fraudulent or a material misrepresentation by the other party upon which the recipient is justified in relying, the contract is voidable by the recipient.\\nAssuming that the parties' conduct falls within this section, this does not give rise to a disputed issue of material fact. As the Trust points out, \\\"[o]nly disputed issues of material fact preclude entry of summary judgment.Alaska R. Civ. P. 56. A fact is material only if it may effect [sic], the outcome of the case. See Beck v. Haines Terminal & Highway Co., 843 P.2d 1229, 1231 (Alaska 1992).'' (Emphasis in original.)\\nWhen a contract comprises several distinct parts or performances, a right of avoidance as to one' part or performance does not give rise to \\u00e1 right of avoidance as to the entire contract. Conley v. Texas Co., 289 S.W. 169, 172 (Tex.Civ.App.1926) (\\\"[W]here a contract is composed of several distinct and divisible parts, one of the parties cannot rescind as to such severable part . in respect to which no breach has occurred.\\\"); see also-B.F. Sturtevant Co. v. Le Mars Gas Co., 188 Iowa 584,176 N.W. 338, 341 (1920) (holding a contract to be divisible although contained in one instrument); Wooten v. Walters, 110 N.C. 251, 14 S.E. 734, 736 (1892) (\\\"Wh\\u00e9n . the plaintiff avoided the contract . as to the land'... he did not avoid the contract as to the stock of goods. The contract was severable, and, as to the goods, was valid and remained of force and continued to have effect.\\\"). A contract is severable for purposes of the above rule when it is of such a nature that it is clear that the formation of the contract itself was not dependent on all of its parts together, but rather that it could just as well have been entered into as several different agreements. See Conley, 289 S.W. at 172; Butler v. Prentiss, 158 N.Y. 49, 52 N.E. 652, 656 (1899) (holding contract entire when plaintiff would not have assented to one part unless he assented to all).\\nHere, Johnson and the Riseners contend only that $289,000 of the amount owed under the note was touched by fraud. It is clear that a $500,000 portion of the 1986 note, representing the amount owed on the 1985 note, and a $253,655 portion, representing back rent, were valid debts. Therefore, Johnson and the Riseners have no right to avoid the note at least to the extent of these sums. There is no issue of material fact as to their liability in this amount. The- Trust is, therefore, entitled to judgment as a matter of law.\\nJohnson and the Riseners further argue that disputed' material facts exist as to their' entitlement to certain set-offs which would reduce their liability to below the $200,000 mark. Specifically, they allege a $170,000 set-off for \\\"assorted indebtedness owed by Olympic\\\" and a $10,000 set-off for the amount paid to Olympic, Inc. in the original settlement of the lawsuit. This, again, fails to raise an issue of fact that would preclude summary judgment. Even were the set-offs allowed against the valid debts, the net amount owed by Johnson and the Riseners would still total more than double the $200,000 limit. In their brief, Johnson and the Riseners claim that \\\"[these sums are] not intended to be exhaustive of the set-off claims. A party opposing summary judgment need not produce all of the evidence it may have at its disposal but need show only that issues of fact are in existence.\\\" Be this as it may, a party must bring forth enough evidence to show that a disputed fact is material to the outcome of the lawsuit. Johnson- and the Riseners have failed to do this.\\nJohnson and the Riseners have failed to show that any issue of fact exists as to whether they are hable for at least twice the $200,000 -limit. Given that the Trust is limited to a recovery of the lesser of $200,000 or 50% of litigation proceeds, any dispute as to the precise amount of liability above $400,000 is not material to the Trust's recovery and thus cannot bar summary judgment.\\n2. Lack of one or more valid assignments\\nJohnson and the Riseners next argue that there existed a material issue of fact as to whether Olympic, Inc., and the Trust standing in its shoes, had the ability to enforce the 1986 note, as there was no evidence of a valid assignment of the note from East-gate, Inc., in the favor of which the note was made, to Olympic, Inc. This argument fails as well.\\nAs persuasively put by the Trust, this contention \\\"does not properly account for the Order Avoiding Transfers of Property dated January 21, 1987, entered in the Olympic bankruptcy proceedings.\\\" That order \\\"unwound\\\" all of Zamarello's transfers of Olympic, Inc.'s property to Eastgate, Inc. The court ordered that \\\"[a]ll net rents, profits and proceeds received by Eastgate, Inc., . shall be immediately turned over to [Olympic, Inc.].\\\" This encompasses the transfer represented by the 1986 note and effected a valid transfer of that note from Eastgate, Inc. to Olympic, Inc.\\nFinally, Johnson and the Riseners attempt to raise an issue of material fact regarding Zamarello's authority to enter into an agreement on behalf of Eastgate, Inc. or Olympic, Inc. with regard to the 1986 note. This argument is also rejected. Whatever Zamarello's status on the relevant dates as an agent of either or both Olympic, Inc. and Eastgate, Inc., a principal may affirm the un\\u00e1uthorized conduct of another through conduct \\\"manifesting that he consents to be a party to the transaction, or by conduct justifiable only if there is a ratification.\\\" Re statement (Second) of Agency \\u00a7 93(1) (1958). Bringing suit on an obligation which was entered into by a person without authority is one example of conduct evincing ratification. Id. at \\u00a7 97; cf. Sea Lion Corp. v. Air Logistics of Alaska, Inc., 787 P.2d 109, 116-19 (Alaska 1990) (ratification by implied acquiescence). When Olympic, Inc. brought suit on the 1986 note, the question as to whether Zamarello had authority to bind it to that obligation was closed. Thus, the Trust was entitled to judgment as a matter of law on this issue.\\nThe superior court's grant of summary judgment awarding the Trust $200,000 is affirmed.\\nB. Did the Trial Court Err in Granting-the Trust Prejudgment Interest?\\nThe superior court awarded the Trust $106,284.60 in prejudgment interest. It arrived at this amount by applying the 9% interest rate of the 1986 note to the $200,000 award from the date the Trust was created, December 1,1989, to the date judgment was entered, October 26,1996. Johnson and the Riseners contend both that the Trust is not entitled to prejudgment interest and that, if it is entitled to prejudgment interest, the superior court miscalculated the amount owed.\\nWe reject the argument as to the Trust's right to receive prejudgment interest on its award. Johnson and the Riseners point to Article VI, paragraph 6.9, of the reorganization plan of Olympic, Inc. as a limit on the Trust's right to collect interest on the judgment. That provision reads:\\nDistribution Upon Allowance. At such time as a Disputed Claim or Disputed Interest becomes an Allowed Claim or an Allowed Interest, the distributions reserved for such Allowed Claim or Allowed Interest (without any interest thereon) shall be withdrawn from the Contested Fund and distributed to the [Trust] as [its] interests may appear, and thereafter to the holder of such Allowed Claim or Allowed Interest.\\nWe first note tha| Johnson and the Riseners failed to raise this provision of the reorganization plan in the court below. We need not address the issue on appeal. Gates v. City of Tenakee Springs, 822 P.2d 455, 460 (Alaska 1991). Even were we to review the issue, it is clear that it is meritless. The quoted provision is aimed at the satisfaction of creditors' claims against the bankruptcy estate. It has no bearing on the Trust's ability to recover, here.\\nJohnson and the Riseners next argue that prejudgment interest should only have been awarded from the date the Trust filed its lawsuit, rather than from the date the Trust came into being. Alaska Statute 09.30.070(b) provides:\\nExcept when the court finds that the parties have agreed otherwise, prejudgment interest accrues from the day process is served on the defendant or the day the defendant received written notification that an injury has occurred and that a claim may be brought against the defendant for that injury, whichever is earlier. The written notification must be of a nature that would lead a prudent person to believe that a claim will be made against the person receiving the notification, for personal injury, death, or damage to property.\\nJohnson and the Riseners contend that prejudgment interest should only accrue from the date that they were served with process in this case \\u2014 a date after the Trust was created. This argument fails. Johnson and the Riseners had already been served with process in the underlying suit brought by Olympic, Inc., and were well into litigation, when the Trust came into existence. The service of process in the Olympic, Inc. case served to give the notice required by AS 09.30.070(b). We affirm the superior court s award of prejudgment interest.\\nC. Did the Trial Court Err in Awarding Attorney's Fees at the Civil Rule 82 Rate?\\nThe Trust cross-appeals on the ground that the superior court erred in awarding it attorney's fees at the Civil Rule 82 rate. The trial court awarded the Trust $16,500 in attorney's fees. The Trust's actual fees were approximately $31,789.50. The Trust contends that it is entitled to reasonable actual attorney's fees under the provisions of the 1986 note. The 1986 note reads:\\nIn case this note is placed in the hands of an attorney for collection or in the event suit is instituted to collect this note or any portion thereof, the undersigned promises to pay, in addition to the costs and disbursements provided by statute, such additional sums as the court may adjudge reasonable for attorney fees to be allowed in said suit or action.\\nUnder Alaska law, an attorney's fees provision in a contract controls an award of attorney's fees. Jackson v. Barbero, 776 P.2d 786, 788 (Alaska 1989) (noting that the plain meaning of a contract provision prevails over any limitation otherwise imposed by Civil Rule 82). It appears that the trial judge applied the Civil Rule 82 formula to the award at issue here. We remand this issue and direct the superior court to determine a reasonable award of attorney's fees under the contract provision.\\nV. CONCLUSION\\nWe AFFIRM the superior court's grant of summary judgment in favor of the Trust to the extent of its $200,000 limitation on recovery. We also AFFIRM the award of prejudgment interest. We REVERSE the award of attorney's fees to the Trust and REMAND for proceedings consistent with the above discussion.\\n. Edye Risener estimated that the group's true indebtedness to Zamarello's corporations was approximately $600,000. Assuming off-sets of $180,000, the resulting judgment based on their admission would still exceed $400,000.\\n. Johnson and the Riseners also claim a set-off in the amount of $289,000 for the \\\"Strand debt.\\\" As discussed above, if this court assumes that part of the 1986 note was procured by fraud and is avoidable, the Strand debt is avoided with it. Johnson and the Riseners cannot both have the portion of the note representing the debt avoided and also claim a set-off for the amount of that debt.\\n. It charged Johnson and the Riseners $49.32 per day in interest for 2,155 days.\\n. Both parties assume that AS 09.30.070 is the controlling statute. We note that this question is an open one. It may be that AS 09.30.070(b) only applies to cases involving \\\"personal injury, death, or damage to property.\\\" See Hofmann v. von Wirth, 907 P.2d 454, 455 n. 2 (Alaska 1995); Tookalook Sales and Serv. v. McGdhan, 846 P.2d 127, 129 (Alaska 1993). We need not dispose of the issue to resolve the case before us.\\n. The trial court did not explicitly refer to Civil Rule 82 in making its $16,500 award of attorney's fees. However, this is the amount that is arrived at if the Rule 82 formula is applied.\"}"
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+"{\"id\": \"11866988\", \"name\": \"Joleen R. RYNEARSON, Appellant, v. STATE of Alaska, Appellee\", \"name_abbreviation\": \"Rynearson v. State\", \"decision_date\": \"1997-12-19\", \"docket_number\": \"No. A-6108\", \"first_page\": \"147\", \"last_page\": \"152\", \"citations\": \"950 P.2d 147\", \"volume\": \"950\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Court of Appeals\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T17:45:37.779961+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before COATS, C.J., MANNHEIMER, J., and RABINOWITZ, Senior Supreme Court Justice.\", \"parties\": \"Joleen R. RYNEARSON, Appellant, v. STATE of Alaska, Appellee.\", \"head_matter\": \"Joleen R. RYNEARSON, Appellant, v. STATE of Alaska, Appellee.\\nNo. A-6108.\\nCourt of Appeals of Alaska.\\nDec. 19, 1997.\\nG. Blair MeCune, Assistant Public Defender, and Barbara K. Brink, Public Defender, Anchorage, for Appellant.\\nWilliam H. Hawley, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee.\\nBefore COATS, C.J., MANNHEIMER, J., and RABINOWITZ, Senior Supreme Court Justice.\\nSitting by assignment made pursuant to Article IV, Section 11 of the Alaska Constitution and Administrative Rule 23(a).\", \"word_count\": \"2322\", \"char_count\": \"15067\", \"text\": \"MANNHEIMER, Judge.\\nJoleen R. Rynearson pleaded no contest to two counts of fourth-degree misconduct involving a controlled substance (possession of Valium and Darvon), AS 11.71.040(a)(3)(B). When Rynearson entered her pleas, she reserved the right to challenge the legality of the police seizure of her bags (which led to the search in which the police found the drugs). See Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska 1974).\\nIn our previous decision in this ease, we held that the seizure of Rynearson's bags exceeded the bounds of temporary investigative detention, and that therefore the seizure was justified only if the officers had probable cause to believe that Rynearson's bags contained illicit drugs. Rynearson v. State, Memorandum Opinion No. 3068 (Alaska App., January 11,1995), at 8-9. Because the superior court had not addressed the question of whether there was probable cause for the seizure of the bags, we remanded Ryn-earson's case to the superior court for further findings on this issue. Id.\\nOn remand, the superior court found that the police did have probable cause to seize Rynearson's bags, based on a tip they had received from an anonymous informant. The question now on appeal is whether the superior court's ruling is correct. We agree that the police had probable cause to seize Ryn-earson's bags, and we therefore affirm her convictions.\\nThe State Troopers contacted Rynearson at the Anchorage International Airport based on information they had received from an anonymous informant. According to this informant, Rynearson would be arriving in Anchorage around midnight on an Alaska Airlines flight from Mexico. The informant supplied the flight number. The informant also provided a physical description of Ryn-earson and of her luggage. Finally, the informant told the authorities that Rynearson would be carrying drugs \\u2014 specifically, Valium, Quaaludes, and morphine \\u2014 and that Rynearson would be carrying these drugs on her person, in her luggage, and concealed in plastic toys.\\nThe troopers followed up on this tip by contacting Alaska Airlines. Airline officials confirmed that a person named Joleen Ryn-earson would be arriving in Anchorage around midnight on an Alaska Airlines flight from San Francisco, and that this flight had originated in Puerto Vallarta, Mexico. When Rynearson got off the plane, the troopers saw that both she and her carry-on bags matched the informant's description. When Rynearson retrieved her checked luggage, the troopers saw that those bags also matched the informant's description. When the troopers approached Rynearson and questioned her, Rynearson confirmed that she had just arrived from Mexico, and she admitted that she was in possession of prescription Valium.\\nTo decide whether this information constituted probable cause to seize Rynear-son's luggage, we apply the test crafted in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). See State v. Jones, 706 P.2d 317, 324-25 (Alaska 1985) (holding that, under Alaska law, the Aguilar-Spinelli test continues to govern the evaluation of hearsay information offered to support a search or seizure). The Aguilar-Spinelli test requires the State to prove two things: first, that the hearsay informant obtained the information in a reliable way; second, that the hearsay informant is trustworthy. Schmid v. State, 615 P.2d 565, 574-75 (Alaska 1980).\\nThe assessment of probable cause presents a mixed question of fact and law. With regard to the facts, we must accept the facts found by the trial court unless those findings are shown to be clearly erroneous. However, once the facts are determined, the question of whether those facts constitute probable cause is a question of law which a reviewing court determines independently. LeMense v. State, 754 P.2d 268, 272-73 (Alaska App.1988).\\nIn the present case, the informant did not explain how she obtained her information regarding Rynearson. In fact, the troopers specifically asked the informant how she had obtained her information, and the informant refused to say. However, under Spinelli, the detail of a hearsay tip can support the inference that the information was obtained firsthand:\\nIn the absence of a statement detailing the manner in which the information was gathered, it is especially important that the tip describe the accused's criminal activity in sufficient detail that the magistrate may know that he is relying on something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual's general reputation.\\nSchmid, 615 P.2d at 574 (quoting Spinelli, 393 U.S. at 416, 89 S.Ct. at 589, 21 L.Ed.2d at 644).\\nFor example, in Draper v. United States, 358 U.S. 307, 309, 79 S.Ct. 329, 331, 3 L.Ed.2d 327, 329-330 (1959), the informant described the defendant and his clothing, described the defendant's gait, stated that the defendant would be carrying a zippered bag, and predicted that the defendant would arrive at the Denver railroad station on either of two dates. The Supreme Court held that this amount of detail established the inference that the informant was speaking from personal knowledge rather than reporting a rumor or making an accusation based merely on Draper's general reputation.\\nSimilarly, we find that the anonymous tip in Rynearson's case was sufficiently detailed to support the inference that the informant was speaking from personal knowledge. The anonymous informant accurately described Rynearson and her luggage, knew that Ryn-earson was returning to Alaska from Mexico, and predicted that Rynearson would arrive in Anchorage around midnight on a specific day and on a specific Alaska Airlines flight. This amount of detail matches the amount that was declared adequate in Draper and Schmid.\\nThe remaining question is whether the State proved that the anonymous informant was a trustworthy person. There are basically three ways in , which an informant can be shown to be trustworthy: by evidence that the same informant has proved reliable in the past, by evidence that independently corroborates the informant's present tip, or by evidence that the informant is among the class of people presumptively deemed credible, such as the \\\"citizen informants\\\" recognized in Erickson v. State, 507 P.2d 508, 517-18 (Alaska 1973). See Carter v. State, 910 P.2d 619, 623 (Alaska App.1996).\\nIn Rynearson's case, the superior court concluded that the anonymous informant was a \\\"citizen informant\\\". From the informant's desire to remain anonymous, the court inferred that the informant had not been motivated by hope of official concession or reward. This was a reasonable inference. However, as we recently- explained in Lloyd v. State, 914 P.2d 1282 (Alaska App.1996), an informant's anonymity does not, by itself, qualify the informant as a \\\"citizen informant\\\" for Aguilar-Spinelli purposes.\\nLloyd involved a search warrant application that was based, in substantial part, on information given by a caller to a Crime Stoppers hot line. The State argued that the caller could be deemed a \\\"citizen informant\\\". In support of its argument, the State cited two prior decisions in which this court extended a presumption of credibility to anonymous informants. See Effenbeck v. State, 700 P.2d 811 (Alaska App.1985), and Beuter v. State, 796 P.2d 1378 (Alaska App.1990). We explained, however, that the State had read too much into Effenbeck and Beuter:\\n[N]either Effenbeck nor Beuter stand for the proposition that . informants of unknown or undetermined status can automatically gain citizen informant status by [anonymously] calling a Crime Stoppers number; to adopt such a rule would simply encourage police to channel calls from their regular informants through a Crime Stoppers line. To the extent that [they] are relevant[, Effenbeck and Beuter] support the conclusion . that [an] infor-mantes] status must be determined by a realistic, case-by-case assessment of the informant's probable motives, as they appear from the information properly before the court.\\nLloyd, 914 P.2d at 1287. We also emphasized that it is the government's burden to demonstrate the informant's status as a citizen informant:\\n[A] finding of citizen informant status requires at least some circumstantial showing of intrinsically trustworthy motivation. Credibility \\u215b not presumed by default: when the information available . does not actually identify the informant as an apparently well-meaning citizen, and when it otherwise sheds insufficient light on [the informant's] identity and motive to dispel the underlying concerns of Aguilar-Spi-nelli, the informant's status as a citizen informant cannot simply be assumed.\\nId. at 1287.\\nIn Rynearson's case, although the troopers did not affirmatively state whether the informant sought or received a reward for her information, the superior court could justifiably conclude that the anonymous informant was unlikely to be motivated by prospects of official concessions or monetary gain. However, little else was known (or, at least, little else was presented) concerning the informant. The troopers testified that the informant (a) was female, (b) wished to remain anonymous, and (c) refused to reveal how she had obtained the information about Rynearson. As in Lloyd, the State did not explain \\\"the nature or circumstances of the call\\\", did not tell the superior court \\\"[whether] the call was recorded\\\", and did not provide the court with \\\"any assurance that the report could not have been fabricated.\\\" Lloyd, 914 P.2d at 1288.\\nThese factors lead us to conclude that the informant in Rynearson's case should not be deemed a citizen informant. Even though an anonymous informant will generally not expect reward or favorable treatment from the authorities, we reiterate what we said in Lloyd: an informant's anonymity does not, standing alone, qualify the informant as a citizen informant. In Rynearson's case, the State presented essentially nothing, other than the informant's desire to remain anonymous, to \\\"identify the informant as an apparently well-meaning citizen\\\" or to otherwise \\\"dispel the underlying concerns of Aguilar-Spinelli\\\". Lloyd, 914 P.2d at 1287. Thus, to justify the seizure of Rynearson's luggage, the record must demonstrate sufficient corroboration of the informant's tip to satisfy the second prong of the Aguilar-Spinelli test for a police informant.\\nIn Rynearson's case, the police had no evidence that the anonymous informant had proved reliable in the past (or even had contacted them in the past). However, the second prong of the Aguilar-Spinelli test can be satisfied by independent corroboration of an otherwise untested informant's tip. State v. Jones, 706 P.2d at 325; Atkinson v. State, 869 P.2d 486, 490 (Alaska App.1994). In the present case, police investigation independently confirmed certain aspects of the informant's tip. Rynearson arrived as predicted on the specified Alaska Airlines flight, and her journey began in Mexico, as the informant had said. The informant accurately described Rynearson's person as well as Rynearson's luggage. Finally, Rynearson told the troopers that she was carrying Valium, one of the three drugs mentioned by the informant \\u2014 although Rynearson explained that she had obtained the Valium under prescription.\\nRynearson discounts this independent corroboration of the informant's tip; she argues that this corroboration consists only of \\\"public facts [and] wholly innocuous details\\\", insufficient to meet the Aguilar-Spinelli requirement. Lloyd, 914 P.2d at 1288 (quoting Carter v. State, 910 P.2d 619, 624 (Alaska App.1996)). We do not agree. The corroborated details included matters that typically would not be known to the general public\\u2014 Rynearson's flight number, arrival time, and point of origin, as well as the description of her luggage and the assertion that she was carrying Valium. Moreover, in the context of the informant's tip, Rynearson's admission that she was carrying Valium was not a \\\"wholly innocuous\\\" detail; instead, this information was partial corroboration of the informant's primary incriminating assertion- \\u2014 -that Rynearson was bringing Valium, Quaaludes, and morphine to Alaska.\\nThe police need not obtain independent corroboration of the incriminatory details of the informant's tip; such a rule was specifically rejected in Schmid, 615 P.2d at 577. What the law requires is independent corroboration that \\\"relate[s] to the tip in a way that lends substantial credibility to the report of illegality\\\". Lloyd, 914 P.2d at 1286. The police corroboration of the informant's tip in Rynearson's case meets this test.\\nBased on the foregoing, we conclude that both prongs of the Aguilar-Spinelli test were satisfied in this case, and the police therefore had probable cause to seize Ryn-earson's luggage. Accordingly, the judgement of the superior court is AFFIRMED.\\n. The troopers received two tips concerning Ryn-earson. One tip was received in a telephone call from a woman who refused to identify herself. A second tip was received from a federal agent working for the Drug Enforcement Agency. However, the federal agent was simply passing on information that he had received from an anonymous female caller. Thus, all of the troopers' information regarding Rynearson was ultimately based on these two anonymous tips.\\nThe record does not reveal whether the same woman contacted both the troopers and the DEA, or whether a different informant contacted each agency. The superior court made no finding on this issue. However, because the presence of two cross-corroborating informants would bolster the State's case, see Stam v. State, 925 P.2d 668, 671-72 (Alaska App.1996), and because it was the State's burden to establish probable cause, we will assume that there was only one informant.\\n. Conversely, Lloyd, Effenbeck, and Beuter together stand for the proposition that anonymity does not necessarily defeat citizen informant status. As demonstrated by the decisions in Effen-beck and Beuter, if the government has instituted a program that encourages citizens to come forward with information anonymously, and if that program is set up in a manner that \\\"dispelfs] the underlying concerns of Aguilar-Spinelli\\\", then the fact that a person has volunteered information anonymously will not prevent the court from concluding that this person is a citizen informant.\"}"
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+"{\"id\": \"11941777\", \"name\": \"Michael J. ANDERSON, Appellant, v. STATE of Alaska, Appellee\", \"name_abbreviation\": \"Anderson v. State\", \"decision_date\": \"1976-10-08\", \"docket_number\": \"No. 2406\", \"first_page\": \"251\", \"last_page\": \"262\", \"citations\": \"555 P.2d 251\", \"volume\": \"555\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T23:49:56.508464+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before BOOCHEVER, Chief Justice, and RABINO WITZ, CONNOR, ERWIN and BURKE, Justices.\", \"parties\": \"Michael J. ANDERSON, Appellant, v. STATE of Alaska, Appellee.\", \"head_matter\": \"Michael J. ANDERSON, Appellant, v. STATE of Alaska, Appellee.\\nNo. 2406.\\nSupreme Court of Alaska.\\nOct. 8, 1976.\\nFrank S. Koziol, Jr., Asst. Public Defender, Brian Shortell, Public Defender, Anchorage, for appellant.\\nStephen G. Dunning and Ivan Lawner, Asst. Dist. Attys., Joseph D. Balfe, Dist. Atty., Anchorage, Avrum M. Gross, Atty. Gen., Juneau, for appellee.\\nBefore BOOCHEVER, Chief Justice, and RABINO WITZ, CONNOR, ERWIN and BURKE, Justices.\", \"word_count\": \"5829\", \"char_count\": \"35456\", \"text\": \"OPINION\\nBURKE, Justice.\\nDuring the month of April, 1974, Michael J. Anderson became a subject of interest to two local law enforcement agencies. The Juvenile Bureau of the Anchorage City Police Department had become aware of Anderson's sexual attraction for young boys and, at the same time, the Metropolitan Drug Unit (Metro) had acquired information concerning his use of illegal drugs. On April 18, 1974, seven law enforcement officers, from both agencies, visited Anderson's home in Anchorage equipped with two warrants. The officers from the city's Juvenile Bureau carried a warrant for Anderson's arrest on a charge of Lewd and Lascivious Acts Toward a Child. The officers from Metro were armed with a warrant authorizing them to search Anderson's home for marijuana and related paraphernalia.\\nUpon their arrival at Anderson's small, one-room apartment, Investigator Edward Harter, of Metro, knocked on the door and advised Anderson of the search warrant. Anderson admitted the police officers and was immediately arrested by one of the Juvenile Officers, Donald Earl. While two officers escorted Anderson downtown to be booked, four officers from Metro and Investigator Earl, of the Juvenile Bureau, remained in his apartment to execute the search warrant. During the course of his search, Investigator Harter observed an object hanging from the ceiling in the apartment. He identified it as a strip of black-and-white photographic negatives and moved it toward either the wall or the window to determine its contents. Harter claims to have observed a pipe in one of the frames. Officer Needham, also from Metro, held this same strip of negatives to the light and observed a pipe and what appealed to him to be marijuana.\\nShortly thereafter, Investigator Jones, of Metro, observed a slide projector with a number of slides in its tray on a shelf on the west wall of the room. He took the projector and slides down from the shelf and examined them. He scrutinized the slides by holding each one to the light. The slides revealed images of nude, male children.\\nShortly thereafter, Investigator Need-ham found another stack of slides, about three quarters of an inch thick, lying without a container on another shelf. Like Investigator Jones, Needham scrutinized the slides by holding each one to the light. Needham also found his batch of slides to contain images of nude, male children. During the remainder of the search, thirty-three items, in addition to the slides, were seized by the officers including a driver's license, a quantity of marijuana, a poster of a young boy and girl, a slide projector, a portable calculator, several books, and a stack of assorted comic books. By printing the negatives which they had seized, the police officers were able to obtain the identities of the boys depicted in the slides.\\nAnderson was subsequently charged with lewd and lascivious acts toward a child and with contributing to the delinquency of a minor. The boys, who were 16 and 13 years of age, became the state's chief witnesses against Anderson in these proceedings, testifying that he had performed acts of oral copulation upon each of them. He was convicted in a court trial and sentenced to two years on the \\\"contributing\\\" charge and to six years on the \\\"lewd- and lascivious\\\" charge, to be served consecutively. Anderson has pursued this appeal contending that the trial court erred in failing to suppress the photographic slides, and evidence obtained therefrom. He asserts that the evidence was obtained in violation of his constitutional rights under the Fourth and Fifth Amendments to the United States Constitution and Article I, Sections 14 and 22, of the Alaska Constitution. Anderson has also appealed, as excessive, the sentence imposed by the trial court.\\nThe state has asserted, and the trial court adopted, the position that the slides were properly admitted at trial as within the \\\"plain view\\\" exception to the warrant requirement. Anderson contends, however, that the slides were not within the plain view of the officers, nor did the search warrant, which authorized a search of his home for marijuana and related items, permit their seizure. Thus, Anderson concludes that the trial court erred in failing to suppress both the slides and the evidence obtained therefrom. We must first resolve the following issue: Did a search occur when the officers lifted the slides to the light or were the slides, and their contents, within the plain view of the officers ?\\nWe have provided, in prior cases, a definition of the type of police intrusion which will constitute a search. In Brown v. State we stated that\\n. the term [search] implies some exploratory investigation or an invasion and quest, a looking for or seeking out. The quest may be secret, intrusive or accomplished by force, and it has been held that a search implies some sort of force, either actual or constructive, much or little. A search implies a prying into hidden places for that which is concealed and that the object searched for has been hidden or intentionally put out of the way.\\nSeveral prior Alaska and United States Supreme Court cases provide an analytical framework within which we may examine the intrusion by the police officers in lifting Anderson's slides to the light for scrutiny and determine whether such action constituted a \\\"prying into hidden places for . . . [an] object [which] has been hidden . . in other words, a search. The United States Supreme Court outlined in Katz v. United States the protection afforded by the Fourth Amendment to the United States Constitution.\\nThe Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection, (citation omitted) But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.\\nTerry v. Ohio elaborated on this theme, quoting the \\\"expectation of privacy\\\" test first enunciated in Katz:\\nand wherever an individual may harbor a reasonable \\\"expectation of privacy,\\\" id., at 361, 88 S.Ct. at 516, he is entitled to be free from unreasonable governmental intrusion.\\nWe adopted these principles in Smith v. State , in which Justice Connor, writing for the majority, applied the test first articulated by Mr. Justice Harlan in his concurrence in Katz for determining the existence of a \\\"reasonable expectation of privacy\\\". We required\\n. first, that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as \\\"reasonable.\\\"\\nTaking these principles in hand, we must analyze and weigh two independent considerations: first, we must scrutinize the governmental intrusion which resulted in the seizure of the slides; and second, we must examine the expectation of privacy which Michael Anderson had in those slides.\\nPolice intrusions upon the privacy of private citizens span a broad spectrum of activity. At one end of the spectrum lie the pryings into hidden places which are constitutionally condemned. At the other end of the spectrum lies the seizure of items which are knowingly exposed to the public and are in plain view. We must examine the conduct and the police officers here and determine which of these two terminal points best characterizes the intrusion here.\\nUnder the \\\"plain view\\\" doctrine, certain evidence may be seized without the procuring of a warrant. Police officers need not turn their backs on evidence, in-strumentalities, or fruits of a crime which are inadvertently discovered. Anderson's slides, however, were not \\\"seizable\\\" while they were stacked in the projector, lying on the shelf, or in the hands of the officers. At all of these points in time the slides were innocuous. They did not appear to be either evidence, instrumentalities, or fruits of a crime. It was only after they were held to the light that any incriminating quality of the slides was discerned. Thus, the core issue which is presented here involves how much movement, probing or testing of an apparently innocuous object, aimed at uncovering an incriminating- characteristic, is permitted. The appellant contends that the scrutinizing of the slides by the officers, by lifting them to the light, constituted a \\\"prying into hidden places\\\". The state disputes the contention that the lifting of the slides to the light constituted an intrusion or search separate from that which was authorized by the warrant. The state asserts that the examination of the slides was not an intrusion of sufficient magnitude to rise to the level of a search. Since the slides were within the view of the officers, the state argues, they were seizable.\\nWe have used the \\\"plain view\\\" doctrine in several previous cases, holding that no search occurs when an item falls into view of an officer. But in all of these cases the incriminating quality of the item subsequently seized was readily apparent and required no movement of either the observer or the observed object to detect. In Erickson v. State we held that marijuana which had been removed by officers from a suitcase could not be held to have been in plain view, hence, a violative search occurred. Quoting Justice Traynor of the Supreme Court of California we said:\\nIt is inherently impossible for the contents of a closed opaque container to be in plain view regardless of the size of the container or the material it is made of. A search of the container is necessary to disclose its contents.\\nLike the opaque container about which Justice Traynor wrote in People v. Marshall, and like the suitcase in Erick-\\nson v. State Anderson's slides required some movement, some probing by the officers, before any incriminating quality could have been disclosed.\\nIn Daygee v. State the officer shined his flashlight into the rear of an automobile which he had stopped. In the back seat he observed a plastic bag which he suspected contained marijuana. Daygee contended that the shining of the flashlight constituted an unreasonable search, thus removing the \\\"plain view\\\" protection from the warrantless seizure. Writing for the majority, Justice Erwin rejected that argument stating:\\nIt is no search to observe that which is in the plain view of an officer who is rightfully in a position to have that view. That the officer's view in this case was aided by a flashlight is irrelevant. The flashlight beam merely illuminated that which would have been visible in the light of day.\\nSeveral distinctions, however, which are admittedly finely drawn, dissuade us from extending the reasoned decision of Daygee v. State, supra, to the seizure of Anderson's slides.\\nUnlike the bag of marijuana in Daygee which would have been visible in the light of day, the slides seized by the officers here were equally innocuous in day or night. The slides were in an open tray on a shelf on a wall of the room. There was nothing about them to suggest that they contained marijuana or drug paraphernalia as set forth in the search warrant. \\\"But for\\\" the action of the officers in lifting them to the light, the incriminating nature of the slides would not have been revealed. The activity by the police officers here falls, analytically, between the opening of the suitcase in Erickson and the shining of the flashlight in Daygee. While in each of these cases the incriminating nature of the items eventually seized required some action on the part of the officers to be revealed we found the conduct of the police in Erickson to be violative while in Daygee, we found the officer's actions permissible.\\nThe \\\"plain view\\\" doctrine was examined by the United States Supreme Court in Coolidge v. New Hampshire . In the majority opinion Mr. Justice Stewart articulated the \\\"immediately apparent\\\" test which sets the constitutional limitations to the \\\"plain view\\\" doctrine.\\nOf course, the extension of the original justification [for an intrusion] is legitimate only where it is immediately apparent to the police that they have evidence before them; the \\\"plain view\\\" doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges.\\nIn the course of executing the search warrant for marijuana, the officers here found themselves probing a slide projector and a stack of slides for the contraband substance. At that point it was not \\\"immediately apparent\\\" to them that the slides were evidence, instrumentalities or fruits of a crime. It was only after they probed further, straying from the directives of the warrant, and held the slides to the light, that incriminating evidence of another crime fell into view.\\nIn Stanley v. Georgia police officers entered the defendant's home to execute a search warrant for evidence of an illegal gambling business. Three reels of 8mm film were found in the bedroom and were viewed, by the officers, with a projector and screen which were available. The films, found to be obscene, were seized and the defendant was convicted under a Georgia obscenity statute. Mr. Justice Stewart, in his concurring opinion, found the search to have violated the defendant's constitutional rights. He stated:\\nThis is not a case where agents in the course of a lawful search came upon contraband, criminal activity, or criminal evidence in plain view. For the record makes clear that the contents of the films could not be determined by mere inspection.\\nThus, Stanley gives us still another point on the spectrum of police intrusions. Having weighed carefully the principles enunciated in these cases and the protection afforded by the Alaska and United States Constitutions, we are of the view that the warrantless seizure of Anderson's slides by the police officers cannot be sustained as having been within the spirit of the \\\"plain view\\\" doctrine.\\nHad the slides been left where they were found, or had the inspection of the slides been limited to one designed to uncover the type of evidence described in the warrant, marijuana and related paraphernalia, the incriminating quality of the slides would not have been detected. A similar situa tion occurred in a Texas case, Nicholas v. State. There officers entered the defendant's home to arrest him for being a fugitive from another state. Before leaving, an officer walked to the kitchen to turn off a stove which he had noticed was turned on. On his way he observed, on a bar between the living room and the kitchen, numerous photographic negatives. Like the slides found in Anderson's apartment, these negatives were innocuous until they were held to the light by the officer; and like Anderson's slides, they, too, depicted aberrant sexual conduct.\\nRelying on the \\\"immediate apparent\\\" language in Coolidge v. New Hampshire, supra, the Texas court held that the slides were not lawfully seized in \\\"plain view\\\" because the incriminating quality was only detected after the officer held them to the light. That action, the court stated, constituted an unlawful warrantless search.\\nIn the instant case, the officers had, prior to their examining the negatives, neither knowledge nor mere suspicion of an offense related to the film. What was in \\\"plain view\\\" in the apartment was not evidence of any crime or criminal behavior. It was not contraband or fruits or instrumentalities of any offense about which they knew or suspected upon entering the apartment. The officers did not inadvertently come across a piece of evidence incriminating the accused. The negatives were not incriminating until after the officers had examined them. Thus, it was not \\\"immediately apparent\\\" to the officers that they had evidence before them.\\nWe find ourselves in agreement with the Texas court on this point. The seizure of Anderson's slides can not be sustained as within the \\\"plain view\\\" doctrine. The incriminating nature of the slides was not immediately apparent to the officers executing the search warrant. Their action, in lifting the slides to the light to examine their contents, constituted a search of constitutional dimensions.\\nWe recognize that the law of search and seizure is complex and often difficult to apply. That the permutations of human behavior sometimes carry police officers into situations which demand decisions close to the line of unconstitutional instru-sions is, perhaps, an inevitability. But the rights and liberties secured by the federal and state constitutions are paramount and they will be protected.\\nThe insertion of the Fourth Amendment into our constitutional scheme reflected a reaction by the framers to the proliferation of writs of assistance which were in common use by the English courts. The violation of personal liberty and dignity manifested by the widespread use of such writs, in which broad discretion was delegated to law enforcement officials in exercising searches and seizures of private property, was deemed deeply offensive to the emerging sense of American democracy. Thus, the Fourth Amendment created a barrier between the citizen and his government, protecting him from unreasonable searches and seizures. The general search, in which police officers moved from one object to the next in search of unidentified incriminating evidence, was prohibited; warrants, issued upon a proper showing of probable cause and particularly describing the items to be seized, set the constitutional limits to police intrusions into the lives of the citizenry.\\nWhile the action of the police officers here in examining Anderson's slides may be viewed by some as only a small deviation from the constitutional standard, we feel no less moved to condemn such action here than we would were the intrusion by the police officers of an obviously greater magnitude. As Mr. Justice Bradley eloquently stated in Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886),\\nillegitimate and unconstitutional practices get their first footing . by silent approaches and slight deviations from legal modes or procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance.\\nWe, of course, do not condone the behavior of the appellant, and we share the agony which undoubtedly befell the parents of the children who were victimized. But, we are mindful of Mr. Justice Frankfurter's observation that cases presenting issues of constitutional rights frequently involve people who have committed the most appalling of violations. He stated:\\nIt is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people.\\nThe \\\"plain view\\\" doctrine is a court-created exception to the warrant requirement. Its basis is in logic and we do not mean to undermine this cornerstone of the \\\"search and seizure\\\" framework; rather, the doctrine is reaffirmed. But we will not pull and stretch the doctrine to cover a wide range of police activity which is best characterized as unconstitutionally excessive. To the extent that seizable items are observed within the plain view of an officer who is lawfully in a place from which those items may be observed, they may be seized. We construe the words \\\"plain view\\\", however, in their most literal sense. As stated in Bell v. State, 482 P.2d 854, 860 (Alaska 1971):\\n[A]n officer may seize evidence of a crime even though such property is not particularly described in the search warrant when the objects discovered and seized are reasonably related to the offense in question, when the searching officer at the time of the seizure has a reasonable basis for drawing a connection between the observed objects and the crime which furnished the basis for the search warrant, and the discovery of such property is made in the course of a good faith search conducted within the authorized perimeters of the search warrants. (footnotes omitted) That we find that the slides were not in\\nplain view does not completely dispose of this issue. As indicated above, there is also the requirement that Anderson have had a \\\"reasonable expectation of privacy\\\" in the items or areas searched before the seizure will be invalidated.\\nTaking the two-pronged test which we adopted in Smith v. State, supra, we must inquire whether Anderson exhibited an actual, subjective expectation of privacy with respect to his slides and whether that expectation was reasonable. With respect to the first part of this test there is substantial evidence from which it can be concluded that Anderson did exhibit an actual expectation of privacy in his slides. Anderson had stored his slides on a shelf in his one-room apartment. Indeed, the shelves may have been one of the few places in his home in which objects intended to remain private could be stored. We believe this to be sufficient evidence of his subjective expectation that the slides would remain private.\\nThe expectation of privacy must also be one which will be recognized as \\\"reasonable\\\". That we should recognize that the expectation of privacy retained in photographic slides stored on a shelf in one's home is \\\"reasonable\\\" is little more than axiomatic given the language of both the federal and state constitutions and our previous comments in this area. The Fourth Amendment to the United States Constitution specifically enumerates houses, papers, and effects as being protected from unreasonable searches and seizures Section 14 of Article I of the Alaska Constitution provides similar protection. In Smith v. State, supra we observed, without deciding, that a trash barrel stored close to one's home might be subject to a \\\"reasonable expectation of privacy\\\". Additional protection is found in the \\\"right to privacy\\\" clause of the state constitution which requires that the right to privacy in one's home be preserved.\\nThus, we have no difficulty in recognizing, as reasonable, the expectation of privacy retained in photographic slides stored on a shelf in one's home. We cannot accept the state's contention that any expectation of privacy Anderson harbored in his personal effects was obliterated by the search warrant which authorized the officers to examine his home and its contents. We believe that Anderson's rights and expectations of privacy were limited only to the extent necessary to properly execute the search warrant. While the warrant permitted an intrusion of substantial magnitude, given the infinite number of places marijuana could be stored, it did not provide authorization for the \\\"general\\\" search which is constitutionally abhorred. We believe that Anderson retained a reasonable expectation of privacy in all areas of his home and all of his papers and effects which were not a proper object of a search for the items identified in the warrant.\\nWe further conclude that the warrant authorizing the police officers to search for marijuana, pipes, baggies and paraphernalia for packaging and use of marijuana, did not authorize the officers to engage in conduct such as the searching of Anderson's slides by lifting them to the light. The police officers were limited in. their search to places reasonably likely to reveal items enumerated in the warrant. As we stated in Bell v. State , the requirement that warrants particularly describe the items which are to be seized renders general searches under them impossible and prevents the seizure, with several specific exceptions, of one thing under a warrant describing another. Looking at the items listed in the search warrant for seizure, we conclude that the warrant did not authorize a search of Anderson's slides.\\nThe warrant authorized a search for marijuana. While the state has suggested that a search of the slides might have revealed traces of marijuana residue, we find this argument untenable. If marijuana were to be detected on the surface of the slide, an \\\"in-hand\\\" examination would have sufficed; displaying the slide to the light to discern the images contained therein was not reasonably likely to reve\\u00e1l the contraband substance.\\nThe warrant also authorized the seizure of \\\"pipes and baggies\\\". Obviously, the holding of the slides to the light can not be sustained as reasonably likely to uncover those items. Finally, the warrant authorized the seizure of \\\"paraphernalia for packaging and use\\\". Again items of this sort were not likely to be. revealed by holding the slides to the light. Simply put, the warrant did not authorize the officers to seize photographs, whether they be innocuous or indicative of drug activity. We fail to see how the holding of the slide to the light could have been reasonably likely to reveal items the seizure of which was authorized by the warrant.\\nAccordingly, we hold that the slides were not in plain view of the officers. We hold, additionally, that Michael Anderson maintained a reasonable expectation of privacy in his slides, and that the warrant authorizing the police officers to search for marijuana, pipes, baggies and paraphernalia for packaging and use of marijuana did not permit the officers to probe and examine items in Anderson's home not reasonably likely to reveal items particularized in the warrant. Because we regard the failure to suppress the evidence unlawfully seized by the officers as erroneous, we are compelled to reverse the conviction and remand this matter to the superior court for proceedings consistent with this opinion. We need not consider appellant's contention that the sentence imposed was clearly erroneous.\\nREVERSED AND REMANDED.\\n. This information concerned Anderson's use of marijuana for which, in April, 1974, a criminal penalty was s.till provided in Alaska.\\n. AS 11.15.134 provides:\\n(a) A person who commits a lewd or lascivious act, including an act constituting another crime, upon or with the body of a child under 16 years of age, intending to arouse, appeal to, or gratify his lust, passions, or sexual desires, or the lust, passions, or sexual desires of the child is punishable by imprisonment for not more than 10 years nor less than one year.\\n(b) No court may suspend the sentence of a person convicted of violating (a) of this section until the court obtains a report from a reputable psychiatrist stating the mental condition of the person. No paroling authority may parole a person convicted of violating (a) of this section until the paroling authority receives a report from a reputable psychiatrist stating the mental condition of the person and stating that the person was under observation while confined in prison.\\nThe charges which provided the basis for this arrest warrant are unrelated to this appeal. At the time of his arrest on April 18, 1974, by Juvenile Officers, law enforcement officials were unaware of the acts which ultimately led to the conviction from which Anderson now appeals.\\n.The exact description of the items to be seized under the warrant was:\\n. . . quantity of ,the unlawful drug cannabis or marijuana, together with pipes, plastic baggies and other paraphernalia for the packaging and use of said drug.\\n. The slides which were observed and subsequently seized were actually photographic negatives which had been mounted, as slides, in cardboard holders. While we refer to the items as \\\"slides\\\" throughout this opinion, .they were unlike ordinary slides in that they presented negative images, more difficult to discern.\\n. AS 11.15.134 (see note 2, supra).\\n. AS 11.40.130(b) provides:\\n(b) A person who by threats, command or persuasion endeavors to induce a child under the age of 18 years to perform an act or follow a course of conduct which would cause or manifestly tend to cause him to become or remain a delinquent is guilty of a felony, and upon conviction is punishable by imprisoment for not less than one year nor more than two years.\\n. United States Constitution, Fourth Amendment provides:\\nThe right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, bu,t upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.\\n. United States Constitution, Fifth Amendment provides, in part:\\n[No person] shall be compelled in any criminal case to be a witness against himself\\n. Alaska Constitution, Article I, section 14 provides:\\nThe right of the people to be secure in their persons, houses and other property, papers, and effects, against unreasonable searches and seizures, shall not be violated. No warrants shall issue, bu,t upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.\\n. Alaska Constitution, Article I, section 22 provides:\\nThe right of the people ,to privacy is recognized and shall not be infringed. The legislature shall implement this section.\\n. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) ; State v. Davenport, 510 P.2d 78 (Alaska 1973) ; Bell v. State, 482 P.2d 854 (Alaska 1971) ; Pope v. State, 478 P.2d 801 (Alaska 1970) ; Kloekenhrinlc v. State, 472 P.2d 958 (Alaska 1970) ; Stevens v. State, 443 P.2d 600 (Alaska 1968).\\n. If the slides were seized in violation of the defendant's constitutional rights, any evidence derived therefrom would also be inadmissible as a \\\"fruit of the poisoned tree\\\". See Wong Sim v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963) ; Erickson v. State, 507 P.2d 508 (Alaska 1973).\\n. 372 P.2d 785, 790 (Alaska 1962), quoting from People v. West, 144 Cal.App.2d 214, 300 P.2d 729, 733 (1956).\\n. 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed. 2d 576 (1967).\\n. Id. at 351-352, 88 S.Ct. at 511.\\n. 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).\\n. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).\\n. 392 U.S. 1, 9, 88 S.Ct. 1868, 1873, 20 L.Ed.2d 889.\\n. 510 P.2d 793 (Alaska 1973).\\n. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).\\n. Smith v. State, 510 P.2d 793, 797 (Alaska 1973), quoting Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576, 587-588 (1967).\\n. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) ; State v. Davenport, 510 P.2d 78 (Alaska 1973) ; Bell v. State, 482 P.2d 854 (Alaska 1971) ; Pope v. State, 478 P.2d 801 (Alaska 1971) ; Kloehenbrink v. State, 472 P.2d 958 (Alaska 1970) ; Stevens v. State, 443 P.2d 600 (Alaska 1968).\\n. Daygee v. State, 514 P.2d 1159 (Alaska 1973), in which a plastic bag of marijuana was observed by officers in an automobile; Pope v. State, 478 P.2d 801 (Alaska 1970), in which a gun was observed by officers on the seat of an automobile; and Kloohenbrink v. State, 472 P.2d 958 (Alaska 1970), in which illegal salmon fishing was observed by officers. But see State v. Spietz, 531 P. 2d 521 (Alaska 1975), in which a tub of marijuana was observed by officers.\\n. 507 P.2d 508 (Alaska 1973).\\n. Id. at page 513, quoting from People v. Marshall, 69 Cal.2d 51, 69 Cal.Rptr. 585, 442 P.2d 665, 669 (1968). See also People v. Brisendine, 13 Cal.3d 528, 119 Cal.Rptr. 315, 531 P.2d 1099 (1975).\\n. 69 Cal .2d 51, 69 Cal.Rptr. 585, 442 P. 2d 665 (1968).\\n. 507 P.2d 508 (Alaska 1973).\\n. 514 P.2d 1159 (Alaska 1973).\\n. Id. at 1162. This approach, with respect to illumination by flashlight, is taken by nearly all courts. See, in accord, People v. Boileau, 538 P.2d 484 (Colo.App.1975) ; United States v. Johnson, 506 F.2d 674 (8th Cir. 1975) ; United States v. Lewis,, 504 F.2d 92 (6th Cir. 1974) ; Cobb v. Wyrick, 379 F. Supp. 1287 (D.C.Mo.1974).\\n.As with flashlight observations, courts have had little difficulty sustaining the war-rantless seizure of items observed in plain view with the assistance of binoculars. See, for example, United States v. Lee, 274 U.S. 559, 47 S.Ct. 746, 71 L.Ed. 1202 (1927) ; Johnson v. State, 2 Md.App. 300, 234 A.2d 464 (1967) ; Commonwealth v. Uernley, 216 Pa.Super. 177, 263 A.2d 904 (1970) ; People v. Ciochon, 23 Ill.App.3d 363, 319 N.E. 2d 332 (1974) ; and People v. Vermouth, 42 Cal.App.3d 353, 116 Cal.Rptr. 675 (1974).\\n. 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971).\\n. Id. at 466, 91 S.C.t. at 2038.\\n. 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969).\\n. Id. at 571, 89 S.Ct. at 1251.\\n. Contrast this situation with, for example, that presented in State v. Davenport, 510 P.2d 78, 83 (Alaska 1973) in which the officers, who were searching for guns, had rea sonable grounds to believe .that furs which they discovered were the fruit of a crime.\\n. 502 S.W.2d 169 (Tex.Cr.App.1973).\\n. Id. at 172 (emphasis added, footnotes omitted).\\n. United States v. Rahinouritz, 339 U.S. 56, 69, 70 S.Ct. 430, 436, 94 L.Ed. 653, 662 (1949).\\n. See also State v. Davenport, 510 P.2d 78 (Alaska 1973).\\n. Smith v. State, 510 P.2d 793, 797 (Alaska 1973). See also Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868, 1873, 20 L.Ed.2d 889, 899 (1968) ; United States v. White, 401 U.S. 745, 751-52, 91 S.Ct. 1122, 1125-1126, 28 L.Ed.2d 453, 458-59 (1971).\\n. See footnote, 7, supra.\\n. See footnote 9, supra.\\n. 510 P.2d at 798. See also Mr. Justice Harlan's concurring opinion in Kate v. United, States, 389 U.S. 347, 360, 88 S.C.t. 507, 516, 19 L.Ed.2d 576, 587 (1967), citing Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914) and Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924), in which the expectation of privacy maintained in the home is used as an example of one which is recognized, constitutionally, as \\\"reasonable\\\".\\n. Alaska Constitution, Article I, section 22. (See footnote 10, supra.) See also Ravin v. State, 537 P.2d 494, 503-504 (Alaska (1975).\\n. See, for example, Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886).\\n. 482 P.2d 854 (Alaska 1971).\\n. See Bell v. State, 482 P.2d 854 (Alaska 1971).\\n. Marr\\u00f3n v. United States, 275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231 (1927) ; See also Stanford v. Texas, 379 U.S. 476, 85 S.Ct. 506, 13 L.Ed.2d 431 (1965) ; Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967) ; and Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886).\\n. See Bell v. State, 482 P.2d 854, 860 (Alaska 1971), in which we said:\\n[ajn officer may seize evidence of a crime even though such property is not particularly described in the search warrant when the objects discovered and seized are reasonably related to the offense in question, when the searching officer at ,the time of the seizure has a reasonable basis for drawing a connection between the observed objects and the crime which furnished the basis for the search warrant, and the discovery of such property is made in the course of a good faith search conducted within the authorized perimeters of the search warrant, (footnotes omitted)\"}"
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+"{\"id\": \"12034082\", \"name\": \"STATE of Alaska, Appellant, v. Andrei MARTUSHEV, Appellee\", \"name_abbreviation\": \"State v. Martushev\", \"decision_date\": \"1993-02-05\", \"docket_number\": \"No. A-4003\", \"first_page\": \"144\", \"last_page\": \"150\", \"citations\": \"846 P.2d 144\", \"volume\": \"846\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T22:08:44.620386+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before BRYNER, C.J., and COATS and MANNHEIMER, JJ.\", \"parties\": \"STATE of Alaska, Appellant, v. Andrei MARTUSHEV, Appellee.\", \"head_matter\": \"STATE of Alaska, Appellant, v. Andrei MARTUSHEV, Appellee.\\nNo. A-4003.\\nCourt of Appeals of Alaska.\\nFeb. 5, 1993.\\nJoseph N. Levesque, Asst. Dist. Atty., Kenai, and Charles E. Cole, Atty. Gen., Juneau, for appellant.\\nRobert Merle Cowan, Law Offices of Co-wan & Gerry, Kenai, for appellee.\\nBefore BRYNER, C.J., and COATS and MANNHEIMER, JJ.\", \"word_count\": \"3110\", \"char_count\": \"19327\", \"text\": \"OPINION\\nBRYNER, Chief Judge.\\nAndrei Martushev was charged with fishing commercially in closed waters. District Court Magistrate Lynn H. Christensen dismissed the prosecution, ruling that the emergency order Martushev allegedly violated provided inadequate notice of its effective boundary. The state appeals, and we reverse.\\nFishing is a strictly regulated activity in Alaska; AS 16.05.920(a) prohibits the taking of fish except as permitted by statute or regulation. The open season for commercial drift gill net fishing of salmon in the Upper Subdistrict of the Central District of the Cook Inlet Area is defined by regulation at 5 Alaska Administrative Code (AAC) 21.310(2)(B). The open season is further broken down into weekly fishing periods by 5 AAC 21.320(b):\\nIn the drift gill net fishery\\n(1) salmon may be taken in the Central District from 7:00 a.m. Monday until 7:00 p.m. Monday and from 7:00 a.m. Friday until 7:00 p.m. Friday .;\\n(2) the fishing periods set forth in (1) of this subsection may be modified by emergency order[.]\\nOn Friday, July 20,1990, the Department of Fish and Game, finding that an excessive amount of salmon warranted extending the weekly fishing period in a limited area for a limited time, issued Emergency Order 2S-09-90, which temporarily extended the opening for \\\"that portion of the Upper Subdistrict [of the Central District] south of the latitude of Collier's Dock....\\\" Neither the emergency order nor any statute or regulation specified the actual latitude of Collier's Dock, although the Department had used the dock as a boundary landmark for two years.\\nAt a bench trial, Alaska State Trooper Kenneth Merrill testified that he was patrolling Cook Inlet during the early morning hours of Saturday, July 21, to ensure that Emergency Order 2S-09-90 was not being violated. At about 5:40 a.m., Merrill observed Martushev's vessel, the Sea Zone, fishing north of Collier's Dock. Merrill took several photographs of the boat, which were admitted into evidence. In three of the photographs, a pier, which Merrill identified as Collier's Dock, is visible in the background beyond Martushev's boat, and light from the early morning sun is visible to the left; therefore, Merrill testified, the photographs show that Martush-ev was fishing north of Collier's Dock.\\nMerrill testified that another officer, Trooper Robert Lester, took loran (long-range navigation) readings to confirm the Sea Zone's location. Merrill testified that these readings showed that Martushev was at latitude 60\\u00b041'25\\\" N., which was 1.1 miles north of the Collier's Dock boundary line. Merrill also testified that the most recent set latitude written in Martushev's log on board his vessel was latitude 60\\u00b040'74\\\" N., a location about one-half mile north of the Collier's Dock line. On cross-examination, Merrill testified that he did not know the latitude of Collier's Dock without looking up the figure. However, the complaint form that Merrill filled out specified the dock's location as latitude 60\\u00b040'25\\\" N. The state also sought unsuccessfully to enter into evidence a chart of the United States Cook Inlet Drift Association that gave the same figure as the latitude of \\\"Collier Pier,\\\" but Magistrate Christensen ruled that the chart was not relevant because Martushev was not a member of the association. Merrill also admitted on cross-examination that Mar-tushev's open and cooperative behavior on the morning of July 21 was \\\"consistent\\\" with Martushev not having known where the boundary was and not having known he was north of it.\\nAt the conclusion of Merrill's testimony, Martushev moved to dismiss the case because the emergency order did not identify the specific latitude of Collier's Dock. Although he conceded that the correct boundary was latitude 60\\u00b040'25\\\" N., Martushev argued that:\\nsince that was not clearly articulated in the opening order there, that the order as to what the northern boundary was in this matter is void for vagueness. It would have simply been easy to have stated the latitude instead of talking about Collier's Dock, because that makes an assumption that everybody knows which dock is which dock up there, and that's not necessarily true.\\nThe prosecutor argued in response that specifying the exact latitude was not required for a strict liability offense, that the language of the emergency order was clear, and that \\\"most fishermen are assumed to have knowledge of the sea, and knowledge of regulations, and areas that are open and closed. They shouldn't be fishing if they don't.\\\"\\nMagistrate Christensen granted Mar-tushev's motion to dismiss:\\nThe court will first note that in other regulations in the Administrative Code, for instance 5 AAC 21.330 \\u2014 I have not been asked to take judicial notice of any other regulation, but I will note that in that regulation at least, when a landmark is referred to, it is generally given in the latitude and a longitude of that mark. I've not been able to find anything in the surrounding statutes that refers to Collier's Dock.\\nThe state having an opportunity to respond to defendant's motion for vagueness may have been able to overcome that motion by presenting evidence to the court that there is some navigational device, for instance, a chart that is put out by the U.S. Coast Guard, that would refer to Collier's Dock as a normal navigational aid. The court has no idea if any such evidence exists, but as this regulation is written and based on the evidence and the record of this proceeding, the court does find that the emergency order is vague. And I'm going to grant the defendant's motion to dismiss for vagueness.\\nAnd I will comment that this is not the first emergency order regulation that this court has found vague because of the description. And I agree with [defense counsel], it would have been fairly easy for Fish and Game, who promulgates these emergency orders, to put the latitude and longitude in there. And absent any showing that it is a common navigational aid, I grant defendant's motion to dismiss the charge.\\nOn appeal, the state argues that Magistrate Christensen erred in dismissing the case. Before addressing the merits of the state's claim, however, we must decide whether the state is entitled to an appeal under these circumstances. The state ordinarily has no right of appeal in criminal cases except to test the sufficiency of the indictment, information, or complaint. AS 22.07.020(d)(2); Alaska R.App.P. 202(c); Kott v. State, 678 P.2d 386, 389 (Alaska 1984).\\nMartushev argues that the state has no right to appeal under the circumstances of this case, because it seeks to test the sufficiency of the emergency order on which the complaint is based, rather than the sufficiency of the complaint itself. In support of this argument, Martushev points out that the complaint against him, unlike the emergency order, is not vague, since it specifies that the effective boundary of the area open to fishing is latitude 60\\u00b040'25\\\" N.\\nTesting the \\\"sufficiency\\\" of an indictment, however, is not limited to contentions that the indictment is insufficient on its face. For example, the state may appeal to test the sufficiency of the evidence to support the indictment or the legality of the procedures used to secure the indictment. Kott, 678 P.2d at 389 n. 4. The state may also appeal when a trial court dismisses a complaint after ruling that the underlying statute or ordinance does not apply to the facts alleged in.the complaint. State v. Straetz, 758 P.2d 133, 134 n. 1 (Alaska App.1988); Anchorage v. Lloyd, 679 P.2d 486, 486 n. 1 (Alaska App.1984). We conclude that the state may appeal from a trial court order dismissing a ease on the ground that the underlying regulation is unconstitutionally vague. Cf. State v. Allen, 304 N.W.2d 203, 205-06 (Iowa 1981) (state could appeal as of right from dismissal for vagueness after trial). An appeal from such a dismissal will not violate the double jeopardy clauses of the federal or state constitutions even when the defendant moved for dismissal after trial had begun. Selman v. State, 406 P.2d 181, 186-87 (Alaska 1965), overruled on other grounds, Whitton v. State, 479 P.2d 302, 312 (Alaska 1970).\\nMartushev nevertheless argues that Magistrate Christensen did not simply dismiss this case because the emergency order was unconstitutionally vague, but in effect granted a judgment of acquittal be cause the state produced insufficient evidence that Martushev fished beyond the boundary vaguely described in the emergency order. We disagree with Martush-ev's characterization of the dismissal order.\\nWhen \\\"the ruling of the judge, whatever its label, actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged,\\\" that ruling is a judgment of acquittal; appellate review is not permitted under AS 22.07.020(d)(2) and is affirmatively barred by double jeopardy. State v. Thronsen, 809 P.2d 941, 943 (Alaska App.1991) (quoting United States v. Martin Linen Supply Co., 430 U.S. 564, 571, 97 S.Ct. 1349, 1354, 51 L.Ed.2d 642 (1977)). Conversely, when a court orders dismissal on legal grounds that do not require resolution of the factual elements of an offense, the order does not amount to a judgment of acquittal, regardless of its timing or the label attached thereto. Cf. Alaska R.Crim.P. 12(b) (empowering the court to adjudicate, prior to trial, \\\"[a]ny defense, objection, or request which is capable of determination without the trial of the general issue\\\"); State v. Hebert, 803 P.2d 863, 868-69 (Alaska 1990) (a trial defense based on invalidity of regulation upon which prosecution is based would, if established, render complaint invalid and warrant a dismissal).\\nIn this case, the trial court's order of dismissal contains language suggesting that the court may have weighed or considered some of the evidence at trial in making its ruling. Magistrate Christensen stated that he based his decision on \\\"the evidence and the record of this proceeding\\\" and the fact that the state had presented no evidence to the court showing that Collier's Dock was a common navigational aid.\\nBeyond noting the lack of evidence to refute Martushev's claim of vagueness, however, Magistrate Christensen made no finding or decision implicating the factual elements of the offense charged: the magistrate did not find the evidence insufficient to convict Martushev of being north of Collier's Dock and outside the open fishing area, nor did the magistrate purport to acquit Martushev on that ground.\\nMartushev conceded below that Collier's Dock is actually located at latitude 60\\u00b040'25\\\" N.; he nevertheless contended that, because this information was not specified in the emergency order and was otherwise unavailable to him, he could not reasonably have been expected to know where the boundary line was. This appears to have been the sole ground upon which Magistrate Christensen dismissed Martushev's case. We therefore turn to the merits of this appeal.\\nDue process requires that a Fish and Game emergency order not be stated \\\"in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.\\\" Fishing Vessel American Eagle v. State, 620 P.2d 657, 665 (Alaska 1980) (quoting Stock v. State, 526 P.2d 3, 8 (Alaska 1974)), appeal dismissed, 454 U.S. 1130, 102 S.Ct. 985, 71 L.Ed.2d 284 (1982). Martushev contends that Emergency Order 2S-09-90 was vague because, by omitting the latitude of Collier's Dock, the order failed to provide adequate notice to ordinary citizens of the conduct it prohibited.\\nIn support of this argument, Martushev alleges that there is no publication, map, statute, or administrative code provision specifying the exact location of Collier's Dock and that the area \\\"south of the latitude of Collier's Dock\\\" is not well-known or clearly marked. Martushev also points out that Merrill did not know the latitude or longitude of Collier's Dock, that the landmark boundary has been in use for only two years, and that there are other companies with docks along that area of the shore.\\nHowever, Martushev made no effort below to substantiate his assertion that the location of Collier's Dock was incapable of being readily ascertained. Instead, Mar-tushev sought to turn the tables on the prosecution, claiming that the state had failed to prove that he should have been aware of the dock's location. In ordering dismissal, Magistrate Christensen accepted Martushev's approach to the vagueness issue, in effect deciding that an emergency order naming a landmark without also giving its geographic coordinates is presumptively invalid unless the state shows that the landmark is a normal or common navigational aid.\\nThis approach is incorrect as a matter of law, for it subverts the usual rule that places the burden of establishing a claim squarely on the shoulders of the claim's proponent. To establish vagueness, it was not sufficient for Martushev to show that the Department of Fish and Game could have done better \\u2014 that it could have described the disputed boundary with greater clarity by specifying the latitude of Collier's Dock. Rather, as we have already indicated, Martushev was required to show that the emergency order's description was \\\"so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.\\\" Fishing Vessel American Eagle v. State, 620 P.2d at 665 (emphasis added).\\nIn order to carry this burden, Martushev was obliged \\\"to prove, in addition to showing [that] information concerning the law was not made reasonably available, that he made reasonable efforts to act lawfully and that he subjectively did not know that his conduct was criminal and believed that there was 'no risk of criminality.' \\\" Shetters v. State, 832 P.2d 181, 183 (Alaska App.1992).\\nIn Shetters, the defendant contended that the local option statute allowing communities to prohibit the importation of alcohol violated constitutional due process because neither the statute nor any published law or regulation gave notice of the specific communities that had prohibited such importation. We rejected this challenge, noting that Shetters had not established that he had made reasonable inquiries into whether his conduct was permitted or that he had actually believed his conduct was legal. Id.\\nIn this case, Martushev has not shown that the latitude of Collier's Dock was unpublished, that he made reasonable efforts to learn the latitude of Collier's Dock, or that he subjectively and reasonably believed there was no risk that he was north of it. To prevail on his motion for dismissal, the burden was on Martushev to establish these facts, not on the state to rule them out.\\nPlacing the burden on Martushev to substantiate his claim of vagueness is particularly appropriate in light of the nature of the emergency order that he challenges. The need for clarity in a statutory or regulatory provision is greatest when the provision is one that restricts activities in which a broad range of citizens would ordinarily engage. Optimal clarity is necessary in the case of such a provision, since the risk of innocent citizens committing unintentional violations is particularly high. Emergency Order 2S-09-90, however, did not address itself to a broad group of ordinary citizens, nor did it seek to restrict a generally permitted activity. To the contrary, the emergency order was directed at a limited group of persons participating in the commercial fishing industry, and it authorized a limited scope of commercial fishing activity that would otherwise have been prohibited.\\nAt least two factors diminish the need for concern with optimal clarity under these circumstances. First, given the commercial and closely regulated nature of the activity that the challenged emergency order deals with \\u2014 commercial fishing \\u2014 participants in the activity can properly be held to a higher standard of compliance than might be appropriate for ordinary citizens. Second, the very act of taking advantage of permission \\u2014 limited in time and place \\u2014 to engage in otherwise forbidden activity carries with it a commensurate duty to make reasonable efforts to determine the effective scope of the permission.\\nIn the present case, it would have been palpably unreasonable for Martushev, a commercial fisherman, to assume that the emergency order's failure to specify a precise latitude for Collier's Dock left him free to drop his nets anywhere he chose. Cf. State v. Eluska, 724 P.2d 514, 515 (Alaska 1986) (given general statutory provision prohibiting all hunting unless expressly authorized, agency's failure to promulgate appropriate subsistence regulations did not permit unregulated subsistence hunting). Absent affirmative proof that he did not know and could not have learned, through reasonable inquiry, the location of Collier's Dock, Martushev should not have been allowed to prevail on his vagueness claim. We conclude that the district court erred in dismissing Martushev's case without requiring such a showing.\\nWe REVERSE the order of dismissal and REMAND the case for further proceedings consistent with this opinion.\\n. The state had elected to seek strict liability commercial fishing penalties under AS 16.05.-722 and 5 AAC 39.002.\\n. The state also has the right to appeal a sentence as too lenient; this limited appellate right, however, is not germane here.\\n. In contrast, the supreme court in Casey v. State, 509 P.2d 285, 286 & n. 2 (Alaska 1973), noted that a statute prohibiting possession of a drug having \\\"similar physiological effects\\\" to the drugs listed in the statute might be unconstitutionally vague for lack of notice but did not reach that issue, holding instead that there was no evidence at trial that defendant's drug did in fact have \\\"similar physiological effects\\\" to the listed drugs and reversing the conviction on that basis.\\n. Wacek v. State, 530 P.2d 751 (Alaska 1975) (per curiam), provides a useful contrast to the present case. In Wacek, the supreme court reversed the defendant's conviction for discharging a firearm in a public park based on facts stipulated by the parties: that no signs marked the boundaries of the park, that no information either published or provided to hunters showed the location or even mentioned the existence of the park, and that the defendant had promptly sought a trooper and reported the shooting when a passer-by informed him the area was closed. The court held that, \\\"given all the facts stipulated,\\\" it had \\\"no difficulty\\\" in concluding that the state had given inadequate notice of the boundaries of' the area in which discharging a firearm was prohibited. Id. at 753 & n. 2. The parties had essentially stipulated that an objectively reasonable defendant could not have been expected to know the location where conduct was illegal and that the particular defendant had acted in subjective good faith. Martushev has not established any similar facts in this case.\"}"
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+"{\"id\": \"12120359\", \"name\": \"Algis P. MORKUNAS, Appellant, v. ANCHORAGE TELEPHONE UTILITY, Appellee\", \"name_abbreviation\": \"Morkunas v. Anchorage Telephone Utility\", \"decision_date\": \"1988-05-06\", \"docket_number\": \"No. S-2217\", \"first_page\": \"1117\", \"last_page\": \"1120\", \"citations\": \"754 P.2d 1117\", \"volume\": \"754\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T19:17:18.599369+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before MATTHEWS, C.J., and RABINO WITZ, BURKE, COMPTON and MOORE, JJ.\", \"parties\": \"Algis P. MORKUNAS, Appellant, v. ANCHORAGE TELEPHONE UTILITY, Appellee.\", \"head_matter\": \"Algis P. MORKUNAS, Appellant, v. ANCHORAGE TELEPHONE UTILITY, Appellee.\\nNo. S-2217.\\nSupreme Court of Alaska.\\nMay 6, 1988.\\nBradley D. Owens and Constance E. Livsey, Jermain, Dunnagan & Owens, Anchorage, for appellant.\\nJulie Garfield, Asst. Mun. Atty. and Jerry Wertzbaugher, Mun. Atty., Anchorage, for appellee.\\nBefore MATTHEWS, C.J., and RABINO WITZ, BURKE, COMPTON and MOORE, JJ.\", \"word_count\": \"1754\", \"char_count\": \"11260\", \"text\": \"OPINION\\nCOMPTON, Justice.\\nThis appeal raises the question whether an Anchorage Telephone Utility (ATU) employee demoted from an executive position to a partially exempt classified position was entitled to pre-demotion notice of the imposition of a probationary period.\\nI. FACTUAL AND PROCEDURAL BACKGROUND\\nAlgis Morkunas was an employee of ATU. From the time he was hired in September 1980 until November 8, 1984, Mor-kunas was an \\\"executive employee.\\\" On November 8, Morkunas was given a choice between dismissal and demotion to a \\\"partially exempt\\\" position at the same pay. Morkunas chose demotion and worked as a partially exempt employee from November 9 until he was summarily terminated on March 8.\\nThe precise question raised is whether ATU's failure to provide Morkunas advance notice of the imposition of a probationary period as a condition of demotion prevents ATU from imposing probation. No terms and conditions were explicitly imposed on the written demotion memorandum given Morkunas on November 8. A personnel action form reflecting the demotion and including a six-month probationary period was prepared and sent to Morkunas in early December. Morkunas denies receiving the form; he claims that he first learned of his purported probationary status when his employment was terminated. ATU contends that Morkunas had actual notice of his status before then. Thus, whether and when Morkunas actually knew he was on probation are disputed facts. However, the parties agree that ATU did not provide Morkunas with pre-demotion written notice that a probationary period was to be served.\\nMorkunas sued ATU for wrongful termination, alleging four causes of action: breach of contract, deprivation of due process, reckless deprivation of due process, and breach of the duty of good faith and fair dealing. Judge Douglas J. Serdahely granted partial summary judgment, ruling that Morkunas was a permanent employee; therefore, the summary termination was unlawful and Morkunas was entitled to reinstatement to the partially exempt position. Judge Serdahely then ordered the case reassigned to a \\\"fast track\\\" judge for trial on the remaining issues.\\nThe case was assigned to Judge Peter A. Michalski, who sua sponte ordered re-argument of the issues decided by Judge Ser-dahely. Judge Michalski vacated Judge Serdahely's order, ruled that Morkunas was a probationary employee when he was terminated, and entered partial summary judgment for ATU on three of Morkunas' causes of action. The case was reassigned to Judge J. Justin Ripley, who signed a Civil Rule 54(b) final judgment. Morku-nas appeals.\\nII. THE NOTICE REQUIREMENT\\nMorkunas argues that he was not subject to a probationary period because he was not informed in writing prior to his demotion that he would be placed on probationary status. ATU contends that Morku-nas was not entitled to pre-demotion notice.\\nThe personnel rules governing municipal employees are codified at Anchorage Municipal Code (AMC) 3.30.005-.198. Rules directed exclusively at executive employees are found in Rule 17, AMC 3.30.171-.177. An executive employee serves at the pleasure of the mayor and may be demoted without right of grievance or appeal. An executive employee is not protected by any other personnel rule except as specifically provided.\\nRule 7, AMC 3.30.071-.074, governs probationary periods. Different sections of the rule apply to new and current employees. An appointment to a position in th\\u00e9 classified service is on a probationary basis, except for certain kinds of demotions. When a current employee is demoted, the employee is entitled to prior written notice of any probationary period to be served. An employee may be summarily terminated during the probationary period. A probationary employee is entitled to permanent appointment in the classified service only upon completing the probationary period.\\nMorkunas relies on AMC 3.30.073(D) and concludes that he was entitled to written pre-demotion notice of his probationary status. Under a literal interpretation of the rule he is correct, because he was demoted to a position in which he had never held permanent status.\\nMorkunas' interpretation also furthers the statutory purpose of informing employees of their rights and benefits. AMC 3.30.011(G). A written notice informs an employee of the status the employee will occupy after demotion. Otherwise, management could demote a permanent employee and then terminate him, using summary procedures applicable to probationary employees. In Morkunas' case, had he known of ATU's intent to impose probation, he could have requested a waiver from the the Manager of Personnel, opted for outright dismissal, or settle for probationary status. In any event, his choice would be an informed one. Importantly, this interpretation does not infringe on the mayor's prerogatives under Rule 17.\\nIn the instant case, Morkunas was an executive employee subject to demotion or termination without right of grievance or appeal. Morkunas served at the pleasure of the mayor; he was deprived of no right associated with permanent employment status as a result of this demotion and placement on probationary status. Thus, we conclude that ATU may prevail if it substantially complied with the notice requirement. We cannot determine whether ATU substantially complied as a matter of law, because the evidence presents genuine issues of material fact on the question whether Morkunas had actual notice of the probationary period prior to his demotion.\\nREVERSED and REMANDED.\\n. At the time of demotion, Morkunas received a memorandum which stated in full:\\nEffective November 9, 1984, Mr. A1 Morkunas has been appointed to Large Business and PBX Systems Supervisor.\\n. Only the duty of good faith and fair dealing claim remains to be tried.\\n.The record contains no reason for Judge Rip-leys grant of final judgment at this point in the proceeding when an issue remained before the trial court which could moot this appeal. Neither party raised this issue and we need not address it sua sponte. However, we note that Rule 54 judgments should normally be accompanied by reasons for their entry.\\n. This appeal raises a question of statutory interpretation. Therefore, we may substitute our judgment for that of the superior court. Wien Air Alaska v. State, Dep't of Revenue, 647 P.2d 1087, 1090 (Alaska 1982); Hood. v. State, Workmen's Compensation Bd., 574 P.2d 811, 813 (Alaska 1978).\\n. The municipal personnel rules have been substantially revised since the acts giving rise to this lawsuit. We interpret the rules in effect on the date of demotion.\\n. AMC 3.30.176 provides:\\nEmployees occupying an executive position are appointed by the mayor, or his designee, and serve at his pleasure. As such, he may dismiss, demote or suspend, without prejudice, any employee occupying an executive position whose performance does not meet required standards, without right of grievance or appeal. The reason for such action will be provided in writing and a copy placed in the employee's personnel file. If the action was due to race, religion, sex or any other reason prohibited by law, the right to appeal exists.\\nMorkunas does not argue that his demotion was unlawful under the substantive standards set forth in this section.\\n. Former AMC 3.30.177 provided:\\nOnly the provisions of this section apply to the employment of executive employees by the municipality as prohibitions on acting otherwise than as provided. Wages, hours and all other terms and conditions of employment for executive employees shall be as determined by the mayor.\\n. Former AMC 3.30.072 provided in part:\\nAll appointments to positions in the classified service (including rehires and promotions) shall be made on a probationary basis except for certain kinds of reinstate-ments, re-employments, demotions and transfers and all temporary (including acting) appointments and assignments.\\n(Emphasis added). See also AMC 3.30.066(A).\\n. Former AMC 3.30.073(D) provided:\\nDemoted Employees. When an employee is demoted to a position in a class where he previously held permanent status, no probationary period shall be served, except in the case of demotion for disciplinary reasons. When an employee is demoted to a position in which he did not hold permanent status, the agency head shall decide whether a probationary period will be served, subject to approval of the director. The employee concerned shall be notified of the decision, in writing, before the demotion.\\n(Emphasis added).\\n. AMC 3.30.074(C) provides in part:\\nSeparation during the probationary period. If at any time during the probationary period, the agency head determines that the services of a new or rehired employee have been unsatisfactory, the employee may be separated from his position without right of hearing or appeal.\\n. AMC 3.30.074(A) provides in part:\\nPermanent appointment. Permanent appointment to a position in the classified service shall be made only upon satisfactory completion of the probationary period.... Unless action is taken by the agency head to separate or demote the employee or to request extension of the probationary period prior to the end of the probationary period, the appointment shall become permanent on the first working day following completion of the probationary period.\\n(Emphasis added).\\n.AMC 3.30.011 provides in part: Statement of purpose.\\nIt is the speci\\u00f1c intent of these rules to assist in accomplishment of the following objectives:\\nG. To inform employees of their rights, benefits and responsibilities.\\nThe meaning of a statutory provision is determined by its language construed in light of the whole instrument. Wien Air Alaska v. Arant, 592 P.2d 352, 356 (Alaska 1979). We will not construe a provision in a manner inconsistent with the legislative objective. Anchorage Municipal Employees Ass'n v. Municipality of Anchorage, 618 P.2d 575, 580 (Alaska 1980).\\n. AMC 3.30.176, supra note 6.\\n. \\\"[S]ubstantial compliance involves conduct which falls short of strict compliance with the statutory . requirements, but which affords . the same protection that strict compliance would offer.\\\" Jones v. Short, 696 P.2d 665, 667 n. 10 (Alaska 1985).\"}"
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+"{\"id\": \"1253880\", \"name\": \"MILLER v. ALASKA-CANADIAN OIL & COAL CO.\", \"name_abbreviation\": \"Miller v. Alaska-Canadian Oil & Coal Co.\", \"decision_date\": \"1911-12-23\", \"docket_number\": \"No. 535\", \"first_page\": \"439\", \"last_page\": \"446\", \"citations\": \"4 Alaska 439\", \"volume\": \"4\", \"reporter\": \"Alaska Reports\", \"court\": \"United States District Court for the District of Alaska\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T21:42:41.167675+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"MILLER v. ALASKA-CANADIAN OIL & COAL CO.\", \"head_matter\": \"MILLER v. ALASKA-CANADIAN OIL & COAL CO.\\n(Third Division. Valdez.\\nDecember 23, 1911.)\\nNo. 535.\\n1. Attachment (\\u00a7 105 ) \\u2014 Affidavit\\u2014Indebtedness.\\nThe statute in Alaska (Code Civ. Proc. \\u00a7 136) requires that a writ of attachment shall issue whenever the plaintiff \\u201cshall make an affidavit showing that the sum for which the attachment is asked is an actual, bona fide, existing debt. Held, the omission of the word \\u201cactual\\u201d in the affidavit is not fatal if the allegations and facts stated in the affidavit show that it is an \\u201cactual,\\u201d bona fide, existing debt, without repeating the exact words of the statute. i(\\n[Ed. Note.- \\u2014 For other cases, see Attachment, Cent. Dig. \\u00a7\\u00a7 276-279; Dec. Dig. \\u00a7 105. ]\\n2. Attachment (\\u00a7 119 ) \\u2014 Affidavit\\u2014Complaint.\\nThe complaint, in an attachment case, may be examined for the purpose of showing that the sum for which the attachment is asked is an \\u201cactual,\\u201d bona fide, existing debt, where the word \\u201cactual\\u201d is not used in the affidavit.\\n[Ed. Note. \\u2014 For other cases, see Attachment, Cent. Dig. \\u00a7 214; Dec. Dig. \\u00a7 119. ]\\n3. Attachment (\\u00a7 131 ) \\u2014 Bond.\\nA bond in attachment is sufficient when the penalty therein is for the same amount as that prayed for in the complaint. The costs and attorney\\u2019s fee are not fixed and certain, and may not be allowed. The bond need not coyer them, except in those cases where they are so fixed and certain that they may with exactness be included in the \\u201camount\\u201d for which the plaintiff demands judgment.\\n[Ed. Note. \\u2014 For other cases, see Attachment, Cent. Dig. \\u00a7\\u00a7 361-364; Dec. Dig. \\u00a7 131. ]\\n4. Attachment (\\u00a7 133 ) \\u2014 Sumtciency op Bond.\\nThe Alaska statute does not expressly require a sufficient surety before giving the right to the writ. To hold that a bond given by a sufficient surety is fatally defective because he has not made affidavit to being worth twice the amount of the penalty, while conceding that a bond would save the jurisdiction of the court if a worthless surety had sworn he was worth such amount, is to sacrifice substance to form.\\n[Ed. Note. \\u2014 For other cases, see Attachment, Cent. Dig. \\u00a7\\u00a7 371-376; Dec. Dig. \\u00a7 133. ]\\n5. Attachment (\\u00a7 232 ) \\u2014 Vacating\\u2014Statute\\u2014Libebal Construction.\\nThe statutes in Alaska in effect provide for a liberal construction of the attachment act, by enacting that, when there is \\u201cnot sufficient cause\\u201d for the attachment, \\u201cthe same shall be vacated.\\u201d This implies that the want of a \\u201csufficient cause\\u201d of attachment is the only thing to be considered fatal to the attachment proceeding; that in other particulars the law will be construed liberally. An irregularity, if curable, may be cured without failure of the proceeding.\\n[Ed. Note. \\u2014 For other cases, see Attachment, Cent. Dig. \\u00a7\\u00a7 796, 797, 803; Dec. Dig. \\u00a7 232. ]\\nThe defendant has specially appeared in this case and moves to vacate the order for the publication of summons and to quash the summons published thereunder.\\nBy the complaint, the attachment affidavit, the marshal\\u2019s return upon the summons, and affidavit for the publication of summons, it appears that the defendant is a foreign corporation, ow-ning property and doing business in this judicial division of the territory of Alaska, and that the defendant is indebted to the plaintiff upon express contracts; that the defendant has no agent herein upon whom service can be had; that the marshal has made a return of summons showing that he was unable to make service, upon diligent search being unable to find any officer or representative of the defendant in the district of Alaska.\\nEdmund Smith, of Valdez, and V. G. Frost, for plaintiff.\\nThomas R. Shepard, of Seattle, Wash., for defendant.\\nSee same topic & \\u00a7 number in Dec. & Am. Digs. Key No. Series & Rep\\u2019r Indexes\\nSee same topic & \\u00a7 number in Dec. & Am. Digs. Key No. Series & Rep\\u2019r Indexes\", \"word_count\": \"2789\", \"char_count\": \"16404\", \"text\": \"CUSHMAN, District Judge.'\\nDefendant's motion to vacate and quash is made upon the ground that, at the time of making the order of publication, the court had not acquired jurisdiction of the person of the defendant or any property by lawful attachment; defendant's contention being that, as under the controlling rule laid down in Pennoyer v. Neff, 95 U. S. 714, 24 L. Ed. 565, it is not enough to confer jurisdiction, in a suit in personam, to set out that the defendant owns property in the jurisdiction, but that the property must be further subjected to the jurisdiction of the court by attachment, such attachment must be one entirely regular or the jurisdiction fails. The contention is that in the case at bar the attachment proceedings are void because the attachment affidavit and bond are defective.\\nThe statute provides (Carter's Codes, pt. 4, \\u00a7 136) that:\\n\\\"A writ of attachment shall be issued whenever the plaintiff or shall make and file an affidavit showing *' that the sum for which the attachment is asked is an actual, bona fide, existing debt. \\\"\\nThe affidavit for attachment here states:\\n\\\"That the defendant in said action is indebted to the plaintiff for work and labor performed by plaintiff for defendant and for moneys advanced and paid by plaintiff for defendant, at its special instance and request. That the sum for which this attachment is asked is a bona fide existing debt.\\\"\\nThe defendant contends that the omission of the statutory word \\\"actual\\\" is fatal. It is argued that the debt might be contingent; that this must be negatived; and that it could only be negatived by employing the statutory words \\\"actual debt.\\\" If the statutory words used, \\\"bona fide and existing debt,\\\" do not include in their scope all shades of meaning of which the word \\\"actual\\\" is capable when used in this connection, the affidavit shows the debt to be \\\"actual\\\" by setting out that the defendant is indebted to the plaintiff in the amount claimed \\\"for work and labor performed by plaintiff for defendant and moneys advanced and paid by plaintiff for defendant at its special instance and request.\\\"\\nThe affidavit for attachment and the complaint in the action were both verified by the plaintiff on the same day and filed on the same day. The allegations of the complaint may therefore be considered. \\u2022\\nIn the complaint the work alleged to have been performed and the money advanced defendant is still more fully described and itemized, fully and fairly \\\"showing\\\" the sum for which the attachment is asked to be an actual debt, if defendant's allegations are true.\\nDefendant further contends that the attachment was unauthorized because the penalty named in the attachment bond was for $2,104, the sum prayed for in the complaint; that it falls short of the statutory requirement, as no further amount is included to cover costs and attorney's fees asked for in the complaint.\\nThe statute (Carter's Codes, pt. 4, \\u00a7 137) provides that the undertaking shall be \\\"in a sum not less than Pne hundred dollars, and equal to the amount for which the plaintiff demands judgment.\\\"\\nThe fact that the bond must be accepted by the clerk, an officer not learned in the law, that the sureties are required to justify in an amount certain, that the minimum provided ($100) is a fixed amount, clearly shows that the terms and maximum penalty of the bond have reference to a fixed and certain amount. This amount is to be equal to the amount for which plaintiff demands judgment. Clearly this can only refer to the fixed amount for which recovery is prayed, for nothing else is certain, neither attorney fees nor other costs. It is altogther uncertain whether any will be allowed, and, if so, what.\\nThough recovery is asked on account of these, prior to allowance and ascertainment the claim in general terms for an attorney fee and costs cannot be termed for an \\\"amount,\\\" because they are uncertain. In cases where interest claimed is held to be included in the \\\"amount in controversy,\\\" it is because it is capable of being rendered certain by calculation. See Words and Phrases, vol. 1, title \\\"Amount.\\\" Were this otherwise, the only effect would be to limit the claim or lien against the property to the amount of the penalty in the bond; to that amount the attachment would be good in any event.\\nThe defendant next contends that the attachment proceedings were void because of the failure of the affidavit of the surety on the attachment bond to comply with the statute. It it provided by Carter's Codes, pt. 4, \\u00a7 136, that:\\n\\\"A writ of attachment shall he issued by the elerh of the court in which the action is pending, whenever the plaintiff or any one in his behalf shall make and file an affidavit showing,\\\" etc.\\nSection 137 provides:\\n\\\"Upon filing the affidavit with the clerk, the plaintiff shall be entitled to have the writ issued as soon thereafter as he shall file with the clerk his undertaking, with one or more sureties, in a sum not less than one hundred dollars, and equal to the amount for which the plaintiff demands Judgment, and to the effect that the plaintiff will pay all costs that may be adjudged to the defendant, and all damages that he may sustain by reason of the attachment, if the same be wrongful or without sufficient cause, not exceeding the sum specified in the undertaking. With the undertaking the plaintiff shall also file the affidavits of the sureties, from which affidavits it must appear that such sureties are qualified and that taken together they are worth double the amount of the sum specified in the \\u2022 undertaking, over all debts and liabilities and property exempt from execution. No person not qualified to become bail upon an arrest is qualified to become surety in an undertaking for an attachment.\\\"\\nThe affidavit to the attachment bond in this case is as follows :\\n\\\"Jack Smith, whose name is subscribed to the above undertaking, being duly sworn, says: That he is a resident of Kayak precinct, territory of Alaska, and is worth the sum of twenty-one hundred and four dollars within the territory of Alaska, over and above all debts and liabilities, and exclusive of property exempt from execution ; that he is not a counselor, attorney at law, marshal, deputy marshal, commissioner, clerk of any court or other officer of any court.\\\"\\nIt dpes not appear by the affidavit that the surety is worth double the' sum specified in the undertaking, as provided by the above statute. No reason is assigned or occurs to the court to distinguish the sufficiency of this attachment proceeding on a motion of this character from that on a direct motion to discharge the attachment on the same grounds. If there is any difference, it would not make in defendant's favor, as the attack here is quasi collateral.\\nIt will be noted that the statute does not expressly make the filing of the affidavits of the sureties a prerequisite to the issuance or levy of the writ, for the provision is:\\n\\\"Upon filing the affidavit with the clerk, the plaintiff shall be entitled to have the writ issued as soon thereafter as he shall file with the clerk his undertaking. \\\"\\nThe express conditions imposed concerning the affidavit and bond are completed at the end of the first sentence of section 137, supra. The second sentence in that section provides for the filing of the sureties' justification. The language is mandatory, and it is not doubted that the court would compel compliance, but it does not follow that, for want of it in the first instance, the proceeding entirely fails.\\nAttachment being in derogation of the common law, the courts usually, in the absence of any statutory provision to the contrary, construe the statutes strictly in favor of those against whom the proceeding is employed, and exact of the plaintiff a strict compliance with all of the statutory requirements. 4 Cyc. p. 400.\\nThe proceeding by attachment is a favorite of the-Legislatures, and in a number of jurisdictions it is now expressly provided that the statutes shall not be strictly construed, and in other states the courts, having regard to the intention of the Legislatures, have adopted a more liberal construction, independently of express statutory provisions. Id. p. 401.\\nThere is no express provision in the chapter of the Alaska Code providing for attachment and the proceedings therefor forbidding a strict construction, but section 151, pt. 4, of Carter's Codes, provides:\\n\\\"The defendant may, at any time before judgment, except where the cause of attachment and the cause of action are the same, apply to the court or judge thereof where the action is pending, to discharge the attachment, in the manner and with the effect as provided in sections one hundred and twenty-one and one hundred and twenty-two for the discharge of a defendant from arrest.\\\"\\nSections 121 and 122 therein referred to provide:\\n\\\"Sec. 121. A defendant arrested may, at any time before judgment, apply on motion to the court or judge thereof in which the action is pending upon notice to the plaintiff to vacate the writ of arrest.\\n\\\"Sec. 122. If a motion be made upon affidavits or other proofs on the part of the defendant, but not otherwise, the plaintiff may oppose the same by affidavits or other proofs in addition to those upon which the writ was issued. If upon the hearing of such motion it shall satisfactorily appear that there was not sufficient cause to allow the writ, or that there is other good cause which would entitle him to be discharged on habeas corpus the same shall be vacated, or in case he has given bail the court may discharge the same or reduce the amount thereof on good cause shown.\\\"\\nThese statutes in effect provide for a liberal construction of the attachment act, by enacting that, when there is \\\"not sufficient cause\\\" for the attachment, \\\"the same shall be vacated.\\\" This implies that the want of a \\\"sufficient cause\\\" of attachment is the only thing to be considered fatal to the attachment proceeding; that in other particulars the law will be construed liberally. An irregularity, if curable, may be cured without the failure of the proceeding.\\nBut it is not necessary in this case to invoke this implied provision for a liberal construction of the act to uphold the court's jurisdiction, for section 151, supra, provides for the vacation of attachment proceedings, \\\"except where the cause of attachment and the cause of action are the same.\\\" The case before us falls within this exception. Section 135, pt. 4, Carter's Codes, provides that plaintiff may attach the defendant's property \\\"in an action upon a contract, express or implied, for the direct payment of money, and which is not secured by mortgage, lien, or pledge upon real or. personal property, or, if so secured, when such security has been rendered nugatory by the act of the defendant.\\\" Plaintiff's affidavit for attachment brings him squarely within this proviso, and the motion to discharge or vacate the attachment will not lie. Bank of Winnemucca v. Mullaney, 29 Or. 268, 45 Pac. 796; Anvil Gold Mng. Co. v. Hoxsie, 125 Fed. 724, 728, 60 C. C. A. 492; Schultz v. Levy, 33 Or. 373, 54 Pac. 184.\\nDefendant's counsel have referred the court to 4 Cyc. p. 537 (IV), and note 22. The text-of that work is based upon the ruling in the case of Tibbet v. Sue, 122 Cal. 206, 54 Pac. 741. In that case the affidavit failed to show that the sureties were householders or freeholders. The California statute ex-' pressly provided:\\n\\\"Before issuing the writ, the clerk must require a written undertaking with sufficient sureties. : \\\" Code Civ. Proe. \\u00a7 539.\\nAnother section provided that the officer taking the undertaking in any case must require the sureties to accompany it with an affidavit that they are \\\"each residents and householders or freeholders.\\\"\\nOur statute does not so expressly require a sufficient surety before giving the right to the writ. To hold that a bond given by a sufficient surety is fatally defective because he has not made affidavit to being worth twice the- amount of the penalty, while conceding that a bond would save the jurisdiction of the court if a worthless surety had sworn he was worth such amount, is to sacrifice substance to form.\\nAgain, the California statute provides:\\n\\\"If upon such application (to vacate) it satisfactorily appears that the writ of attachment was improperly or irregularly issued it will be discharged.\\\" Code Civ. Proc. \\u00a7 473.\\nThis shows a legislative intent that the statute shall be strictly construed, while the statute above quoted, controlling in this jurisdiction, is the opposite.\\nDefendant's motions are therefore denied.\"}"
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+"{\"id\": \"12566218\", \"name\": \"ALASKA ASSOCIATION OF NATUROPATHIC PHYSICIANS, Appellant, v. STATE of Alaska, DEPARTMENT OF COMMERCE, Community & Economic Development, Division of Corporations, Business & Professional Licensing, Appellee.\", \"name_abbreviation\": \"Alaska Ass'n of Naturopathic Physicians v. State\", \"decision_date\": \"2018-03-16\", \"docket_number\": \"Supreme Court No. S-16530\", \"first_page\": \"630\", \"last_page\": \"638\", \"citations\": \"414 P.3d 630\", \"volume\": \"414\", \"reporter\": \"Pacific Reporter 3d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-27T21:03:47.220952+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and Carney, Justices.\", \"parties\": \"ALASKA ASSOCIATION OF NATUROPATHIC PHYSICIANS, Appellant,\\nv.\\nSTATE of Alaska, DEPARTMENT OF COMMERCE, Community & Economic Development, Division of Corporations, Business & Professional Licensing, Appellee.\", \"head_matter\": \"ALASKA ASSOCIATION OF NATUROPATHIC PHYSICIANS, Appellant,\\nv.\\nSTATE of Alaska, DEPARTMENT OF COMMERCE, Community & Economic Development, Division of Corporations, Business & Professional Licensing, Appellee.\\nSupreme Court No. S-16530\\nSupreme Court of Alaska.\\nMarch 16, 2018\\nJoe P. Josephson, Josephson Law Offices, LLC, Anchorage, for Appellant.\\nRobert C. Auth, Assistant Attorney General, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for Appellee.\\nBefore: Stowers, Chief Justice, Winfree, Maassen, Bolger, and Carney, Justices.\", \"word_count\": \"4364\", \"char_count\": \"29834\", \"text\": \"BOLGER, Justice.\\nI. INTRODUCTION\\nAn association representing naturopathic physicians challenges a new regulation that effectively forbids naturopaths from using and prescribing injectable vitamins and minerals. The association argues that the statutory definition of naturopathy includes the use of dietetics, that dietetics include injectable vitamins and minerals obtained by pharmaceutical prescription, and that the statutory restrictions on the practice of naturopathy prohibit the use of only prescription drugs , not all prescription medicines . But we conclude that the statutory text, the larger statutory context, and the legislative history together suggest that the legislature did not intend to grant prescriptive authority to naturopaths. We therefore affirm the superior court's decision to grant summary judgment against the association on this issue.\\nII. FACTS AND PROCEEDINGS\\nA. Regulatory Backdrop\\nNaturopathy is a method of treating disease \\\"that avoids drugs and surgery and emphasizes the use of natural agents (such as air, water, and herbs) and physical means (such as tissue manipulation and electrotherapy ).\\\" Alaska first established a licensing structure for naturopaths in 1986, codified at AS 08.45. This statute defines the practice of naturopathy, provides requirements for obtaining and maintaining a naturopathy license, and establishes restrictions on the practice of naturopathy. It defines naturopathy to include a range of practices: \\\"hydrotherapy, dietetics, electrotherapy, sanitation, suggestion, [and] mechanical and manual manipulation for the stimulation of physiological and psychological action to establish a normal condition of mind and body.\\\" And it defines dietetics to \\\"include[ ] herbal and homeopathic remedies.\\\" The statute forbids naturopaths from engaging in three types of conduct: \\\"A person who practices naturopathy may not (1) give, prescribe, or recommend in the practice (A) a prescription drug; (B) a controlled substance; (C) a poison; (2) engage in surgery; (3) use the word 'physician' in the person's title.\\\"\\nIn 1992 the State conferred authority to promulgate regulations implementing AS 08.45 on the Department of Commerce, Community, and Economic Development. The Department adopted regulations implementing the naturopathy statute in 1994. Among those regulations were definitions of some of the key statutory terms:\\n(1) \\\"dietetics\\\" includes the use of nutritional therapies, nutritional counseling, nutritional substances, vitamins, minerals, and supplements to promote health and to diagnose, treat, and prevent disease, illness, and conditions;\\n.\\n(3) \\\"herbal remedy\\\" includes medicines derived from or a concentrate or extract of a plant, tree, root, moss, fungus, or other natural substance; \\\"herbal remedy\\\" does not include a controlled substance;\\n.\\n(8) \\\"prescription drug\\\" includes a controlled substance or other medicine commonly requiring a written prescription from a physician licensed under AS 08.64; \\\"prescription drug\\\" does not include a device or herbal or homeopathic remedy or dietetic substance in a form that is not a controlled substance[ ]\\nIn the ensuing years, naturopaths and the Department developed conflicting interpretations of these regulatory definitions. Naturopaths distinguished prescription drugs, which they acknowledged they were not permitted to prescribe or administer, from non-drug prescription medicines, which they interpreted the statute as permitting them to prescribe or administer. Accordingly, Alaska naturopaths routinely administered or prescribed dietetics requiring a prescription, such as injectable vitamins and minerals (e.g., a Vitamin B-12 shot or a magnesium shot). In contrast, the Department interpreted the regulation to prohibit naturopaths from administering and prescribing all medicines requiring a prescription, even if the prescription medicine was also a dietetic. These clashing interpretations resulted in some pharmacists refusing to fill prescriptions for naturopaths and the State launching investigations of naturopaths who used prescription medicines and the pharmacists who filled the prescriptions.\\nIn 2012 the Department issued a notice of proposed changes to the regulatory definitions that would clarify naturopaths' prescriptive authority. After the public comment period closed, the Department amended the definitions in two ways to effectively bar naturopaths from using or prescribing any medicine that requires a prescription, including dietetics (injectable vitamins and minerals), herbal, and homeopathic remedies. First, the new regulation broadened the definition of prescription drug so that it encompassed any medicine requiring a prescription and no longer excluded dietetics, herbal, and homeopathic remedies: \\\" '[P]rescription drug' means a controlled substance or other medicine requiring a prescription from a physician licensed under AS 08.64 or from another health care professional authorized to issue prescriptions by the law of this state.\\\" Second, the new regulation explicitly excluded prescription drugs from the definitions of dietetics, herbal remedy, and homeopathic remedy:\\n(1) \\\"dietetics\\\"\\n(A) includes the use of nutritional therapies, nutritional counseling, nutritional substances, vitamins, minerals, and supplements to promote health and to diagnose, treat, and prevent disease, illness, and conditions;\\n(B) does not include the use of a prescription drug, poison, or controlled substance;\\n.\\n(3) \\\"herbal remedy\\\"\\n(A) includes medicines derived from or a concentrate or extract of a plant, tree, root, moss, fungus, or other natural substance;\\n(B) does not include a prescription drug, poison, or controlled substance;\\n(4) \\\"homeopathic remedy\\\" means a remedy defined in the Homeopathic Pharmacopoeia of the United States Abstracts 1993 , revised as of December 1992 and adopted by reference except for prescription drug, poison, or controlled substance[.][ ]\\nThese new definitions went into effect in January 2014.\\nB. Proceedings\\nIn May 2014 the Alaska Association of Naturopathic Physicians filed a declaratory judgment action, seeking a declaration that the new regulation was invalid to the extent it was inconsistent with AS 08.45. Specifically, the Association alleged that the new regulation unduly expanded the statutory prohibition on prescription drugs to include all prescription medicines. It also claimed that the new regulation, which effectively prohibited the use of prescription dietetics, was contrary to the statutory definition of naturopathy, which conferred on naturopaths the unqualified right to use dietetics. Moreover, it urged that the new regulation contravened the longstanding practice and training of naturopaths in Alaska and prevented them from practicing in a manner consistent with their training, experience, and expertise.\\nIn January 2016 the Department filed a motion to dismiss, which the superior court later converted to a motion for summary judgment. After hearing oral argument and receiving supplemental briefing from the Association, the superior court granted the Department's motion. The Department then moved for 20% of its actual attorney's fees under Alaska Civil Rule 82. The Association opposed the motion on the basis that it was a public interest litigant exempt from an adverse attorney's fees award. The superior court rejected this contention, concluding that the Association did not qualify as a public interest litigant because it had sufficient economic incentive to bring the suit. After concluding that the Department's fee request was reasonable, the superior court awarded it $16,844 in fees, 20% of its total fees incurred.\\nThe Association appeals both the grant of summary judgment in favor of the Department and the attorney's fees award.\\nIII. STANDARDS OF REVIEW\\nA regulation's consistency with its enabling statute \\\"is a question of law to which we apply the appropriate standard of review based on the level of agency expertise involved.\\\" Here, the parties agree that the new regulatory definitions do not implicate the Department's expertise, so we review them using the substitution of judgment standard. Under this standard we exercise our independent judgment, substituting our \\\"own judgment for that of the agency even if the agency's [interpretation] ha[s] a reasonable basis in law.\\\" We will \\\"adopt the rule of law that is most persuasive in light of precedent, reason, and policy, but in doing so we give due deliberative weight 'to what the agency has done, especially where the agency interpretation is longstanding' \\\" and continuous.\\nWe generally review an attorney's fees award for abuse of discretion, which exists when an award is \\\"arbitrary, capricious, manifestly unreasonable, or the result of an improper motive.\\\" Interpretation of the scope of the exception to attorney's fees awards for constitutional claimants is a question of law reviewed de novo.\\nIV. DISCUSSION\\nA. The New Regulation, 12 AAC 42.990, Is Consistent With AS 08.45.\\nThe Association argues that the new regulatory definitions governing naturopaths, codified at 12 AAC 42.990, are inconsistent with the definition of naturopathy and the restrictions on naturopaths outlined in the naturopathy statute, AS 08.45. We have not previously interpreted the scope of naturopaths' prescribing authority under AS 08.45. When determining a statute's meaning, we consider three factors: \\\"the language of the statute, the legislative history, and the legislative purpose behind the statute.\\\" \\\"We decide questions of statutory interpretation on a sliding scale\\\" : \\\"[T]he plainer the language of the statute, the more convincing any contrary legislative history must be . to overcome the statute's plain meaning.\\\" Moreover, \\\"[a] party challenging a regulation bears the burden of showing that adoption of the regulation is inconsistent with the . statute.\\\"\\nThe Association argues that the new regulation is inconsistent with the statute's ban on naturopaths using and prescribing prescription drugs because it prohibits naturopaths from using and prescribing all prescription \\\"medicine,\\\" not just prescription drugs . The statute, in a section entitled \\\"Restrictions on practice of naturopathy,\\\" states that naturopaths may not \\\"give, prescribe, or recommend . a prescription drug.\\\" The new regulation defines \\\"prescription drug\\\" as \\\"a controlled substance or other medicine requiring a prescription from a physician licensed under AS 08.64 or from another health care professional authorized to issue prescriptions by the law of this state.\\\" Unlike the old regulation, it does not exclude \\\"herbal or homeopathic remed[ies]\\\" and \\\"dietetic substance[s]\\\" from the definition. In other words, the new regulation categorically defines prescription drug to include any medicine requiring a prescription. But according to the Association, there is a real distinction between a prescription \\\"medicine\\\" and a prescription \\\"drug,\\\" with natural substances and their derivatives (such as injectable vitamins and minerals) falling in the former category but not the latter.\\n1. Statutory text and structure\\nThe text of the naturopathy statute does not provide, and the Association does not cite, any support for distinguishing between a prescription drug (which the Association concedes a naturopath is forbidden from prescribing) and prescription medicines composed of natural substances or their derivatives. As an initial matter, the statute does not define the term \\\"prescription drug\\\" or its constituent words. In the absence of a definition, we construe statutory terms according to their common meaning. Dictionaries \\\"provide a useful starting point for [determining]\\\" a phrase's common meaning. Black's Law Dictionary's definition of \\\"drug\\\" does not exclude natural substances or their derivatives. It defines \\\"drug\\\" as (1) \\\"[a] substance intended for use in the diagnosis, cure, treatment, or prevention of disease\\\" and (2) \\\"[a] natural or synthetic substance that alters one's perception or consciousness.\\\" This definition suggests that the common meaning of \\\"prescription drug\\\" does not exclude natural substances.\\nThe overall structure and substance of AS 08.45 also provide insight into the meaning of \\\"prescription drug,\\\" and they too provide no basis for distinguishing between prescription drugs and other prescription medicines composed of natural substances. The only mention of prescriptions or prescribing authority in AS 08.45 is to ban naturopaths from prescribing drugs; nowhere else does the naturopathy statute refer to prescribing authority or prescription substances. If the legislature's intention were to convey to naturopaths broad prescribing authority for non-drug prescription medicines, it would be odd for the statute to mention this authority only in the context of constraining it. Given that the only mention of naturopath prescribing authority is in the context of circumscribing it, the naturopath statute as a whole does not evince an intent to allow naturopath use of other prescription substances.\\nComparing the language of the naturopath statute to that of the licensing statutes governing healthcare professionals who unequivocally have prescribing authority also provides insight into the scope of the term \\\"prescription drug.\\\" In marked contrast to the naturopath statute, the statutes governing the licensing of doctors and osteopaths, dentists, veterinarians, registered nurses, and advanced nurse practitioners all explicitly define their respective practices to include some degree of prescribing authority. These statutes suggest that where the legislature intends to convey prescribing authority, it does so explicitly. The statutory definition of the practice of naturopathy conveys no such explicit prescribing authority, indicating that no such authority was intended to be conveyed.\\nThis conclusion is underscored by a 1985 attorney general opinion \\\"concerning persons who may initiate prescriptions.\\\" Although they are not controlling, we generally afford opinions of the Attorney General \\\"some deference.\\\" The opinion responds to a question from the Department querying whether healthcare boards had the authority to grant prescriptive authority to healthcare professionals via regulations. The opinion first notes that \\\"[t]he [statutory] definitions of what activities constitute a particular profession appear to be the best reference for determining who is authorized to issue a prescription.\\\" It concludes that for a healthcare board to grant prescriptive authority by regulation, the board \\\"must have a statutory basis for the action.\\\" Therefore, according to this Attorney General opinion, prescriptive authority must have a statutory basis in the definition of the practice. As discussed above, however, the definition of the practice of naturopathy provides no such statutory basis.\\nThe Association nonetheless contends that the legislature intended to convey to naturopaths prescribing authority for some non-drug substances by including \\\"dietetics\\\" in the statutory definition of \\\"naturopathy.\\\" It argues that because some dietetics, such as injectable vitamins and minerals, require a prescription, the inclusion of dietetics in the statutory definition of naturopathy evinces legislative intent to convey prescribing authority. However, we conclude that the inclusion of this term does not provide a statutory basis for prescriptive authority, especially when it is read in light of the more specific statutory prohibition on naturopath use of prescription drugs. First, as discussed above, in other statutes governing medical professions, the legislature conveyed prescriptive authority explicitly through the use of words such as \\\"prescription\\\" and \\\"prescribe.\\\" Therefore, when the legislature wishes to convey prescribing authority, it does so clearly and explicitly rather than opaquely. In addition, only a subset of dietetics require a prescription, meaning it is possible to use some dietetics without any prescriptive authority. It is thus possible to interpret the statute as not conveying prescriptive authority to naturopaths without rendering the inclusion of \\\"dietetics\\\" in the statutory definition a nullity.\\nThe Association's argument regarding the statutory definition additionally falters when considered against the backdrop of the naturopath statute as a whole. \\\"When a statute . is part of a larger framework or regulatory scheme, [it] must be interpreted in light of the other portions of the regulatory whole.\\\" Although various statutory sections should be harmonized when possible, more specific sections control over general sections. Here, the statutory definition of \\\"naturopathy\\\" appears in a general section: the definitions section that applies to the entirety of AS 08.45. In contrast, the statutory prohibition on prescription drugs appears in a specific, standalone section entitled \\\"Restrictions on practice of naturopathy.\\\" The inclusion of dietetics in the general statutory definition of naturopathy should be understood as being modified by the specific prohibition on naturopath use of prescription drugs. In other words, together, the two statutory sections provide that naturopaths can practice the methods listed in the definition of naturopathy to the extent those methods do not include prescription of drugs. This interpretation does not bring the two sections into conflict but merely recognizes that one specific section cabins a general term in the other.\\n2. Legislative history\\nThe legislative history of AS 08.45 only confirms the indication of the statutory text that naturopaths lack any prescribing authority. When the bill that was ultimately enacted as AS 08.45, Senate Bill (S.B.) 297, was initially introduced in 1985, it explicitly included some prescriptive authority for naturopaths. In a section entitled \\\"Scope of Naturopathic Practice,\\\" the bill provided that naturopaths could, among other things, \\\"write prescriptions for substances authorized by this chapter.\\\" The initial bill also included a section restricting the practice of naturopathy, but with a narrower ban on prescriptive authority: \\\"A naturopath may not . use drugs, except local anesthetics, minerals, and extracts, compounds or concentrates obtained from plants or animals.\\\" The initial bill thus provided a carve-out for drugs composed of natural substances and would have allowed naturopaths to use and prescribe injectable vitamins and minerals.\\nShortly after this initial bill was introduced, the Department of Health and Social Services submitted a position paper expressing reservations about certain aspects of the bill. The paper noted some \\\"controversy over the scientific basis of naturopathic medicine\\\" and expressed the agency's concern over allowing naturopaths to treat certain types of illnesses given the limits of the naturopathic approach. Although the agency concluded it was \\\"neutral on th[e] bill,\\\" it noted that other states placed more restrictive conditions on naturopaths by, for example, forbidding naturopaths from using drugs and from performing surgery.\\nAbout a year later, a sponsor substitute to S.B. 297 was introduced that omitted the section entitled \\\"Scope of Naturopathic Practice,\\\" thereby eliminating the original bill's affirmative grant of authority for naturopaths to write prescriptions. The sponsor substitute also amended the section restricting the practice of naturopathy to narrow the drugs that naturopaths were permitted to use and prescribe, still permitting the prescription of natural substances: \\\"[A] person who practices naturopathy may not . use in the practice or prescribe . a prescription drug other than a natural plant, animal, or mineral substance.\\\" But then the committee substitute for the sponsor substitute made the ban on using and prescribing prescription drugs entirely unconditional: \\\"A person who practices naturopathy may not . give, prescribe, or recommend in the practice . a prescription drug....\\\" It was this language that was enacted into law later that year, codified in AS 08.45.050.\\nThe path of this legislative history suggests that the legislature did not intend for the statute to convey any prescribing authority to naturopaths. The bill drafting process shows the legislature gradually winnowed the substances for which naturopaths could write prescriptions from some natural substances, to fewer natural substances, to an unconditional ban on prescription drugs. If the legislature wished to draw a distinction in the statute between prescription natural substances and prescription drugs, it would have retained the language of the initial bill, which drew this precise distinction. Further, the drafting process shows that the legislature stripped language from the bill that explicitly defined the scope of naturopath practice to include writing prescriptions. Given the removal of this language, it is unlikely that the legislature intended to nonetheless convey some prescriptive authority to naturopaths by including \\\"dietetics\\\" in the definition of \\\"naturopathy.\\\" Moreover, these changes were made against the backdrop of the Department of Health and Social Services expressing concern about the scope of naturopath prescribing authority. Thus the statute's legislative history provides additional evidence that the legislature did not intend to convey any prescriptive authority to naturopaths.\\nIn sum, neither the text nor overall structure of AS 08.45 indicates that it conveys to naturopaths the authority to prescribe natural substances, including injectable vitamins and minerals. This conclusion is further bolstered by comparing the naturopath statute to those statutes governing other professionals and by reviewing the legislative history of AS 08.45, which excised language that would have conveyed some degree of prescribing authority to naturopaths. The new regulation, which effectively prohibits naturopaths from using all prescription medicines, is therefore consistent with AS 08.45.\\nB. The Association Has Waived Its Challenge To The Attorney's Fees Award.\\nThe Association also seeks to challenge the superior court's attorney's fees award. It argues that it is exempt from attorney's fees under the public interest litigant exception. But this common law exception was abrogated by statute in 2003. The current version of the exception, as codified at AS 09.60.010(c), allows a constitutional claimant to avoid an adverse attorney's fees award under certain circumstances, but the Association did not rely on this statute in its response to the Department's motion for attorney's fees or in its original brief on appeal. And at oral argument, the Association conceded that its complaint did not raise any constitutional claims. We thus conclude that the Association has waived and abandoned any challenge to the attorney's fees award.\\nV. CONCLUSION\\nWe AFFIRM the superior court's judgment.\\nNaturopathy , Merriam-Webster , https://www.merriam-webster.com/dictionary/naturopathy (last visited Feb. 28, 2018).\\nCh. 56, SLA 1986.\\nSee generally AS 08.45.010 -.200.\\nAS 08.45.200(3).\\nId.\\nAS 08.45.050.\\nCh. 87, \\u00a7 3, SLA 1992; see AS 08.45.100.\\nFormer 12 Alaska Administrative Code (AAC) 42.990 (eff. 7/28/94).\\nApparently injectable vitamins and minerals require a prescription. In contrast, orally administered vitamins and minerals do not require a prescription. Injectable vitamins and minerals are used for patients who have difficulty absorbing orally administered vitamins and minerals, e.g., patients with an impaired stomach lining.\\n12 AAC 42.990 (2014).\\n12 AAC 42.990(8).\\n12 AAC 42.990.\\nThe Association \\\"is an incorporated, non-profit, professional association or organization representing licensed naturopathic doctors who practice their profession in Alaska.\\\" According to the Association, its membership is composed of naturopaths practicing in Alaska, totaling approximately 25 individuals.\\nSee Alaska R. Civ. P. 82(b)(2) (\\\"In cases [resolved without trial] in which the prevailing party recovers no money judgment, the court shall award the prevailing party . 20 percent of its actual attorney's fees which were necessarily incurred.\\\").\\nThe Association also appeals the denial of its own motion for summary judgment, which it had filed in June 2015. The Association does not present a separate argument concerning this denial, and our analysis below applies equally to it as to the superior court's grant of summary judgment in favor of the Department.\\nDavis Wright Tremaine LLP v. State, Dep't of Admin. , 324 P.3d 293, 299 (Alaska 2014).\\nId.\\nTesoro Alaska Petroleum Co. v. Kenai Pipe Line Co. , 746 P.2d 896, 903 (Alaska 1987).\\nHeller v. State, Dep't of Revenue , 314 P.3d 69, 73 (Alaska 2013) (quoting Chugach Elec. Ass'n v. Regulatory Comm'n of Alaska , 49 P.3d 246, 250 (Alaska 2002) ).\\nPremera Blue Cross v. State, Dep't of Commerce, Cmty. &Econ. Dev., Div. of Ins. , 171 P.3d 1110, 1119 (Alaska 2007). The parties disagree whether the Department's interpretation is due the additional deference accorded to longstanding and continuous interpretations. The Association urges it is not, noting that the new regulation became effective in 2014 and that it altered regulatory language that had been in effect for 20 years. The Department urges that additional deference is nonetheless warranted because the Department's interpretation has remained consistent, even though the regulatory text has changed. However, we need not resolve this dispute because the level of deference would not affect our interpretation of the statute in this case.\\nDeVilbiss v. Matanuska-Susitna Borough , 356 P.3d 290, 294 (Alaska 2015) (quoting Bachner Co. v. Weed , 315 P.3d 1184, 1189 (Alaska 2013) ).\\nAlaska Conservation Found. v. Pebble Ltd. P'ship , 350 P.3d 273, 279 (Alaska 2015).\\nOels v. Anchorage Police Dep't Emps. Ass'n , 279 P.3d 589, 595 (Alaska 2012) (quoting Shehata v. Salvation Army , 225 P.3d 1106, 1114 (Alaska 2010) ).\\nMarathon Oil Co. v. State, Dep't of Nat. Res. , 254 P.3d 1078, 1082 (Alaska 2011).\\nPeninsula Mktg. Ass'n v. State , 817 P.2d 917, 922 (Alaska 1991).\\nGrunert v. State , 109 P.3d 924, 937 (Alaska 2005).\\nAS 08.45.050(1)(A).\\n12 AAC 42.990(8).\\nFormer 12 AAC 42.990(8) (eff. 7/28/94).\\nAdamson v. Municipality of Anchorage , 333 P.3d 5, 16 (Alaska 2014).\\nAlaskans for Efficient Gov't, Inc. v. Knowles , 91 P.3d 273, 276 n.4 (Alaska 2004).\\nDrug , Black's Law Dictionary (10th ed. 2014).\\nAS 08.64.380(6)(A) (defining the \\\"practice of medicine\\\" and the \\\"practice of osteopathy\\\" to include \\\"prescrib[ing] for . any human ailment, blemish, deformity, disease, disfigurement, disorder, injury, or other mental or physical condition\\\").\\nAS 08.36.360(2) (defining the \\\"practice of dentistry\\\" to include \\\"prescrib[ing] for a disease, lesion, pain, injury, deficiency, deformity, or physical condition, malocclusion or malposition of the human teeth\\\").\\nAS 08.98.250(5)(A)(i) (defining the \\\"practice of veterinary medicine\\\" to include \\\"prescription . of a drug, biologic apparatus, anesthetic, or other therapeutic or diagnostic substance\\\").\\nAS 08.68.850(11)(F) (defining the \\\"practice of registered nursing\\\" to include \\\"the prescription of medical therapeutic or corrective measures under regulations adopted by the [Board of Nursing]\\\").\\nAS 08.68.850(9) (defining the \\\"practice of advanced practice registered nursing\\\" to include \\\"the prescription and dispensing of medical, therapeutic, or corrective measures under regulations adopted by the [Board of Nursing]\\\").\\n[1985] 1 Informal Op. Att'y Gen. 197.\\nState v. Dupier , 118 P.3d 1039, 1050 n.62 (Alaska 2005).\\n[1985] 1 Informal Op. Att'y Gen. 197.\\nId. at 199.\\nAlaska Airlines, Inc. v. Darrow , 403 P.3d 1116, 1127 (Alaska 2017) (quoting Millman v. State , 841 P.2d 190, 194 (Alaska App. 1992) ).\\nNelson v. Municipality of Anchorage , 267 P.3d 636, 642 (Alaska 2011).\\nAS 08.45.200.\\nAS 08.45.050.\\nS.B. 297, 14th Leg., 1st Sess. \\u00a7 2, at 4 (Apr. 23, 1985).\\nId. \\u00a7 2, at 5.\\nDep't of Health & Soc. Servs., Position Paper, S.B. 297 (Apr. 30, 1985).\\nId.\\nId.\\nSponsor Substitute for Senate Bill (S.S.S.B) 297, 14th Leg., 2d Sess. (Apr. 17, 1986).\\nId. \\u00a7 1, at 2.\\nCommittee Substitute for Sponsor Substitute for Senate Bill (C.S.S.S.S.B.) 297, 14th Leg., 2d Sess. \\u00a7 8, at 3 (1986).\\nCh. 56, \\u00a7 1, SLA 1986.\\nSee Miller v. Matanuska-Susitna Borough , 54 P.3d 285, 293 (Alaska 2002) (\\\" 'It is an abuse of discretion to award attorney's fees against an unsuccessful public interest plaintiff who raises a claim in good faith.' A four-part test determines public interest litigant status: (1) Is the case designed to effectuate strong public policies? (2) If the plaintiff succeeds, will numerous people receive benefits from the lawsuit? (3) Can only a private party have been expected to bring this suit? (4) Would the purported public interest litigant have sufficient economic incentive to file suit even if the action involves only narrow issues lacking general importance?\\\" (footnote omitted) (quoting Carr-Gottstein Props. v. State , 899 P.2d 136, 147 (Alaska 1995) ) ), superseded by statute , ch. 86, SLA 2003, as recognized in Krone v. State, Dep't of Health & Soc. Servs. , 222 P.3d 250, 258 (Alaska 2009).\\nAlaska Conservation Found. v. Pebble Ltd. P'ship , 350 P.3d 273, 280 (Alaska 2015).\"}"
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+"{\"id\": \"12569714\", \"name\": \"STATE of Alaska, Petitioner, v. Lowell James THOMPSON IV, Respondent.\", \"name_abbreviation\": \"State v. Thompson\", \"decision_date\": \"2018-04-20\", \"docket_number\": \"Court of Appeals No. A-12764\", \"first_page\": \"166\", \"last_page\": \"172\", \"citations\": \"425 P.3d 166\", \"volume\": \"425\", \"reporter\": \"Pacific Reporter 3d\", \"court\": \"Court of Appeals of Alaska\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-27T21:04:00.673698+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"\", \"parties\": \"STATE of Alaska, Petitioner,\\nv.\\nLowell James THOMPSON IV, Respondent.\", \"head_matter\": \"STATE of Alaska, Petitioner,\\nv.\\nLowell James THOMPSON IV, Respondent.\\nCourt of Appeals No. A-12764\\nCourt of Appeals of Alaska.\\nApril 20, 2018\\nAnn B. Black, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Petitioner.\\nLars Johnson, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Respondent.\\nBefore: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge.\\nSitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).\", \"word_count\": \"3283\", \"char_count\": \"20981\", \"text\": \"Judge MANNHEIMER.\\nIn 2015, the Alaska Legislature amended AS 12.55.027(d) to give trial courts the authority to grant credit against a sentence of imprisonment for time that the defendant spent on electronic monitoring as a condition of bail release, provided that certain statutory requirements are met. One of these requirements is that the person \\\"has not committed a criminal offense while under electronic monitoring.\\\"\\nIn this case, we are required to decide a question relating to criminal defendants who violated a condition of their bail release while on electronic monitoring between July 12, 2016 and November 27, 2017. Did a violation of bail conditions during this 16-month period constitute a \\\"criminal offense\\\"-thus disqualifying the defendant from receiving credit toward their sentence under AS 12.55.027(d) for the time they spent on electronic monitoring?\\nThe significance of these two dates-July 12, 2016 and November 27, 2017-lies in the fact that, during the past two years, the Alaska Legislature has twice amended AS 11.56.757, the statute that forbids a person from violating the conditions of their bail release.\\nBefore July 12, 2016, Alaska law clearly stated that it was a crime to violate the conditions of one's bail release. The pre-July 2016 version of AS 11.56.757(b) declared that a person who violated a condition of their bail release was guilty of a class A misdemeanor if they were released on a felony charge, or guilty of a class B misdemeanor if they were released on a misdemeanor charge.\\nBut the legislature amended AS 11.56.757 effective July 12, 2016. Under this amended version of the statute, a person who violated a condition of their bail release was guilty only of \\\"a violation punishable by a fine of up to $1,000\\\".\\nThis was a significant change because, under the Alaska Criminal Code, the term \\\"violation\\\" has a specialized meaning: it is \\\"a noncriminal offense punishable only by a fine\\\", and \\\"conviction of a violation does not give rise to any disability or legal disadvantage based on conviction of a crime\\\". AS 11.81.900(b)(65).\\nThen, in late 2017, the legislature amended AS 11.56.757 again. Under the current version of this statute, which took effect on November 27, 2017, violating one's conditions of bail release is again a crime-a class B misdemeanor.\\nThe question presented in this case is whether, during this interim period of approximately 16 months, a violation of one's conditions of release stopped being a \\\"criminal offense\\\"-so that defendants on electronic monitoring who violated their conditions of bail release in non-criminal ways did not forfeit the credit they had accrued toward their sentence under AS 12.55.027(d).\\nAs we explain in this opinion, we conclude that, during this 16-month period, defendants who violated their conditions of bail release in a non-criminal way (i.e. , other than by committing a new crime) did not \\\"commit a criminal offense\\\" for purposes of AS 12.55.027(d) -and, thus, the defendant's violation of their conditions of release did not disqualify them from getting credit against their sentence for the time they spent on electronic monitoring.\\nUnderlying facts\\nIn February 2016, Lowell James Thompson IV was arrested on various charges, including driving under the influence and felony eluding. Thompson was released on pre-trial bail, with a condition of electronic monitoring. Thompson's other bail conditions included prohibitions on his use of alcohol and controlled substances.\\nOn July 12, 2016, while Thompson was on electronic monitoring, a new version of AS 11.56.757 took effect. Under this new version, the act of violating the conditions of one's bail release was no longer a misdemeanor, but only a violation.\\nTwo weeks later, on July 27, Thompson was remanded to custody following his arrest for two new crimes: fourth-degree assault and fourth-degree criminal mischief. The State also alleged that Thompson violated the bail condition that forbade him from consuming alcohol.\\nOn August 2, 2016, Thompson was released on electronic monitoring again. Two and a half months later, on October 19, 2016, Thompson was again remanded to custody after his urine tested positive for heroin, cocaine, and methamphetamine. Thompson was not released on bail again in this case.\\nThompson ultimately reached a plea agreement with the State. Under the terms of this agreement, Thompson pleaded guilty to driving under the influence and to felony eluding. The State dismissed the other charges, including the fourth-degree assault and fourth-degree criminal mischief charges for which Thompson was arrested during his first period of electronic monitoring release.\\nThompson received a composite sentence of 3 years and 90 days, with 60 days suspended. At his sentencing, Thompson asked the superior court to give him credit against this sentence under AS 12.55.027(d) for the approximately seven months-a total of 214 days-that he spent on electronic monitoring.\\nThe State argued that Thompson was disqualified from receiving any credit against his sentence because, both times that he was released on electronic monitoring, he violated the conditions of his release-by consuming alcohol and by committing new crimes during his first release, and by using illegal drugs during his second bail release.\\nThompson responded that, under the newly amended version of AS 11.56.757, his violations of the conditions of his release did not qualify as \\\"criminal offenses\\\" for purposes of AS 12.55.027(d), and thus he was still eligible to receive credit for the time he spent on electronic monitoring.\\nThe superior court agreed that Thompson's violations of the conditions of his release no longer constituted criminal offenses under Alaska law, and the court therefore granted Thompson the credit that he requested. The court's order did not address the State's claim that Thompson committed new crimes (fourth-degree assault and fourth-degree criminal mischief) during his first period of release on electronic monitoring.\\nThe State then petitioned this Court to review the superior court's ruling.\\nWhy we conclude that defendants who violated the conditions of their bail release (other than by committing a new crime) between July 12, 2016 and November 27, 2017 remained eligible for credit against their sentences under AS 12.55.027(d) for the time they spent on electronic monitoring\\nAt first blush, the answer to the question in this case might appear to be straightforward. Under AS 12.55.027(d), a person who is released on electronic monitoring forfeits the credit they might otherwise have received against their sentence if they \\\"committed a criminal offense while under electronic monitoring\\\". From July 12, 2016 until November 27, 2017, the act of violating one's conditions of bail release was only a \\\"violation\\\"-a non-criminal offense. Thus, a person who was released on electronic monitoring during this 16-month period did not commit a \\\"criminal offense\\\" if they violated their conditions of release in some way other than committing a new crime.\\nBut under Alaska law, courts employ a \\\"sliding scale\\\" approach to statutory interpretation. We do not mechanically apply the \\\"plain meaning\\\" of the statutory language, even if that language is facially unambiguous. Instead, we look both to the wording of the statute and to its legislative history to see if we can ascertain the legislature's intent when it passed the statute.\\nHere, the State argues that the legislative history of AS 12.55.027(d) evinces a clear legislative intent to deny electronic monitoring credit to any defendant who violated the conditions of their bail release, even if that violation of conditions was not independently a crime. Under Alaska's \\\"sliding scale\\\" approach to statutory interpretation, the State is entitled to make that argument. But even under that \\\"sliding scale\\\" approach, the plainer the statutory language is, the more convincing the evidence of a contrary legislative intent must be.\\nHere, there is nothing facially ambiguous about the wording of AS 12.55.027(d). This statute provides, in pertinent part, that a court may not grant credit against a sentence of imprisonment for time that the defendant spent on electronic monitoring \\\"if the [defendant] has . committed a criminal offense while under electronic monitoring\\\".\\nThis statutory credit was enacted in 2015. At that time (as we have already explained), AS 11.56.757 made it a crime to violate the conditions of one's bail release. Thus, when the legislature enacted the present statutory provisions giving credit for electronic monitoring, the phrase \\\"criminal offense\\\" included any violation of the defendant's conditions of release.\\nThe legislative history of AS 12.55.027(d) also makes clear that the legislature understood that this was the case-and that the legislature fully intended to deny electronic monitoring credit to a defendant who violated the conditions of their bail release.\\nThe sponsor of the \\\"credit for electronic monitoring\\\" law, Representative Tammie Wilson, specifically stated that the intent of her legislation was to grant credit to defendants on electronic monitoring only if \\\"they follow the judge's orders and obey the laws of the land.\\\" Other legislative discussions of the proposed law also focused on the requirement that the defendant comply with all the conditions of their bail release in order to obtain credit for time spent under electronic monitoring.\\nVarious legislators requested-and received-clarification of this exact point. In a House Finance Committee hearing on April 6, 2015, for example, Representative David Guttenberg asked for clarification of the statutory language \\\"has not committed a criminal offense\\\". Rep. Guttenberg pointed out that a defendant's bail conditions often prohibit conduct that is not itself criminal; for example, a judge can order a defendant not to drink alcoholic beverages while on bail release, or can order the defendant not to contact the victim or other witnesses. In response, the bill's sponsor, Rep. Wilson, reminded Rep. Guttenberg that any violation of a condition of bail release constituted a \\\"criminal offense\\\" under Alaska law-and she declared that the intent of the proposed law was to preclude electronic monitoring credit for defendants who violated any of the conditions of their release.\\nA similar discussion occurred at a Senate Judiciary Committee hearing on April 15, 2015. At that hearing, Senator Bill Wielechowski discussed a hypothetical situation in which a defendant was on electronic monitoring for a year and then violated the conditions of their release by drinking alcoholic beverages. Sen. Wielechowski wanted clarification as to whether this defendant would lose their electronic monitoring credit for the whole year, or only for the day on which the drinking occurred. A member of the legislative staff replied that the intent of the bill's sponsor was to preclude a defendant from receiving any credit for electronic monitoring if the defendant \\\"[did] not adhere to the rules set forth by the court.\\\" As the staffer explained, \\\"If you . break the law, you're not going to get the credit; and I believe that is the intent.\\\"\\nFollowing this discussion, Senator John Coghill stated his view that if a person violated any condition of their bail, they would not receive any credit for electronic monitoring. Sen. Coghill also emphasized that the legislature needed to be very clear on this point-and he asked Rep. Wilson whether the proposed language of her bill was sufficient to clearly indicate that a defendant who failed on electronic monitoring would lose \\\"all the credit\\\".\\nThe ambiguity on this issue only arose the following year, when the legislature amended AS 11.56.757 to reclassify the crime of violating one's conditions of bail release as a non-criminal \\\"violation\\\". This legislative reclassification was part of a larger 2016 omnibus criminal law reform bill that made substantive changes to a significant portion of Alaska's criminal code.\\nThe legislature's stated purpose for this change-reclassifying a violation of bail conditions from a misdemeanor to a \\\"violation\\\"-was to remove the possibility of imprisonment for conduct that did not necessarily pose a threat to public safety (i.e. , for violations of bail conditions that did not, themselves, independently constitute a crime).\\nThe potential impact of this reclassification on a defendant's eligibility for electronic monitoring credit under AS 12.55.027(d) was never acknowledged. Indeed, there was no discussion of this point at any of the committee hearings on the 2016 amendment to AS 11.56.757.\\nIn its petition to this Court, the State suggests that even though the legislature de-criminalized the violation of bail conditions (by eliminating any criminal penalty for bail violations that did not independently constitute a crime), there is nothing in the legislative record to indicate that the legislature had changed its mind about denying jail credit to defendants who violated the conditions of their release while they were on electronic monitoring.\\nThe State notes that the legislative record from 2015 clearly shows that the legislature wanted to deny electronic monitoring credit to defendants who violated any bail condition, even if the defendant's conduct did not constitute an independent crime. Based on the clarity of the 2015 debates, and based on the fact that the legislature engaged in only tangential discussions of this point in 2016, the State argues that the legislature did not intend to expand eligibility for electronic monitoring credit when they amended AS 11.56.757 in 2016.\\nFor this reason, the State asks us to construe AS 12.55.027(d) as if it precluded electronic monitoring credit for defendants who \\\"committed a criminal offense\\\" (the language of the statute) and also for defendants who otherwise violated a condition of their bail release.\\nThe State offers a reasonable interpretation of the events of 2015 and 2016. But it is also reasonable to construe AS 12.55.027(d) as it is written.\\nWhen the legislature enacted its omnibus criminal law reform in 2016, one of the legislature's chief goals was to reduce criminal penalties for a range of conduct-types of conduct where the legislature concluded that the threat to public safety no longer justified the economic and societal costs of imprisoning offenders for lengthy periods, or where the legislature concluded that shorter penalties would achieve the same community goals. As we have explained, this was clearly the legislature's thinking when it amended AS 11.56.757 to eliminate criminal penalties for violations of bail conditions that did not, themselves, constitute new criminal offenses.\\nThis new attitude toward non-criminal violations of bail conditions is consistent with the legislature's decision to leave the wording of AS 12.55.027(d) alone-so that defendants would continue to lose electronic monitoring credit if they violated their bail conditions by committing new criminal offenses, but defendants would no longer lose their electronic monitoring credit if they committed non-criminal violations of bail.\\nBecause we conclude that both of these interpretations are reasonable, our decision in this case is guided by the principle that, the plainer the language of the statute, the more convincing the evidence of a contrary legislative intent must be.\\nHere, that principle counsels us to reject the State's proposed construction of the statute, and to affirm the trial court's ruling that Thompson's violation of his bail conditions by drinking alcoholic beverages and illicitly using drugs does not disqualify him from receiving credit for the days he spent on electronic monitoring.\\nThe remaining issue in Thompson's case\\nOur ruling regarding the proper construction of AS 12.55.027(d) does not wholly dispose of Thompson's case.\\nAs we explained earlier, the State argued that Thompson was disqualified from receiving electronic monitoring credit for the first period of his release because he committed new crimes-fourth-degree assault and fourth-degree criminal mischief. These charges were dismissed as part of a plea bargain. But AS 12.55.027(d) does not speak of a defendant's conviction of a new crime while on electronic monitoring. Rather, the statute speaks of a defendant's commission of a new crime.\\nThus, for purposes of deciding whether Thompson is eligible to receive credit for his first period of electronic monitoring, the State must be allowed to litigate whether Thompson did in fact commit either fourth-degree assault or fourth-degree criminal mischief (or both) during that first period of electronic monitoring release.\\nThe State must produce evidence showing that Thompson committed these crimes. But this is only a burden of production, not a burden of ultimate persuasion. Moreover, the State need not actually prosecute Thompson for these crimes by presenting witnesses. Instead, as is the case at a probation or sentencing hearing, the State may rely on hearsay reports or other forms of evidence that are shown to be reliable, even if the evidence would not be admissible at a criminal trial.\\nOnce the State has come forward with a prima facie case that Thompson committed the crimes, the burden shifts to Thompson to prove, by a preponderance of the evidence, that the State's proffered evidence is insufficient, or is otherwise unreliable, and that he did not commit either fourth-degree assault or fourth-degree criminal mischief.\\nConclusion\\nWe AFFIRM the superior court's ruling that Thompson's non-criminal violations of his conditions of bail release do not disqualify him from receiving credit for the time he spent on electronic monitoring.\\nHowever, we REMAND this case to the superior court with directions to allow the State to litigate whether Thompson committed the crimes of fourth-degree assault and fourth-degree criminal mischief during his first period of electronic monitoring release.\\nIf the State presents a prima facie case that Thompson committed these crimes while on electronic monitoring, and if Thompson does not then prove by a preponderance of the evidence that he did not commit these crimes, then Thompson is not eligible for electronic monitoring credit for his first period of release. See State v. Bell , 421 P.3d 128, 130-33, 2018 WL 1221458 at *2-4 (Alaska App. 2018).\\nEnacted by SLA 2000, ch. 124, \\u00a7 3.\\nSLA 2016, ch. 36, \\u00a7 29-30.\\nSLA 2017 (4th Special Session), ch. 1, \\u00a7 19-20, effective Nov. 27, 2017.\\nState v. Fyfe , 370 P.3d 1092, 1094 (Alaska 2016).\\nIbid.\\nIbid.\\nSLA 2015, ch. 20, \\u00a7 1-3.\\nThese discussions are found in the audio record of the House Judiciary Committee's meeting of March 23, 2015, from 1:04:49 to 2:36:32.\\nThis question, and the discussion it engendered, are found in the audio record of the House Finance Committee's meeting of April 6, 2015, from 2:43:40 to 2:47:36.\\nSee also House Finance Committee hearing on House Bill 15, April 6, 2015 @ 2:19:30, where Rep. Wilson explained that a defendant would receive credit only if the defendant was compliant with their court-ordered conditions of release, and @ 2:27:43 2:28:03, where Rep. Wilson explained that, in order to receive credit for electronic monitoring, a defendant would have to comply with all the requirements imposed by the trial court. See also House Finance Committee hearing on House Bill 15, April 10, 2015 @ 2:27:08-2:27:19, where Rep. Les Gara stated, \\\"If you violate your bail condition ., you don't get this credit, because you're not allowed to commit a crime while you're out there, and violating your bail condition is a crime.\\\"\\nSenate Judiciary Committee hearing on House Bill 15, April 15, 2015 @ 2:32:37 2:33:36 (containing both Sen. Wielechowski's remarks and the staffer's response).\\nSenate Judiciary Committee hearing of April 15, 2015 @ 2:45:10-2:45:33 and @ 2:48:51-2:49:50. See also Senate Judiciary Committee hearing of April 15, 2015 @ 2:32:16-2:32:21 (taking a drink would be considered a criminal offense if the court had prohibited alcohol consumption, because disobeying any condition of a bail order is a crime).\\nSLA 2016, chapter 36-popularly known as \\\"Senate Bill 91\\\".\\nCf. AS 12.55.027(e) (\\\"The defendant must prove by a preponderance of the evidence that the credit claimed meets the requirements of this section.\\\").\"}"
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+"{\"id\": \"12572812\", \"name\": \"Ronda MARCY, Appellant, v. MATANUSKA-SUSITNA BOROUGH, Appellee.\", \"name_abbreviation\": \"Marcy v. Matanuska-Susitna Borough\", \"decision_date\": \"2018-09-28\", \"docket_number\": \"Supreme Court No. S-16617\", \"first_page\": \"1056\", \"last_page\": \"1064\", \"citations\": \"433 P.3d 1056\", \"volume\": \"433\", \"reporter\": \"Pacific Reporter 3d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-27T21:04:10.849739+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and Carney, Justices.\", \"parties\": \"Ronda MARCY, Appellant,\\nv.\\nMATANUSKA-SUSITNA BOROUGH, Appellee.\", \"head_matter\": \"Ronda MARCY, Appellant,\\nv.\\nMATANUSKA-SUSITNA BOROUGH, Appellee.\\nSupreme Court No. S-16617\\nSupreme Court of Alaska.\\nSeptember 28, 2018\\nRonda Marcy, pro se, Palmer, Appellant.\\nNicholas Spiropoulos, Borough Attorney, Matanuska-Susitna Borough Attorney's Office, Palmer, for Appellee.\\nBefore: Stowers, Chief Justice, Winfree, Maassen, Bolger, and Carney, Justices.\", \"word_count\": \"4127\", \"char_count\": \"26526\", \"text\": \"WINFREE, Justice.\\nI. INTRODUCTION\\nA borough resident filed suit against the borough and citizens who had sponsored a borough ballot initiative prohibiting commercial marijuana businesses. The suit, filed 32 days before the borough election, sought declaratory and injunctive relief that the initiative was unconstitutional and unlawful and should be removed from the election ballot. Given the imminent election, the superior court ordered the case held in abeyance pending the initiative vote's outcome. After borough voters rejected the initiative, the court dismissed the case as moot.\\nThe borough resident appeals, arguing that the merits of her declaratory judgment claim should be heard under the public interest exception to the mootness doctrine and that the superior court issued procedurally defective orders, violated her due process rights, and erroneously awarded attorney's fees against her. We affirm the superior court because it did not abuse its discretion in its procedural decisions; the resident's due process rights were not violated; we decline to invoke the public interest exception to address the moot claims; and the resident failed to properly bring her attorney's fees appeal.\\nII. FACTS AND PROCEEDINGS\\nIn November 2014 Alaskans passed a statewide ballot initiative enacting AS 17.38, which became law in February 2015, generally legalizing marijuana. Subsection 210(a) permits local governments to \\\"prohibit the operation of marijuana cultivation facilities, marijuana product manufacturing facilities, marijuana testing facilities, or retail marijuana stores through the enactment of an ordinance or by a voter initiative.\\\"\\nIn May 2015 the Matanuska-Susitna Borough Clerk received a municipal initiative petition titled \\\"Application for Ballot Initiative to Prohibit Marijuana Businesses Except Those Involving Industrial Hemp in the Matanuska-Susitna Borough\\\" (the Proposed Initiative). After the petition received the requisite number of signatures, the Clerk certified the Proposed Initiative for the October 2016 local ballot. In May 2016 the Borough Assembly adopted an ordinance establishing a temporary moratorium on marijuana establishments pending the Proposed Initiative's October election outcome.\\nRonda Marcy, a Borough resident, had taken steps after AS 17.38's passage to open a marijuana business; she purchased greenhouses, moved them to her property, and outfitted them to grow marijuana. She was appointed to the Borough's Marijuana Advisory Committee, which was tasked with reporting public hearing comments and opinions to the Borough's Planning Committee and the Borough Assembly. Marcy attended hearings on both the Proposed Initiative and the proposed moratorium ordinance, and at a February 2016 meeting she received a copy of the Proposed Initiative.\\nOn September 2-only 32 days before the election-Marcy filed a complaint for declaratory judgment and injunctive relief accompanied by a motion for expedited consideration against the Borough and the Proposed Initiative's 14 sponsors. Marcy sought injunctive relief \\\"to prevent [the Proposed Initiative] from being placed before the voters, to have [it] removed from the Ballot, and to prevent any votes from being counted on the [Proposed Initiative], until after this matter is resolved.\\\" Marcy also sought declaratory relief on claims that the Proposed Initiative was constitutionally and statutorily prohibited; that AS 17.38.210(a), authorizing local governments to prohibit the operation of marijuana businesses through voter initiative, was unconstitutional; that both the Proposed Initiative and the moratorium ordinance were unconstitutional property takings; and that it was error for the Borough Clerk to have certified the Proposed Initiative for the ballot. Superior Court Judge Vanessa White was assigned the case. The court granted expedited consideration, and the Borough timely responded on September 19.\\nOn September 22 Judge White assigned the case to Superior Court Judge pro tem David Zwink; Judge White and Judge Zwink ordered the case held in abeyance pending the October 4 election results. The court explained that absentee voting already had begun and that any relief available before the election \\\"would be inherently disruptive and prejudicial to the ordinary voting process already in progress.\\\" Marcy moved for reconsideration, or in the alternative a stay pending interlocutory appeal, on September 28; Judge White denied her motion the following day. Judge White reiterated that both orders were entered without prejudice, that Marcy was entitled to amend her complaint, and that Marcy could seek injunctive relief to stay implementation of the Proposed Initiative if it passed or could assert the public interest exception to try to litigate claims that appeared facially moot if the Proposed Initiative failed.\\nThe Proposed Initiative was rejected by Borough voters in the October 4 election; three days later Judge Zwink issued a notice of intent to dismiss the case as moot and invited the parties to file written objections. Marcy objected, the Borough requested the case be dismissed, and Marcy filed a reply. For reasons not apparent from the record, the case then was reassigned to Superior Court Judge Jonathan A. Woodman. The reassignment notice apparently was not served on the parties.\\nIn late January 2017 Judge Woodman ordered the matter dismissed with prejudice for \\\"the reasons presented\\\" in the Borough's response to the court's earlier dismissal notice and permitted the Borough to seek attorney's fees and costs. The following week the Borough requested final judgment and attorney's fees and costs. Marcy sought reconsideration of the dismissal and a stay of the Borough's attorney's fees and costs request, styled as a motion to stay the execution of judgment. The court promptly denied Marcy's motions as moot.\\nMarcy appealed in mid-February, asserting that the superior court erred by: granting the abeyance; issuing a notice to dismiss the case as moot; ordering the case dismissed; failing to provide findings of fact and conclusions of law in its dismissal order and reconsideration order; failing to notify Marcy the case had been reassigned to Judge Woodman; awarding the Borough attorney's fees; and violating her due process rights.\\nIn March the superior court issued its final judgment and awarded the Borough attorney's fees. Neither party supplemented the appellate record to include these orders.\\nIII. STANDARD OF REVIEW\\nThe superior court's procedural decisions generally are reviewed for abuse of discretion. \\\"Whether there was a violation of due process is a question of law, which we review de novo.\\\" We also review questions of mootness de novo.\\nIV. DISCUSSION\\nMarcy alleges that the superior court committed a variety of errors when denying her requests for declaratory and injunctive relief removing the Proposed Initiative from the October 2016 ballot. Marcy also contends the court made several procedural errors, a substantive error, and an erroneous attorney's fees award against her. We address each category in turn.\\nA. Alleged Procedural Errors\\nMarcy contends that the superior court made several procedural errors, including wrongfully issuing an order holding the case in abeyance pending the outcome of the election; wrongfully issuing a notice of intent to dismiss the lawsuit after the Proposed Initiative failed on the ballot; failing to include findings of fact and conclusions of law in its dismissal order; and not providing her notice of the judicial reassignment prior to the case being dismissed. Marcy argues that some of these alleged errors violated her constitutional rights and require us to reverse the dismissal of her appeal.\\n1. It was not an abuse of discretion to issue the abeyance order.\\nFirst, we reiterate that \\\"[p]rior to [an] election, courts will review only the question whether an initiative meets the constitutional and statutory provisions regulating initiatives.\\\" The primary thrust of Marcy's challenge-that the Proposed Initiative is an unconstitutional taking and zoning by initiative-is not such a challenge; it is a substantive challenge. Although \\\"courts are . empowered to conduct pre-election review of initiatives where the initiative is clearly unconstitutional or clearly unlawful,\\\" it is not clear that Marcy presented a valid pre-election challenge to the Proposed Initiative. Because \\\"[c]ourts will not review the constitutionality of the substantive initiative proposal until and unless the voters pass the ordinance,\\\" the superior court did not abuse its discretion by holding the case in abeyance pending the election results.\\nSecond, even if Marcy presented legitimate pre-election challenge issues, \\\"where an impending election is imminent and . election machinery is already in progress, equitable considerations might justify a court in withholding the granting of immediately effective relief.\\\" Here the Borough's \\\"election machinery\\\" was in process as early as August 22-11 days before Marcy's complaint-when voting machine programming cards were delivered to the Borough. On August 25-more than a week before Marcy's complaint-69,875 printed ballots corresponding to the programming cards were delivered for the Borough's election equipment. By the time the Borough filed its expedited answer on September 19, absentee voting had begun.\\nMarcy argues that, in the 13 days \\\"between the time the complaint was filed and the absentee ballots were mailed out,\\\" the superior court could have \\\"granted the injunction, . ordered the [Proposed Initiative] removed from the ballot, . prevented any vote on the [Proposed Initiative], and[/or] . ordered the votes sealed and not counted if it was voted on, pending resolution of the matters in the complaint.\\\" The first three propositions would have resulted in \\\"a great disruption to the election process\\\" because, as the Borough Clerk explained, there was not sufficient time to reprogram the voting machine memory cards before the election without \\\"call[ing] into question the results of all other questions on the ballot.\\\" The fourth option, ordering the votes sealed, would have resulted in practically the same effect as \\\"a prohibitory injunction staying enforcement of the ballot measure if it passes,\\\" which the superior court explained Marcy could pursue if the Proposed Initiative passed.\\nIt was not an abuse of discretion to order the case held in abeyance pending the ballot results; no enduring harm or prejudice resulted because-even if Marcy had presented a valid pre-election challenge to the Proposed Initiative-the challenged issues could have been addressed immediately following the election had the Proposed Initiative passed.\\nMarcy also argues that the abeyance order \\\"denied her constitutional rights of due process.\\\" We disagree; Marcy was not denied her \\\"opportunity to be heard and the right to adequately represent [her] interests\\\" because she had multiple opportunities to represent her interests. Marcy had her opportunity to be heard through an expedited motion for reconsideration and through interlocutory petition to this court. The superior court addressed her motions expeditiously; it neither abused its discretion nor violated her due process rights by placing the case in abeyance due to the impending election.\\n2. It was not an abuse of discretion to issue the notice of intent to dismiss the case as moot.\\nMarcy next argues the superior court erred when it issued its notice of intent to dismiss the case as moot following the Proposed Initiative's defeat on the ballot. But it was not an abuse of discretion to sua sponte raise the issue of mootness and request briefing because \\\"[t]he court inherently possesses the power to request briefing on issues which come to its attention.\\\" Marcy's action to declare the Proposed Initiative unconstitutional and remove it from the ballot became moot after Borough voters rejected the Proposed Initiative. Marcy does not demonstrate how the court's notice, which provided her the opportunity to brief the issue, resulted in prejudice requiring reversal. Marcy also argues the superior court violated her due process rights by issuing its notice of intent to dismiss for mootness and its order dismissing the case. We disagree; in response to the court's notice of intent to dismiss Marcy filed both an objection and a reply to the Borough's response, and following the court's dismissal order she filed a motion for reconsideration. The court's decision to issue a notice of intent to dismiss the case as moot following the failed passage of the Proposed Initiative thus was neither an abuse of discretion nor a violation of due process; it instead provided Marcy another opportunity to be heard.\\n3. It was not an abuse of discretion to issue the dismissal without findings of fact and conclusions of law.\\nMarcy next argues the superior court erred by failing to make findings of fact and conclusions of law as required by Alaska Civil Rule 52(a) in its dismissal order. We disagree. Findings and conclusions were not required for the dismissal order, which was not an adjudication on the merits of Marcy's claim. Second, the court's order incorporated the reasoning in the Borough's response to the court's dismissal notice.\\n4. Marcy had notice and opportunity to preempt Judge Woodman.\\nMarcy finally argues that \\\"[i]t was error for the order of dismissal with prejudice to be entered, when the case was still unassigned, according to the electronic docket,\\\" and that she \\\"was denied her constitutional and statutory right to notice and an opportunity to move to preempt, or move to recuse, the judge.\\\" The Borough contends this argument is waived because Marcy failed to raise this issue below, the issue does not fit into an exception for consideration, and, in the alternative, the dismissal order was not plain error because Marcy had actual notice of the assignment when the order was issued but failed to raise a peremptory challenge in, or in addition to, her motion for reconsideration. We agree that Marcy failed to timely raise the argument below.\\nMarcy failed to timely peremptorily challenge Judge Woodman's assignment under Alaska Civil Rule 42(c). She received actual notice of Judge Woodman's assignment to her case in January 2017 when she received his signed dismissal order, but she did not file or raise a peremptory challenge within five days as allowed by the rule. Marcy instead filed motions in February seeking reconsideration and an execution of judgment stay, thus waiving her right to peremptorily challenge Judge Woodman because she \\\"knowingly participat[ed] before that judge in . [a] judicial proceeding which concerns the merits of the action and involves the consideration of evidence or of affidavits.\\\"\\nMarcy also had the opportunity to file a motion to recuse or disqualify Judge Woodman for cause, but she did not do so. We see no error.\\nB. Alleged Substantive Error-Dismissal For Mootness\\nMarcy requested declaratory relief that the Proposed Initiative was unconstitutional for a variety of reasons and that it violated statutes prohibiting zoning by initiative. Marcy wants those issues decided. But because the Proposed Initiative was not enacted by the Borough voters and there is no live controversy, under our precedent we refrain from determining its constitutionality and compliance with statutes.\\nMarcy argues that the Proposed Initiative's constitutionality merits review under the public interest exception to the mootness doctrine. She contends our review would avoid \\\"the needless repetition that could open floodgates of litigation to correct [similar initiatives] now being circulated for signatures.\\\" In determining whether the public interest exception applies, we consider: \\\"(1) whether the disputed issues are capable of repetition, (2) whether the mootness doctrine, if applied, may repeatedly circumvent review of the issues, and (3) whether the issues presented are so important to the public interest as to justify overriding the mootness doctrine.\\\"\\nReviewing Marcy's constitutional challenges to the Proposed Initiative to avoid litigating similar initiatives is not so important to the public interest as to justify overriding the mootness doctrine, because those unknown initiatives simply are not before us. An opinion on the Proposed Initiative's constitutionality would be purely advisory at best and inapplicable at worst. We believe it best to wait for a proposed or actual law challenge grounded on real facts so that our decision is properly focused and avoids any unintended consequences. Therefore, the public interest exception does not persuade us to review Marcy's moot constitutional and statutory claims.\\nC. Borough's Attorney's Fees Award\\nThe parties dispute whether it was appropriate for the superior court to award the Borough attorney's fees, but the issue is not properly before us. Under Alaska Appellate Rule 210(a), \\\"the record does not include documents or exhibits filed after . the filing date of the notice of appeal.\\\" Marcy filed this appeal on February 14, 2017. Although the Borough filed its attorney's fees motion on January 31, the court did not enter the attorney's fees and costs award until March 28. Prior to Marcy's appeal she had filed a motion to stay execution of judgment pending her motion for reconsideration, which the court denied; she then apparently never opposed the Borough's motion on the merits. Because Marcy apparently failed to oppose the motion and neither party requested that the court's order be added to the record, we are unable to review the merits of the superior court's decision.\\nV. CONCLUSION\\nThe superior court's judgment is AFFIRMED.\\nSee AS 17.38.010(a) (\\\"In the interest of allowing law enforcement to focus on violent and property crimes, and to enhance individual freedom, the people of the state of Alaska find and declare that the use of marijuana should be legal for persons 21 years of age or older.\\\").\\nThe Borough is the only defendant participating in this appeal.\\nThe Borough Assembly's moratorium on marijuana businesses expired on October 19.\\nMullins v. Local Boundary Comm'n , 226 P.3d 1012, 1015 (Alaska 2010) (citing Walker v. Walker , 151 P.3d 444, 447 (Alaska 2007) ).\\nPatrick v. Municipality of Anchorage, Anchorage Transp. Comm'n , 305 P.3d 292, 297 (Alaska 2013) (citing D.M. v. State, Div. of Family & Youth Servs ., 995 P.2d 205, 207 (Alaska 2000) ).\\nMullins , 226 P.3d at 1015 (citing Akpik v. State, Office of Mgmt. & Budget , 115 P.3d 532, 534 (Alaska 2005) ).\\nKodiak Island Borough v. Mahoney , 71 P.3d 896, 898 (Alaska 2003).\\nCf. Alaskans for Efficient Gov't, Inc. v. State , 153 P.3d 296, 298, 302 (Alaska 2007) (reviewing proposed initiative to create supermajority requirement and concluding that lieutenant governor properly rejected initiative \\\"for failing to comply with constitutional provisions regulating initiatives\\\" (quoting State v. Trust the People , 113 P.3d 613, 614 n.1 (Alaska 2005) ) ).\\nSee Mahoney , 71 P.3d at 898 ; see also Pebble Ltd. P'ship v. Parnell , 215 P.3d 1064, 1077 (Alaska 2009) (\\\"We have long recognized that '[t]he general rule is that a court should not determine the constitutionality of an initiative unless and until it is enacted.' \\\" (alteration in original) (quoting Alaskans for Efficient Gov't , 153 P.3d at 298 ) ).\\nWade v. Nolan , 414 P.2d 689, 703-04 (Alaska 1966) (Rabinowitz, J., concurring) (emphasis omitted) (quoting Reynolds v. Sims , 377 U.S. 533, 585, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964) ) (noting that a court should consider upcoming election and state election laws, then act on equitable principles).\\nSee In re 2011 Redistricting Cases , 294 P.3d 1032, 1049 (Alaska 2012) (Matthews, J., dissenting) (quoting In re 2011 Redistricting Cases , No. S-14721 (Alaska Supreme Court Order, May 22, 2012) (rejecting redistricting plan in part because changes to districts were so late in the election process that it would cause great disruption) ); see also Pebble Ltd. P'ship ex rel. Pebble Mines Corp. v. Lake & Peninsula Borough , 262 P.3d 598, 602 (Alaska 2011) (Stowers, J., concurring) (explaining there was \\\"no realistic way\\\" to have full briefing, have oral argument, and issue appellate decision remanding for expedited decision on pre-election initiative challenge issues superior court had failed to reach before borough was required to mail absentee ballots for election seven weeks away).\\nSee Lake & Peninsula Borough , 262 P.3d at 602 (Stowers, J., concurring) (\\\"Because all of these pre-election challenge issues-as well as any new post-election issues-can be raised on appeal following the Borough election, and because no enduring harm will result from denying the emergency petition for review, I think it acceptable (though certainly not optimal) to deny the petition and allow the voters to express their views on the initiative.\\\").\\nSee Patrick v. Municipality of Anchorage, Anchorage Transp. Comm'n , 305 P.3d 292, 298 (Alaska 2013) (quoting D.M. v. State, Div. of Family & Youth Servs. , 995 P.2d 205, 213-14 (Alaska 2000) ).\\nSee Bowers Office Prods., Inc. v. Univ. of Alaska , 755 P.2d 1095, 1096 n.3 (Alaska 1988).\\nSee Mullins v. Local Boundary Comm'n , 226 P.3d 1012, 1016 n.4 (Alaska 2010) (\\\"Even [where] discretion is abused, reversal will be required only upon a showing of prejudice.\\\" (alteration in original) (quoting Boggess v. State , 783 P.2d 1173, 1182 (Alaska App. 1989) ) ).\\nSee Patrick , 305 P.3d at 298 (\\\"We have held that '[t]he crux of due process is [the] opportunity to be heard and the right to adequately represent one's interests.' \\\" (alterations in original) (quoting D.M. , 995 P.2d at 213-14 ) ).\\nSee Alaska R. Civ. P. 52(a) (\\\"Findings of fact and conclusions of law are unnecessary on decisions of motions under Rule 12 or 56 or any other motion except as provided in Rule 41(b).\\\" (emphasis added) ); Alaska R. Civ. P. 41(b) (\\\"If the court renders judgment on the merits against the plaintiff, the court shall make findings as provided in Rule 52(a).\\\").\\nMarcy similarly asserted in her opening brief that \\\"[i]t was error for the [superior] court to deny reconsideration, without reason or cause and without any findings of fact and conclusions of law.\\\" But she abandoned this argument in her reply brief.\\nSee Alaska R. Civ. P. 42(c) (providing litigants a change of judge as a matter of right).\\nSee Alaska R. Civ. P. 42(c)(3) (\\\"Failure to file a timely notice precludes change of judge as a matter of right. Notice of change of judge is timely if filed . within five days after notice that the case has been assigned to a specific judge.\\\").\\nSee Alaska R. Civ. P. 42(c)(4)(i) (listing causes for disqualification and directing that \\\"right to change as a matter of right a judge\\\" is waived by participation).\\nSee AS 22.20.020.\\n\\\"We have established a 'general rule . that a court should not determine the constitutionality of an initiative unless and until it is enacted.' \\\" Mullins v. Local Boundary Comm'n , 226 P.3d 1012, 1021 n.39 (Alaska 2010) (alteration in original) (first quoting State v. Trust the People , 113 P.3d 613, 614 n.1 (Alaska 2005) ; and then citing Kodiak Island Borough v. Mahoney , 71 P.3d 896, 898 (Alaska 2003) ; Brooks v. Wright , 971 P.2d 1025, 1027 (Alaska 1999) ).\\nMullins , 226 P.3d at 1018 (quoting Ulmer v. Alaska Rest. & Beverage Ass'n , 33 P.3d 773, 777-78 (Alaska 2001) ); see, e.g. , Peloza v. Freas , 871 P.2d 687, 688 (Alaska 1994) (reviewing pre-election challenge otherwise moot by election under public interest exception); Falke v. State , 717 P.2d 369, 371 (Alaska 1986) (same).\\nSee Ahtna Tene Nen\\u00e9 v. State, Dep't of Fish & Game , 288 P.3d 452, 457-58 (Alaska 2012) (\\\"Even in a declaratory judgment case . where the rights or obligations of parties are delineated by the court, courts should avoid becoming involved in premature adjudication of disputes that are uncertain to occur.\\\" (alteration in original) (quoting Ulmer , 33 P.3d at 776 ) ).\\nSee Ulmer , 33 P.3d at 779.\\nMarcy also had requested that the Borough Assembly's moratorium prohibiting the processing of applications for operation of marijuana establishments in the five months preceding the election pending the Proposed Initiative's outcome be declared an unconstitutional taking. But the Borough contended in its response to Marcy's objection to the court's notice of intent to dismiss the case as moot that her takings claim was \\\"not before the court\\\" because she had expressly reserved the right to \\\"present [her] losses and damages . in a separate taking[s] action.\\\" The court noted \\\"the reasons presented in the Borough's Response \\\" in support of its dismissal order. (Emphasis in original.) We presume from this that the court saw no need to address the merits of the declaratory relief claim about the underlying takings action because \\\"[d]eclaratory relief is a 'nonobligatory remedy' \\\" that \\\" 'create[s] an opportunity, rather than a duty' for . courts to grant relief to qualifying litigants.\\\" Lowell v. Hayes , 117 P.3d 745, 756 (Alaska 2005) (quoting Wilton v. Seven Falls Co. , 515 U.S. 277, 288, 115 S.Ct. 2137, 132 L.Ed.2d 214 (1995) ). Although a takings claim would not be moot because it would not be premised on the Proposed Initiative's passage, the dismissal of Marcy's declaratory relief claim would not seem to affect Marcy's apparently preserved right to bring \\\"a separate taking[s] action.\\\"\\nSee Alaska R. App. P. 210(i)(1) (\\\"Materials . filed with the trial court after the filing date of the notice of appeal may be added to the record on appeal only upon motion designating by title, description, and filing date the materials sought to be added, and are limited to the following: . materials pertaining to attorney's fees, costs, or prejudgment interest....\\\").\\nSee David S. v. State, Dep't of Health & Soc. Servs. Office of Children's Servs. , 270 P.3d 767, 783 (Alaska 2012) (refusing to consider fact subsequent to appeal because \\\"Appellate Rule 210(a) provides that 'the record does not include documents or exhibits filed after . the filing date of the notice of appeal' \\\").\"}"
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+"{\"id\": \"12574128\", \"name\": \"Jennifer ANDERSON, Petitioner, v. STATE of Alaska, Respondent.\", \"name_abbreviation\": \"Anderson v. State\", \"decision_date\": \"2018-12-14\", \"docket_number\": \"Court of Appeals No. A-12600\", \"first_page\": \"1071\", \"last_page\": \"1084\", \"citations\": \"436 P.3d 1071\", \"volume\": \"436\", \"reporter\": \"Pacific Reporter 3d\", \"court\": \"Court of Appeals of Alaska\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-27T21:04:20.484861+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"\", \"parties\": \"Jennifer ANDERSON, Petitioner,\\nv.\\nSTATE of Alaska, Respondent.\", \"head_matter\": \"Jennifer ANDERSON, Petitioner,\\nv.\\nSTATE of Alaska, Respondent.\\nCourt of Appeals No. A-12600\\nCourt of Appeals of Alaska.\\nDecember 14, 2018\", \"word_count\": \"7312\", \"char_count\": \"45557\", \"text\": \"Judge ALLARD, writing for the Court.\\nJennifer Anderson is the wife of Jeremy Anderson, a former high school teacher. Jeremy Anderson currently stands indicted on multiple counts of first- and second-degree sexual abuse of a minor, based on allegations that he had sexual intercourse with one of his students, fifteen-year-old K.H., over the span of four months.\\nMrs. Anderson has asserted her spousal immunity privilege not to testify against her husband at his trial. In the proceedings below, the superior court rejected Mrs. Anderson's claim of privilege, concluding that the sexual abuse prosecution against Mr. Anderson fell within one of the codified exceptions to the marital privileges - specifically, the exception codified in Alaska Evidence Rule 505(a)(2)(D)(v) for cases in which one of the spouses is charged with \\\"a crime involving domestic violence as defined in AS 18.66.990.\\\"\\nMrs. Anderson petitioned this Court to review the superior court's ruling and we accepted the petition as an original application for relief under Alaska Appellate Rule 404. For the reasons explained here, we conclude that the superior court did not err when it rejected Mrs. Anderson's marital privilege claim in this case.\\nBackground facts\\nOn May 8, 2014, fifteen-year-old K.H. reported to one of her high school teachers that she had been sexually involved with her music teacher, thirty-six-year-old Jeremy Anderson, since February of that year. The troopers were contacted, and an investigation ensued. Based on the results of that investigation, Anderson was indicted on fourteen counts of first-degree sexual abuse of a minor and two counts of second-degree sexual abuse of a minor.\\nAt the grand jury hearing, K.H. testified regarding the nature and frequency of her sexual encounters with Anderson. K.H. stated that Anderson had started acting flirtatious towards her in December 2013. Anderson's \\\"flirtation\\\" continued, and the pair had sex for the first time in February 2014. K.H. testified that they had sexual intercourse around twenty to thirty times between February 2014 and early May 2014. The sex occurred on school grounds, generally in the choir room closet or the band room closet. Even though K.H. was below the age of sexual consent under Alaska law, she testified that she personally viewed the sex acts as \\\"consensual.\\\" She testified that the last time she and Anderson had sex, she told him she did not want to because she felt guilty, but Anderson pressured her to have sex with him despite her initial unwillingness.\\nDuring the pretrial proceedings in Jeremy Anderson's case, it became clear that the State intended to introduce various statements that Anderson made to his wife during the course of the investigation.\\nOn the same day that school officials contacted the state troopers, the troopers received a call informing them that a man - later determined to be Jeremy Anderson - was trying to kill himself. The troopers began searching for Mr. Anderson, and ultimately arrested him in his truck. Prior to Anderson's arrest, one of the troopers overheard a cell phone conversation between Anderson and his wife Jennifer. The trooper was able to overhear both sides of the conversation.\\nDuring that conversation, Anderson made general admissions of wrongdoing.\\nAfter arresting Anderson, the troopers discovered a letter addressed to his wife and children in the car. In this letter, Anderson admitted, again in general terms, that he had done wrong, and he apologized to his wife for his actions. Later, a trooper spoke with Jennifer Anderson about this letter. Mrs. Anderson told the trooper that, aside from this letter, her husband admitted to her that he had engaged in an inappropriate relationship with one of his students - a student named \\\"K.\\\"\\nIn the pretrial proceedings, the State indicated that it intended to call Mrs. Anderson as a witness to testify to her husband's admissions of wrongdoing. The State also indicated that it intended to introduce Mr. Anderson's suicide letter into evidence.\\nIn response, Mr. Anderson asserted his marital communications privilege under Alaska Evidence Rule 505(b) to exclude evidence of any confidential communications between himself and his wife. In later proceedings before the trial court, Mrs. Anderson also asserted her spousal immunity privilege under Rule 505(a), and she separately asserted her own marital communications privilege under Rule 505(b).\\nThe two forms of marital privilege recognized under Alaska law\\nAlaska law recognizes two marital privileges: the spousal immunity privilege codified in Evidence Rule 505(a), and the marital communications privilege codified in Evidence Rule 505(b).\\nEvidence Rule 505(a) provides that \\\"a husband shall not be examined for or against his wife, without his consent, nor a wife for or against her husband, without her consent.\\\" This privilege belongs solely to the witness-spouse, and it can only be invoked during the life of the marriage. Although originally premised on an outmoded jurisprudential theory that a wife has no legal existence separate from her husband, the more modern understanding of the privilege is that it exists to \\\"promote family peace and harmony\\\" that would otherwise be destroyed by adverse spousal testimony.\\nEvidence Rule 505(b) provides that a spouse shall \\\"[not] be examined as to any confidential communications made by one spouse to the other during the marriage, without the consent of the other spouse.\\\" This privilege may be claimed by either spouse, and it continues to apply even after the marriage has ended (provided that the confidential communications occurred during the marriage). Unlike the spousal immunity privilege, which is concerned with protecting the peace and harmony of a particular marriage, the confidential marital communications privilege is concerned with protecting the sanctity of marriage in general by safeguarding the freedom of spouses to \\\"communicate their deepest feelings to each other without fear of eventual exposure in a court of law.\\\"\\nBoth the spousal immunity privilege and the marital communications privilege have been criticized by legal commentators, and both privileges are subject to multiple statutory exceptions under Alaska law. The privileges are purely statutory in nature and neither privilege is absolute. Moreover, because both marital privileges operate to impede the normal truth-seeking function of court proceedings, they must be \\\"strictly construed\\\" by the courts and accepted \\\"only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth.\\\"\\nThe statutory exceptions to the marital privileges in criminal cases\\nThe Alaska legislature has enacted multiple statutory exceptions to Alaska Evidence Rule 505. Many of these exceptions are specific to criminal proceedings. Evidence Rule 505(a)(2)(D) and Evidence Rule 505(b)(2)(A) prohibit application of either privilege in a criminal proceeding in which one spouse is charged with:\\n(i) A crime against the person or the property of the other spouse or of a child of either .\\n(ii) Bigamy, incest, adultery, pimping, or prostitution;\\n(iii) A crime related to abandonment of a child or nonsupport of a spouse or child;\\n(iv) A crime prior to the marriage; [or]\\n(v) A crime involving domestic violence as defined in AS 18.66.990.\\nThese exceptions represent situations in which the legislature has directly determined that society's interest in promoting \\\"family peace and harmony\\\" must give way to society's larger interest in prosecuting certain crimes. Most jurisdictions have codified similar exceptions to their marital privileges. Indeed, virtually every jurisdiction recognizes an exception for crimes committed against a spouse or against the children of either spouse.\\nSome jurisdictions have also expanded this exception to include an \\\"any child\\\" exception - which means that spouses are precluded from asserting their marital privileges in a prosecution involving sexual abuse of any child, regardless of whether the child is related to either spouse. These jurisdictions have expressly decided that \\\"[s]ociety's interest in convicting and punishing one who commits child abuse is the same\\\" regardless of whether there is a familial relationship to the child. Alaska does not have an \\\"any child\\\" exception to its marital privileges.\\nThe superior court's rulings regarding the marital privileges in this case\\nThe superior court made two different rulings on the Andersons' assertions of marital privilege in this case.\\nFirst, the superior court ruled that the suicide letter could be introduced because it did not qualify as a \\\"confidential\\\" marital communication. The court noted that the letter included a section addressed to Mrs. Anderson, but it also included sections addressed to \\\"my kids\\\" and \\\"my family.\\\" The court also noted that the letter was left in plain view. Based on these circumstances, the court concluded that Mr. Anderson did not have a reasonable expectation that the suicide note would only be read by his wife, and the letter therefore did not qualify as a confidential marital communication.\\nSecond, the superior court ruled that the \\\"domestic violence\\\" exception applied to this criminal prosecution because the sexual abuse qualified as a \\\"crime of domestic violence\\\" as that term is defined in AS 18.66.990. Alaska Statute 18.66.990(3) defines a crime of domestic violence as including any crime against a person under 11.41 (sexual abuse of a minor qualifies as a crime against a person) if the crime is committed by one \\\"household member\\\" against another \\\"household member.\\\" Alaska Statute 18.66.990(5) defines \\\"household member\\\" to include \\\"adults or minors who are dating or who have dated,\\\" as well as \\\"adults or minors who are engaged in or who have engaged in a sexual relationship.\\\"\\nBased on K.H.'s grand jury testimony, the superior court ruled that Anderson and K.H. qualified as \\\"household members\\\" under AS 18.66.990(5)(C) and (D) because they had been engaged in a \\\"sexual relationship\\\" and had been \\\"dating\\\" for several months. The court therefore concluded that Mr. Anderson's alleged sexual abuse of his teenage student constituted \\\"crimes of domestic violence\\\" for purposes of precluding the use of either marital privilege at Mr. Anderson's criminal trial.\\nMrs. Anderson's petition for review to this Court\\nThe superior court's rulings ultimately applied to both Mr. and Mrs. Anderson. But the rulings initially applied only to Mr. Anderson, because he was at first the only spouse asserting a marital privilege. After the superior court rejected Mr. Anderson's confidential marital communications claim of privilege, Mr. Anderson filed a petition for review in this Court, seeking pretrial interlocutory review of the superior court's ruling. This Court declined to exercise our power of discretionary review because the case was pending trial and because Mr. Anderson had adequately preserved the issue for any future appeal should this ruling materially affect the resolution of his criminal case. In denying Mr. Anderson's petition, we expressed no opinion on the merits of the superior court's ruling.\\nFollowing our denial of Mr. Anderson's petition for review, Jennifer Anderson filed her own motion in the superior court, asserting her spousal immunity privilege (i.e. , her privilege not to be called as a witness in her husband's case) and her marital communications privilege. The superior court rejected Mrs. Anderson's claims of privilege - again ruling that the domestic violence exception applied.\\nMrs. Anderson petitioned this Court to review the superior court's rejection of her spousal immunity privilege. Because we recognized that Mrs. Anderson's rights as a witness-spouse could be adversely affected if we denied interlocutory review of her claim, we granted Mrs. Anderson's petition as an original application for relief under Alaska Appellate Rule 404.\\nWhy we affirm the superior court's ruling that the spousal immunity privilege does not apply to this criminal prosecution\\nWhether the domestic violence exception applies under the particular facts of this case is a question of law that we review de novo.\\nThe domestic violence exception to the marital privileges was enacted by the Alaska legislature in 1996 as part of a comprehensive revision of Alaska's domestic violence laws. The intended purpose of this 1996 legislation was to provide greater protections to victims of domestic violence and to focus more state resources on domestic violence prevention. To this end, the legislation broadened the definition of \\\"domestic violence\\\" and expanded the categories of persons who would qualify for protection as a victim of domestic violence. Included in these legislative changes was the adoption of the Model Code on Domestic and Family Violence's definition of \\\"household member.\\\"\\nUnder the Model Code, the term \\\"household member\\\" includes:\\n(a) Adults or minors who are current or former spouses;\\n(b) Adults or minors who live together or who have lived together;\\n(c) Adults or minors who are dating or who have dated;\\n(d) Adults or minors who are engaged in or who have engaged in a sexual relationship;\\n(e) Adults or minors who are related by blood or adoption;\\n(f) Adults or minors who are related or formerly related by marriage;\\n(g) Persons who have a child in common; and\\n(h) Minor children of a person in a relationship that is described in paragraphs (a) through (g).\\nThis definition, with a few minor revisions, is now codified in AS 18.66.990(5).\\nAlaska's domestic violence exception to the marital privileges is also derived from the Model Code on Domestic and Family Violence. Section 215 of the Model Code provides, in pertinent part:\\nSec. 215. Spousal privileges inapplicable in criminal proceedings involving domestic or family violence.\\nThe following evidentiary privileges do not apply in any criminal proceeding in which a spouse or other family or household member is the victim of an alleged crime involving domestic or family violence perpetrated by the other spouse:\\n1. The privilege of confidential communication between spouses.\\n2. The testimonial privilege of spouses.\\nThis exception was therefore intended to apply broadly to crimes outside the traditional intrafamilial domestic violence situation.\\nThe question presented by this case is whether this exception applies to the case at hand, which involves alleged sexual abuse of a minor by a person in a position of authority over the minor. Mrs. Anderson contends that the domestic violence exception should be limited to the \\\"everyday meaning\\\" of domestic violence which she defines as \\\"[f]amily or household members [who] have a connection rooted in blood, marriage, family standing, or a chosen romantic relationship.\\\"\\nAs a general matter, we agree with Mrs. Anderson that the hallmark of a crime of domestic violence is that it is a crime that is committed within the context of a pre-existing relationship. As we explained in Bates v. State :\\nthe purpose of domestic violence legislation is to protect victims from harm caused by . persons whose intimate . relationship to the victim increases the danger of harm, either because the parties live in physical proximity or because the relationship is one whose intimacy may disable the victim from seeking protection.\\nWe disagree, however, with Mrs. Anderson's contention that her husband and K.H. were not engaged in such an intimate relationship.\\nIn Bates , we concluded that the term \\\"dating\\\" was properly understood as a requirement that the parties be involved in a \\\"dating relationship \\\" - a term which connotes \\\"an ongoing series of social engagements, usually characterized by the parties' interest, or at least their potential interest, in pursuing a romantic relationship.\\\" We applied a similar durational requirement to the term \\\"sexual relationship.\\\" In Leu v. State , for example, we held that the defendant's ongoing friendship with another man that included occasional sexual intimacy qualified as a \\\"sexual relationship\\\" under AS 18.66.990 because \\\"[t]his is not the type of non-consensual or short-lived sexual involvement that falls outside the ordinary person's understanding of a 'sexual relationship.' \\\" Likewise, in Richart v. State , we expressed significant doubt that a \\\"single prior act of forced sexual contact\\\" could qualify as a \\\"sexual relationship\\\" for purposes of AS 18.66.990.\\nHere, we are not dealing with a single prior act of forced sexual contact. Instead, K.H.'s grand jury testimony makes clear that, from K.H.'s perspective at least, she was engaged in a sexual or dating relationship with Anderson - a relationship that spanned many months and involved multiple intimate encounters, not all of which were sexual in nature.\\nMrs. Anderson and the dissent both contend that this relationship cannot be acknowledged as a \\\"relationship\\\" for purposes of AS 18.66.990(5)(C)-(D) because K.H. could not lawfully be in a sexual relationship with Anderson given their respective ages. We agree with Mrs. Anderson and the dissent that K.H.'s purported \\\"consent\\\" to the sexual acts does not alter the criminal nature of Mr. Anderson's conduct. Sexual activity between an adult and a person under the legal age of consent is a crime, regardless of whether the minor victim subjectively perceives him or herself to be a \\\"consenting\\\" partner to the sexual abuse. As we previously explained in State v. Jackson , \\\"[i]t is precisely because the law deems children to be incapable of rendering meaningful consent in such situations that [statutory rape] has been defined to make consent irrelevant.\\\"\\nWe disagree, however, with Mrs. Anderson and the dissent that this means K.H. should be denied the legal protections that would otherwise be granted to her in these circumstances. The underlying legislative intent of the 1996 legislation was to broaden the definition of domestic violence so as to ensure legal protections to all persons who were rendered particularly vulnerable by virtue of their intimate relationship with their abuser. In keeping with this intent, the legislature defined \\\"household member\\\" to include adults and minors \\\"who are engaged in or who have engaged in a sexual relationship\\\" - thereby recognizing that such a relationship between an adult and a minor can exist for purposes of extending legal protections to those minors.\\nIn the dissent, Chief Judge Mannheimer criticizes the Court for extending legal protections to K.H. under reasoning that would not apply to all minors who have suffered sexual abuse. We agree that this case would be much easier to resolve if Alaska law included an \\\"any child\\\" exception to its marital privileges, as many other jurisdictions have done. But we do not have the authority to create such a broad exception where none currently exists. That is for the legislature to decide.\\nWe are guided in our analysis, however, by the larger principles of statutory interpretation, which require us to strictly construe the marital privilege at issue here and to interpret the statutory exception in accordance with the underlying legislative intent.\\nAt its heart, the domestic violence exception represents a clear legislative determination that society's interest in preserving family peace and harmony must give way to the broader societal interest in protecting victims who are made particularly vulnerable by virtue of their familial, domestic, or intimate relationships with their offenders. Because K.H.'s grand jury testimony provides a factual basis for finding such an intimate relationship here, and because society's interest in preserving the peace and harmony of a marriage in which an adulterous affair with an underage student has occurred is commensurately that much weaker, we conclude that the superior court did not err when it rejected Mrs. Anderson's spousal immunity claim in this case.\\nConclusion\\nThe ruling of the superior court is AFFIRMED.\\nSee Alaska Evid. R. 505(a).\\nSee also Alaska Evid. R. 505(b)(2)(A) (applying this same exception to an assertion of the confidential marital communications privilege under Evidence Rule 505(b) ).\\nSee AS 11.41.434(a)(3)(B) ; AS 11.41.436(a)(5)(B).\\nK.H. also testified that Anderson drove her to a church youth group one time and they kissed in the car, but no direct sexual activity occurred.\\nIt is unclear from the current record whether this was done with Mrs. Anderson's knowledge and permission.\\nSee Arredondo v. State , 411 P.3d 640, 644 (Alaska App. 2018) ; Alaska Evid. R. 505(a)(1) cmt. (\\\"If the marriage is a sham or has been terminated by divorce, annulment, or death, there is no privilege.\\\").\\nSee Daniels v. State , 681 P.2d 341, 345 (Alaska App. 1984) ; see also Trammel v. United States , 445 U.S. 40, 44, 100 S.Ct. 906, 63 L.Ed.2d 186 (1980) (noting that the testimonial privilege derives from two (now outmoded) jurisprudential theses: (1) \\\"the rule that an accused was not permitted to testify in his own behalf because of his interest in the proceeding,\\\" and (2) \\\"the concept that husband and wife were one, and that since the woman had no recognized separate legal existence, the husband was that one\\\").\\nAlaska Evid. R. 505(b)(1) ; see also Salazar v. State , 559 P.2d 66, 78 (Alaska 1976) (noting that the confidential marital communications privilege \\\"is meant to protect those communications arising between the partners of a marital relationship that are confidential and not as a privilege for all communications\\\").\\nAlaska Evid. R. 505(b)(1) (\\\"Neither during the marriage nor afterwards shall either spouse be examined as to any confidential communications made by one spouse to the other during the marriage, without the consent of the other spouse.\\\"); Alaska Evid. R. 505(b)(1) cmt. (\\\"both spouses are the holders of the privilege and either spouse may claim it\\\").\\nUnited States v. Byrd , 750 F.2d 585, 590 (7th Cir. 1984).\\nSee, e.g. , Alaska Evid. R. 505(a)(2) & (b)(2) ; AS 47.17.060 (declaring marital privileges inapplicable in all child in need of aid proceedings); see also Kenneth S. Broun et al., McCormick on Evidence \\u00a7 86, at 383 (6th ed. 2006) (criticizing the probable benefits of the marital communications privilege in actually encouraging marital confidences and wedded harmony as marginal); 8 John Henry Wigmore, Evidence in Trials at Common Law , \\u00a7 2228, at 221 (McNaughton rev. 1961) (criticizing the spousal immunity privilege as \\\"the merest anachronism in legal theory and an indefensible obstruction to truth in practice\\\").\\nSee Osborne v. State , 623 P.2d 784, 787 (Alaska 1981) (approving relaxation of former spousal immunity privilege in the interests of justice under Criminal Rule 53 ); Loesche v. State , 620 P.2d 646, 649 (Alaska 1980) ; see also Daniels , 681 P.2d at 345 (noting that courts have expressed a \\\"general policy to construe the marital privilege narrowly, particularly in cases involving child abuse\\\").\\nDaniels , 681 P.2d at 344 (quoting Trammel , 445 U.S. at 50, 100 S.Ct. 906 ); see also Osborne , 623 P.2d at 787 (\\\"Compulsory testimony is the basic norm of our legal system. Correspondingly, testimonial privileges, other than those resting upon a constitutional basis, should be given a fairly narrow scope.\\\").\\nSee, e.g. , Ariz. Rev. Stat. Ann. \\u00a7 13-4062 ; Cal. Evid. Code \\u00a7 972, 980 ; D.C. Code \\u00a7 14-306, 22-3024 ; Fla. Stat. \\u00a7 90.504 ; Idaho Code Ann. \\u00a7 9-203(1) ; Mass. Gen. Laws ch. 233, \\u00a7 20 ; Mich. Comp. Laws \\u00a7 600.2162(3) ; Nev. Rev. Stat. \\u00a7 49.295.\\nSee Pamela A. Haun, The Marital Privilege in the Twenty-First Century , 32 U. Mem. L. Rev. 137, 163-64, 173 (2001) (noting that \\\"[e]ssentially every state has adopted an exception to the marital privilege in cases where the spouse has committed a crime against the other spouse\\\" and \\\"[n]early every state has similarly adopted an exception in cases where the spouse has committed a crime against a child of either spouse, though some states limit this exception to minor children\\\"); see also Me. R. Evid. 504(d)(1)(C) (expanding exception to include \\\"any person residing in either spouse's household\\\").\\nSee, e.g. , D.C. Code \\u00a7 22-3024 ; Mass. Gen. Laws ch. 233, \\u00a7 20 ; Mich. Comp. Laws \\u00a7 600.2162(3) ; Miss. R. Evid. 504(d)(2)(A) ; see also Naomi Harlin Goodno, Protecting\\\"Any Child\\\": The Use of the Confidential-Marital-Communications Privilege in Child-Molestation Cases , 59 U. Kan. L. Rev. 1, 28, 37, n. 110 (2010) (listing states with \\\"any child\\\" exception and noting that some states distinguish child sexual abuse cases from other child abuse cases, while others apply the any child exception to all abuse cases).\\nVillalta v. Com. , 428 Mass. 429, 702 N.E.2d 1148, 1152 (1998) ; see also United States v. Martinez , 44 F.Supp.2d 835, 837 (W.D. Tex. 1999) (\\\"[I]n a case where one spouse is accused of abusing minor children, society's interest in the administration of justice far outweighs its interest in protecting whatever harmony or trust may at that point still remain in the marital relationship.\\\").\\nCf. United States v. Strobehn , 421 F.3d 1017, 1021 (9th Cir. 2005) (holding that a defendant's letter that expressly addressed third parties in addition to his wife was not a privileged marital communication); Ellis v. State , 570 So.2d 744 (Ala. App. 1990) (holding that a suicide note to a husband discovered by the police who responded to a wife's 911 emergency call did not qualify as a confidential marital communication).\\nSee AS 18.66.990(5)(C), (D).\\nSee Dep't of Pub. Safety v. Superior Court , 411 P.3d 648, 649 (Alaska App. 2018).\\nSee State v. Ketchikan Gateway Borough , 366 P.3d 86, 90 (Alaska 2016) (internal citations omitted).\\nSee SLA 1996, ch. 64 \\u00a7 33, 70; see also Governor's Transmittal Letter for House Bill 314, 1996 House Journal 2546-47 (Jan. 26, 1996) (introduced as House Bill 454).\\nSee Sponsor Statement of Rep. Sean Parnell for H.B. 314, 19th Legis. (February 12, 1996).\\nSLA 1996, ch. 64 \\u00a7 33.\\nSee Model Code on Domestic and Family Violence \\u00a7 215 (Nat'l Council of Juvenile and Family Court Judges 1994), available at http://www.ncjfcj.org/resource-library/publications/model-code-domestic-and-family-violence.\\nId. \\u00a7 102.\\nId. \\u00a7 215.\\nId. \\u00a7 215. (Emphasis added.) We note that this provision was misquoted in the appellate briefing before this Court.\\nSee id. \\u00a7 102 cmt. (acknowledging that \\\"[t]he definition of family or household member is broad. Cohabitation is not a prerequisite for eligibility; and the relationship between the victim and the perpetrator need not be current.\\\").\\nThis definition is taken from an out-of-state case with different statutory definitions. See Scott v. Shay , 928 A.2d 312, 314-16 (Penn. Super. Ct. 2007).\\nBates v. State , 258 P.3d 851, 862 (Alaska App. 2011) (citations omitted).\\nId. at 861 ; see also Cal. Fam. Code \\u00a7 6210 and Cal. Penal Code \\u00a7 243(f)(10) (defining \\\"dating relationships\\\" broadly as \\\"frequent, intimate associations primarily characterized by the expectation of affection or sexual involvement independent of financial considerations\\\").\\nLeu v. State , 251 P.3d 363, 369 (Alaska App. 2011).\\nRichart v. State , 2001 WL 1299120, at *3 (Alaska App. Oct. 24, 2001) (unpublished); see also Miller v. State , 312 P.3d 1112, 1116 (Alaska App. 2013) (noting that a single consensual sexual encounter does not amount to a \\\"sexual relationship\\\" under AS 18.66.990(5) ).\\nSee AS 11.41.434(a)(3)(B) ; AS 11.41.436(a)(5)(B). As a general matter, the age of consent in Alaska is 16 years old.\\nState v. Jackson , 776 P.2d 320, 328 (Alaska App. 1989).\\nId.\\nWe note that those protections would include being able to apply for a domestic violence protective order should the relationship turn violent. See AS 18.66.100(a) (\\\"A person who is or has been a victim of a crime involving domestic violence may file a petition in the district or superior court for a protective order against a household member.\\\").\\nAS 18.66.990(5)(D). We note that Mrs. Anderson argues that the \\\"or\\\" in this statutory subsection should be interpreted to mean that only adults in sexual relationships with other adults qualify as household members and only minors in sexual relationships with other minors qualify as household members. But such a reading would be contrary to the meaning of the other subsections, which are structured similarly and clearly intend \\\"adults or minors\\\" to also include adults and minors. See, e.g. , AS 18.66.990(5)(B) (\\\"household member\\\" includes \\\"adults or minors who live together or have lived together\\\"); AS 18.66.990(5)(E) (\\\"household member\\\" includes \\\"adults or minors who are related to each other up to the fourth degree of consanguinity, whether of the whole or half blood or by adoption\\\"); AS 18.66.990(5)(F) (\\\"household member\\\" includes \\\"adults or minors who are related or formerly related by marriage\\\").\\nGriswold v. City of Homer , 925 P.2d 1015, 1019 (Alaska 1996) ; Concerned Citizens of South Kenai Peninsula v. Kenai Peninsula Borough , 527 P.2d 447, 452 (Alaska 1974).\\nCf. Goodno, supra note 16, at 22-23 (discussing the public policy reasons for adopting an \\\"any child\\\" exception to marital privileges and noting the particular need for such an exception in sexual abuse cases involving young children where the victims will often be developmentally unable to act as witnesses in court and the need for relevant testimony from a reluctant spouse may be that much greater).\\nSee Y.J. v. State , 130 P.3d 954, 959 (Alaska App. 2006) ; Daniels v. State , 681 P.2d 341, 344, 345 (Alaska App. 1984) ; see also Osborne v. State , 623 P.2d 784, 787 (Alaska 1981) ; Loesche v. State , 620 P.2d 646, 649 (Alaska 1980).\"}"
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+"{\"id\": \"12577822\", \"name\": \"Silvia V. TOBAR, Appellant, v. REMINGTON HOLDINGS LP and Liberty Insurance Company, Appellees.\", \"name_abbreviation\": \"Tobar v. Remington Holdings LP\", \"decision_date\": \"2019-08-30\", \"docket_number\": \"Supreme Court No. S-17027\", \"first_page\": \"747\", \"last_page\": \"757\", \"citations\": \"447 P.3d 747\", \"volume\": \"447\", \"reporter\": \"Pacific Reporter 3d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-09-08T21:16:17.237805+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"Before: Bolger, Chief Justice, Winfree, Stowers, Maassen, and Carney, Justices.\", \"parties\": \"Silvia V. TOBAR, Appellant,\\nv.\\nREMINGTON HOLDINGS LP and Liberty Insurance Company, Appellees.\", \"head_matter\": \"Silvia V. TOBAR, Appellant,\\nv.\\nREMINGTON HOLDINGS LP and Liberty Insurance Company, Appellees.\\nSupreme Court No. S-17027\\nSupreme Court of Alaska.\\nAugust 30, 2019\\nSilvia V. Tobar, pro se, Anchorage, Appellant.\\nRebecca Holdiman Miller, Holmes Weddle & Barcott, P.C., Anchorage, for Appellees.\\nBefore: Bolger, Chief Justice, Winfree, Stowers, Maassen, and Carney, Justices.\", \"word_count\": \"5868\", \"char_count\": \"37223\", \"text\": \"MAASSEN, Justice.\\nI. INTRODUCTION\\nA hotel housekeeper injured her back while lifting a pile of linens. Her employer controverted benefits based on an examining doctor's opinion that she was medically stable and that the job injury was no longer the substantial cause of any disability or need for medical treatment. After a hearing, the Alaska Workers' Compensation Board decided that the woman was medically stable as of the date of the doctor's opinion and therefore not entitled to further disability payments or to benefits for permanent partial impairment. The Board also denied further medical care after the date of medical stability. The Alaska Workers' Compensation Appeals Commission affirmed the Board's decision, and the woman appealed.\\nBecause the Board's selected date of medical stability is not supported by substantial evidence in the record, we vacate the Commission's decision and remand the case to the Commission with instructions to remand the case to the Board for further proceedings.\\nII. FACTS AND PROCEEDINGS\\nA. Facts\\nSilvia Tobar worked for Remington Holdings LP as a housekeeper at the Anchorage Sheraton Hotel. With a fourth-grade education and limited English proficiency, she had worked only in housekeeping since her immigration to the United States.\\nIn late July 2013 Tobar injured her back while lifting bed linens. After a short rest she still had difficulty walking, and an ambulance took her to a hospital emergency room. An MRI showed disc bulging in her lumbar spine; she was taken off work and instructed to follow up with the Alaska Spine Institute.\\nTobar's primary provider at the Alaska Spine Institute was Shawna Wilson, a nurse practitioner, who diagnosed discogenic back pain. Wilson initially prescribed medication, referred Tobar to physical therapy, and took her off work for a month. Tobar attended physical therapy in August and September; Wilson then released Tobar to light duty work with restrictions. But Remington had no light duty work for Tobar to do, so she continued to receive disability benefits.\\nIn early October Wilson noted that Tobar felt she was \\\"getting depressed because of her pain levels and her inability to work,\\\" and later that month Wilson prescribed an antidepressant. On October 11 Tobar had an epidural steroid injection in her lower back, giving her some pain relief.\\nTwice that month Wilson answered questions from Remington's workers' compensation insurance carrier. In early October Wilson told the carrier that Tobar had not yet reached maximum medical improvement, and a few weeks later she informed the carrier that she had diagnosed a disc herniation with extrusion at L2-L3, as well as discogenic lower back pain secondary to both the herniation and an L4-L5 annular tear. It was Wilson's opinion that these diagnosed injuries were work-related.\\nTobar lost touch with the Alaska Spine Institute for the last three months of 2013; at her deposition she explained she had not understood that she needed to return to physical therapy after the epidural. Wilson did not see Tobar again until January 2014, when she warned Tobar that any improvement in her condition depended on consistent treatment. Wilson prescribed medication, referred Tobar to physical therapy three times a week for four weeks, and took her off work for another month.\\nIn February Wilson again responded to questions from the insurance carrier, informing it that Tobar would again be released to light/sedentary duty work on March 1, 2014. But Wilson was \\\"unable to determine\\\" when Tobar could be released to regular work.\\nTobar attended all the prescribed physical therapy sessions in February, reporting to Wilson at the end of the month that her pain had improved. Wilson took Tobar off work for another month, prescribed a second epidural steroid injection - administered on March 13 - and wrote a new prescription for physical therapy. Tobar attended the physical therapy evaluation on March 28; the provider planned one to three sessions per week \\\"for 6-8 weeks for up to 1 hour per session.\\\" But Remington controverted all benefits shortly afterwards, and the physical therapy provider discharged Tobar, explaining, \\\"Unfortunately her workman's comp case has been controverted. Thus we will discharge her from skilled PT.\\\"\\nRemington's controversion was based on a March 20 employer's medical evaluation (EME) by Dr. Scot Youngblood. Dr. Youngblood's EME report shows that he was provided medical records only through October 23, 2013, five months earlier; the insurance carrier's cover letter, dated January 2014, informed him that Tobar's \\\"last visit was October 23, 2013, and she has had no further treatment.\\\" Dr. Youngblood learned during the evaluation, however, that Tobar had in fact been receiving further treatment; he wrote that Tobar informed him about the \\\"second epidural steroid injection performed at the Alaska Spine Institute\\\" just seven days earlier; that she had attended physical therapy in February; and \\\"that she is to continue to follow up with the Alaska Spine Institute,\\\" where \\\"[a]dditional physical therapy and injections are evidently planned.\\\" In his own examination of Tobar, Dr. Youngblood concluded that the July 2013 accident had caused a lower back strain, although he also noted \\\"[p]ain behaviors and symptom magnification.\\\" He diagnosed Tobar with degenerative disc disease and said the work injury was not the substantial cause of her low back condition or current need for medical treatment; in his opinion she likely reached medical stability only a few weeks after the accident. Dr. Youngblood also wrote that Tobar had no permanent partial impairment as a result of the injury.\\nOn April 3 Wilson wrote that Tobar could return to work with restrictions on lifting, standing, walking, and bending/squatting. But she also cautioned: \\\"Must attend physical therapy.\\\"\\nAt this point there is an approximately one-year gap in Tobar's treatment records. In the spring of 2015 she began seeing providers at Providence Family Medicine Center, obtaining mental health counseling there as well as treatment for her back. Dr. Kathryn Turner prescribed medications for chronic back pain and also tried osteopathic manipulative therapy in late May 2015, but she then deferred further therapy until Tobar could obtain insurance.\\nIn February 2016, after Tobar had apparently been found eligible for Medicaid and spoken with an attorney about her worker's compensation case, she again saw Dr. Turner, who arranged for an updated MRI. The MRI showed mild spinal stenosis at L1-L2 as well as disc-related problems at L2-L3 and L4-L5. Dr. Turner referred Tobar to physical therapy, which she attended a total of 15 times over the course of two or three months. Tobar also received counseling at Providence Family Medicine Center for depression. She and some of her medical providers observed a connection between her mental state and her pain: she reported that counseling helped with pain relief, and at least one doctor referred her to a psychiatrist specifically because he thought improving her mood would help with the pain.\\nDr. Turner and other providers at Providence Family Medicine Center continued to treat Tobar for lower back pain at least through October 2016. Tobar's pain did not significantly improve during that time, however, and in October 2016 she began to see Kimberly Hand, a physician's assistant at Anchorage Fracture & Orthopedic Clinic. Hand believed that some of Tobar's symptoms corresponded to what was shown in her MRI and some did not, and that part of Tobar's problem might be deconditioning. She referred Tobar for physical therapy and massage therapy, and Tobar again attended most of the prescribed sessions. In April 2017 Hand answered \\\"yes\\\" to a question from Remington's attorney asking whether Tobar's symptoms had \\\"remained the same without any improvement for over 45 days.\\\"\\nHand referred Tobar to Dr. Jared Kirkham, who performed another epidural steroid injection in February 2017. Dr. Kirkham observed \\\"pain behavior\\\" and additionally noted kinesiophobia as a concern. He did not believe Tobar needed surgery, finding \\\"the structure of [her] spine\\\" to be \\\"actually quite good.\\\" He diagnosed chronic low back pain, which he thought might be \\\"myofascial in etiology and certainly perpetuated by [Tobar's] chronic pain syndrome, central pain hypersensitivity, and kinesiophobia.\\\" In his opinion, Tobar could return to work \\\"as she tolerates.\\\"\\nDr. Kirkham arranged a functional capacity evaluation at Tobar's request. The evaluation showed that she was limited in some areas, such as bending, kneeling, and squatting; the evaluation placed her in the \\\"sedentary\\\" physical demands classification.\\nB. Proceedings\\nIn late February 2015 Tobar, through an attorney, filed a written claim seeking temporary total disability benefits from the date of the injury, medical costs, and permanent partial impairment benefits. In its answer Remington admitted temporary total disability only through August 12, 2013, a date consistent with the estimated date of medical stability in Dr. Youngblood's EME report, as well as medical and transportation costs through the date of his report - March 20, 2014 - with some qualifications. Remington denied that Tobar was entitled to any other benefits and raised as an affirmative defense that she had already been overpaid.\\nThe parties attempted to settle Tobar's claim without success, and the Board held a hearing in June 2017. Tobar's attorney had withdrawn the year before, and the hearing transcript reflects that Tobar represented herself with the assistance of her sister and a Board-supplied interpreter. No witnesses testified, but both Tobar and Dr. Youngblood had been deposed.\\nBecause Tobar's deposition had been taken almost two years earlier, it contained little information about her condition at the time of the hearing. She had testified that she was able to cook on days when she was not in too much pain, that she was generally able to take care of herself, but that it was hard to bend to change her grandchild's diaper. Her deposition testimony gave few details about her medical care other than that she had seen Dr. Turner and been prescribed medication.\\nDr. Youngblood's deposition testimony was consistent with his EME report, though he updated some of his opinions after looking at more recent MRIs and medical records. He diagnosed degenerative disc disease. He agreed that Dr. Kirkham's MRI showed disc bulging and herniation, but in his view it was \\\"very difficult\\\" to tell when it happened. He continued to believe the work injury was not the substantial cause of Tobar's medical issues, that any problem from the work injury had quickly resolved, and that Tobar had no resulting permanent impairment.\\nThe Board decided that Tobar was not entitled to benefits after March 20, 2014, the date of Dr. Youngblood's EME report. Its findings of fact summarize medical evidence but do not assign particular weight to any of it; they do not mention Tobar's March 2014 epidural steroid injection or that month's prescription for physical therapy. The Board found Tobar \\\"credible with regard to subjective descriptions of her pain and the events and circumstances of her injury,\\\" but it made no other explicit credibility determinations. It rejected Dr. Youngblood's opinion that Tobar was medically stable in August 2013, writing that \\\"the medical evidence supports [Tobar's] contention that the symptoms continued beyond that [date].\\\"\\nWith regard to temporary total disability benefits, the Board decided that Tobar had attached the presumption of compensability and that Remington had rebutted it. The Board noted that Tobar \\\"suffered from subjective pain not explained by objective findings, and may have been psychologically prone to increased pain perceptions\\\"; it said that \\\"[t]hese facts increase the complexity of the medical facts\\\" such that \\\"expert opinions from medical professionals are needed to address these issues.\\\" It then said that (1) no medical opinion after the date of the EME indicated that the disability and need for medical treatment were due to the work injury, and (2) Hand's and Dr. Kirkham's opinions were \\\"generally consistent\\\" with Dr. Youngblood's statements because both of them thought Tobar's pain \\\"was in part psychologically based.\\\" The Board concluded, \\\"After the date of Dr. Youngblood's examination, [Tobar] is unable to prove by a preponderance of the evidence that the work injury was the substantial cause of her disability or need for treatment.\\\"\\nTurning to the question of permanent partial impairment, the Board noted that \\\"[m]edical stability is presumed after 45 days without objectively measurable improvement\\\"; that Dr. Youngblood had opined that Tobar \\\"was medically stable two weeks after the work injury\\\"; that Dr. Kirkham had not seen \\\"the need for any further interventional procedures\\\" for Tobar's back; and that nothing in the evidence rebutted the presumption of medical stability. Observing that \\\"[t]he only [permanent partial impairment] rating [Tobar] has received was from Dr. Youngblood, who stated she did not have any permanent impairment related to the injury,\\\" the Board concluded that Tobar was not entitled to permanent partial impairment benefits.\\nOn the subject of medical benefits, the Board reiterated its conclusion that Tobar \\\"was medically stable at the time of Dr. Youngblood's examination\\\" and its mistaken finding that \\\"[n]o physician has recommended additional treatment since that time.\\\" The Board found that Tobar had not produced the evidence necessary for a claim for palliative care and determined that no medical benefits were \\\"required for the process of recovery . after the date of medical stability.\\\"\\nTobar appealed to the Commission, still representing herself and supplying her own interpreter at oral argument. She argued that she remained disabled by the work injury; that the Board had not adequately considered Wilson's opinions; and that she had \\\"unanswered questions\\\" after her attorney withdrew and was under the mistaken impression that the Board had more of her records than it did. She disagreed with Dr. Youngblood's diagnosis and disputed Dr. Kirkham's opinion, which she understood as saying that her \\\"pain was for depression.\\\"\\nThe Commission affirmed the Board's decision. It determined that Tobar had not met her burden of proof \\\"because the medical evidence to date demonstrates that the work injury resolved without the need for ongoing medical treatment.\\\" Citing the statutory definition of medical stability, the Commission agreed with the Board that Tobar had failed to carry her burden of proof on her claim for temporary total disability benefits because there was no clear and convincing evidence that could overcome the presumption of medical stability. The Commission noted what it believed to be Tobar's failure to \\\"seek medical treatment, including physical therapy,\\\" for two years following Dr. Youngblood's evaluation, as well as Tobar's report to Hand in January 2017 that \\\"her lumbar spine symptoms had not changed in the last three years.\\\" The Commission concluded that the evidence did not support a claim \\\"for further medical treatment\\\" because no doctor thought Tobar needed surgery or other interventions; Dr. Kirkham's only recommended treatment was for depression, and he \\\"placed no limitations on Ms. Tobar returning to work.\\\" The Commission also decided that Tobar had not met her burden of proof for permanent partial impairment, relying, like the Board, on Dr. Youngblood's opinion that her injury had resolved soon after it occurred.\\nFinally, the Commission observed that Tobar had not provided the Board \\\"with any medical testimony showing a need for medical treatment as a result of the 2013 work injury\\\" and that she was unable to point to any particular medical evidence the Board misunderstood or failed to consider. The Commission affirmed the Board's decision as \\\"supported by substantial evidence in the record as a whole.\\\"\\nTobar appeals.\\nIII. STANDARDS OF REVIEW\\nIn an appeal from the Commission, we review the Commission's decision. We independently review the Commission's conclusion that substantial evidence supports the Board's findings of fact by independently reviewing the record and the Board's findings. \\\"Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.\\\" \\\"Whether the quantum of evidence is substantial is a question of law.\\\" \\\"Whether the [B]oard made sufficient findings is a question of law that we review de novo.\\\"\\nIV. DISCUSSION\\nA. We Decline To Dismiss Tobar's Appeal.\\nTobar argues on appeal that the Board failed to give her the assistance to which she was entitled as a self-represented litigant, primarily by failing to notify her that she could request a second independent medical evaluation (SIME) to help her fill or explain the gaps in the medical records. Remington argues that Tobar's appeal should be dismissed because she waived all issues, though it acknowledges our \\\"policy against finding unintended waiver of claims in technically defective pleadings filed by pro se litigants.\\\" Remington contends that Tobar failed to raise below the issues discussed in her brief and that the issues she does discuss are not set out in her statement of points on appeal.\\nWe decline to dismiss Tobar's appeal. We may consider \\\"new arguments or points of error that were neither raised before the trial court nor included in the points on appeal\\\" when \\\"the issue presented is '1) not dependent on any new or controverted facts; 2) [is] closely related to the appellant's trial court arguments; and 3) could have been gleaned from the pleadings, or if failure to address the issue would propagate plain error.' \\\" We have also concluded that pleadings of self-represented litigants should be held to a less stringent standard and that their briefs are to be read generously. The Commission itself uses this rule. Tobar, as a self-represented litigant, argued to the Commission that the Board had not fully considered Wilson's opinions. We conclude that this argument is sufficiently related to the focus of her appeal - the Board's failure to advise her about an SIME - that her SIME argument is preserved for our review.\\nThe Board is authorized under AS 23.30.095(k) to order an SIME \\\"[i]n the event of a medical dispute regarding determinations of causation, medical stability, . the amount and efficacy of the continuance of or necessity of treatment, or compensability between the employee's attending physician and the employer's independent medical evaluation.\\\" The date of medical stability was contested in Tobar's case, and Wilson's opinions from 2013 differed from Dr. Youngblood's on the issue. The Board decided that Tobar had become medically stable in March 2014, making Wilson's disagreement with Dr. Youngblood and her continuing treatment of Tobar in 2014 highly relevant. Concluding that the Board's slighting of Wilson's opinions and the advisability of an SIME are \\\"closely related\\\" issues for purposes of issue preservation, and finding plain errors in important factual findings in the Board's decision - affirmed by the Commission - we also conclude that it \\\"would propagate plain error\\\" if we failed to consider Tobar's appeal in this case.\\nB. The Commission Erred By Concluding That The Board's Decision Was Supported By Substantial Evidence.\\n1. The importance of the date of medical stability\\nTobar made claims for temporary total disability, permanent partial impairment, and medical benefits. A worker's eligibility for temporary total disability benefits ends at medical stability. \\\"Medical stability\\\" is defined by statute as\\nthe 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.[ ]\\nRemington conceded in its answer that Tobar was eligible for temporary total disability benefits through what it claimed to be the date of medical stability: \\\"no later than August 12, 2013, two weeks following the alleged work incident.\\\"\\nMedical stability can also affect a rating of permanent partial impairment. The Alaska Workers' Compensation Act requires that \\\"determinations of the existence and degree\\\" of permanent partial impairment be \\\"made strictly and solely\\\" under the American Medical Association Guides to the Evaluation of Permanent Impairment (the Guides). The Guides uses maximum medical improvement (MMI) as the time when an evaluation of permanent impairment can be done. \\\"The Guides has consistently evaluated different organs and body systems separately, using medical testing and examination to estimate the extent a particular organ or body system impairment limits a person's activities of daily living\\\"; thus an injured worker could reach MMI as to a particular impairment while having not yet reached medical stability. In this case, however, because Tobar claimed disability only due to her back condition, the dates of MMI and medical stability may be the same.\\nThe date of medical stability was not only important, it was also contested. Remington admitted that Tobar suffered at least a temporary disability, arguing that she was medically stable as of August 2013, whereas Tobar, by claiming continuing temporary total disability, contended that she had not yet reached medical stability.\\n\\\"Once an employee is disabled, the law presumes that the employee's disability continues until the employer produces substantial evidence to the contrary.\\\" The Board found substantial evidence to overcome this presumption in \\\"Dr. Youngblood's medical report and testimony opining that [Tobar's] injury was relatively minor, and would have resolved within two weeks.\\\" But when the Board considered the next step in its analysis - whether Tobar could prove by a preponderance of the evidence that her disability was continuing - the Board rejected Dr. Youngblood's finding of a two-week disability, deciding instead that \\\"the medical evidence supports [Tobar's] contention that the symptoms continued beyond that.\\\" There is certainly evidence supporting this finding, including Wilson's October 2013 report in which she told Remington's insurance carrier that Tobar had not yet reached maximum medical improvement and Wilson's further treatment recommendations in January, February, and March 2014.\\nThe date on which the Board settled was the date of Dr. Youngblood's EME, March 20, 2014, after which it decided Tobar was no longer entitled to benefits for temporary total disability. The Commission decided that substantial evidence supported the Board's decision, but it never identified and did not discuss the evidence supporting March 20, 2014 as the date of medical stability.\\nUltimately, while the evidence supported the Board's finding that Tobar's disability continued beyond August 2013, the question we need to consider is whether the evidence supported the Board's more specific finding that March 20, 2014, was the date on which she reached medical stability. We consider that question next.\\n2. Evidence related to the date of medical stability\\nThe Commission concluded that Tobar failed to prove by a preponderance of the evidence that her disability continued past the time of Dr. Youngblood's EME, \\\"because the medical evidence to date demonstrates that the work injury resolved without the need for ongoing medical treatment\\\" and because \\\"the evidence is that she has been medically stable for some time.\\\" The Commission noted that Tobar returned to Wilson after the EME but that, despite Wilson's referral for physical therapy, \\\"Tobar did not seek medical treatment, including physical therapy[,] for the next two years.\\\" But this observation overlooks critical facts. First, the Commission, like the Board, failed to mention the physical therapy provider's explanation why Tobar did not continue with physical therapy in April 2014: \\\"Unfortunately her workman's comp case has been controverted. Thus we will discharge her from skilled PT.\\\" (Notably, Tobar had attended all the prescribed physical therapy sessions in February, after Wilson, in January, had impressed upon her the need for consistent treatment.) Second, the Commission's statement that Tobar \\\"did not seek medical treatment . for the next two years\\\" is also clearly erroneous; Tobar's medical records show that a year after the EME she sought treatment for both her back and her mental health at Providence Family Medicine Center, where treatment was again deferred after several months only because of her lack of insurance.\\nThe Commission also found support for medical stability in the records of PA Hand. But nothing in the records indicates that Hand supported a March 2014 date of medical stability. The Commission, like the Board, summarized a January 2017 chart note as indicating that Tobar had told Hand \\\"her lumbar spine symptoms had not changed in the previous three years.\\\" The Board did not mention this evidence in its analysis of medical stability, so we cannot say whether the Board relied on it or gave it any weight. Regardless, it is not an accurate summary of the evidence: the chart note relates that Tobar reported to Hand that her pain had improved after the two epidural injections but each time had returned in about three months. The note also reflects that Tobar told Hand that \\\"all of the symptoms that [Tobar] complains of today are the same chronic symptoms that she has had since the beginning of all this.\\\" Hand's note appears to show that Tobar had the same symptoms from 2013 to 2017 but their severity came and went depending on her treatment.\\nThe Commission, like the Board, also relied on the fact that Hand checked the \\\"yes\\\" box when asked by Remington's attorney whether Tobar's symptoms had \\\"remained the same without any improvement for over 45 days.\\\" But Hand first saw Tobar in late 2016. Hand never identified a specific date of medical stability; her April 2017 statement that Tobar had not improved \\\"for over 45 days\\\" could mean that Tobar had become medically stable as recently as early 2017 - three years after the Board's selected date.\\nRemington does not identify any additional evidence that supports a March 2014 date of medical stability. Remington relies on the \\\"general consisten[cy]\\\" in the opinions of Dr. Youngblood, Dr. Kirkham, and PA Hand. Dr. Youngblood's report says that Tobar was medically stable at the time of his EME because she would \\\"likely\\\" have been medically stable two weeks after the injury, but the Board specifically rejected his opinion about a two-week recovery. Dr. Youngblood also testified that he agreed with several of Dr. Kirkham's diagnoses and some of his other observations, but Dr. Kirkham - who first saw Tobar in 2017 - did not offer an opinion about when Tobar became medically stable. And Hand's opinions, as noted above, also came three years after Dr. Youngblood's and did not purport to address the medical stability issue.\\nOur review of the medical stability finding is impeded by the Board's failure to assign weight to the medical evidence and its apparent oversight of key medical records in addition to those mentioned above. Neither the Board nor the Commission discussed Wilson's October 2013 opinions about causation or maximum medical improvement. Also missing from both decisions' analyses is any reference to Tobar's consistent participation in physical therapy in February 2014, as Wilson prescribed; this would seem to be evidence of Tobar's willingness to engage in the physical therapy Wilson recommended in April 2014, had her finances allowed it. The Board noted that Wilson ordered a second epidural steroid injection, but the Board did not identify when it was ordered or acknowledge that Tobar underwent this procedure on March 13, 2014, just a week before the date the Board selected for medical stability. The Commission said Tobar \\\"was unable to point to any particular medical evidence the Board failed to consider,\\\" but Tobar contended that the Board did not adequately consider Wilson's opinions, and this appears to be true.\\nThe Board also failed to mention Wilson's prescription for physical therapy following the second epidural or the note from the physical therapist indicating that Tobar's treatment was discontinued because of Remington's controversion. The Commission thought Tobar's failure to \\\"seek medical treatment, including physical therapy,\\\" after the EME was important, but Tobar in fact attended a physical therapy evaluation a week after the EME, was advised at that time to participate one to three times a week for six to eight weeks, but was discharged soon thereafter because of the controversion and her lack of insurance. The Board and the Commission also failed to recognize that Providence Family Medicine Center began treating Tobar for back pain in late April 2015; both the Board and the Commission observed that Tobar went for two years without seeking treatment following the EME in March 2014, but this finding was mistaken.\\nWe have said that \\\"[t]he substantial evidence test is highly deferential, but we still review the entire record to ensure that the evidence detracting from the agency's decision is not dramatically disproportionate to the evidence supporting it such that we cannot 'conscientiously' find the evidence supporting the decision to be 'substantial.' \\\" Here we have found no evidence to support the March 2014 date of medical stability selected by the Board. Wilson's opinions contradict Dr. Youngblood's assessments of medical stability, and her prescription of more physical therapy after the second epidural steroid injection implies that Tobar's condition might still have improved with further care. In other words, Wilson's opinions detract from the Board's decision about the date of medical stability, and it is troubling that the Board failed to mention, evaluate, or weigh this countervailing evidence.\\nIn sum, the Board's finding of a March 2014 date of medical stability, affirmed by the Commission, is not supported by substantial evidence. And because the Board and the Commission failed to mention relevant medical evidence - in fact relying on the absence of records for a time when there were records - and neglected to assign weight to the medical evidence it did mention, we must remand this case for further proceedings before the Board.\\nC. The Board May Order An SIME On Remand.\\nTobar's central argument on appeal is that the Board failed in its duties to her as a self-represented litigant because it did not advise her that she could request an SIME under AS 23.30.095(k). The Act authorizes the Board to order an SIME under both that statute and another, AS 23.30.110(g). Alaska Statute 23.30.095(k) permits an SIME if there is \\\"a medical dispute regarding [a] determination[ ] of . medical stability.\\\" Either party may request an SIME under AS 23.30.095(k), or the Board may order one on its own motion. The Board and the Commission have interpreted AS 23.30.110(g) as allowing the Board to order an SIME \\\"when there is a significant gap in the medical or scientific evidence and an opinion by an independent medical examiner or other scientific examination will help the board in resolving the issue before it.\\\"\\nAs we have discussed, the date of medical stability was both important and disputed in this case, and the date selected by the Board is not supported by substantial evidence. While an SIME is discretionary and not always appropriate, the circumstances of this case appear to favor its use: the claimant does not have a lawyer, she has limited English proficiency, and she apparently failed to call the Board's attention to existing medical records that were important to her case, contributing to the Board's factual errors. We are not ordering that the Board require an SIME on remand, however. Whether to do so remains subject to the Board's discretion.\\nV. CONCLUSION\\nWe VACATE the Commission's decision and REMAND the case to the Commission with instructions to remand the case to the Board for further proceedings consistent with this opinion.\\nDeconditioning is \\\"the loss of muscle tone and endurance due to chronic disease, immobility, or loss of function.\\\" Deconditioning , Miller-Keane Encyc. & Dictionary of Med., Nursing, & Allied Health (7th ed. 2003).\\nKinesiophobia is an excessive and irrational fear of physical movement \\\"resulting from a feeling of vulnerability due to painful injury or reinjury\\\"; it \\\"is found to be a central factor in the process of pain developing from acute to chronic stages.\\\" Caroline Larsson et al., Kinesiophobia and its Relation to Pain Characteristics and Cognitive Affective Variables in Older Adults with Chronic Pain , 16 BMC Geriatrics 128, 128 (July 7, 2016), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4936054/.\\nUnder AS 23.30.095(o), \\\"an employer is not liable for palliative care after the date of medical stability unless the palliative care is reasonable and necessary (1) to enable the employee to continue in the employee's employment at the time of treatment, (2) to enable the employee to continue to participate in an approved reemployment plan, or (3) to relieve chronic debilitating pain.\\\" A claim for palliative care requires \\\"a certification of the attending physician that the palliative care meets the requirements of this subsection.\\\" AS 23.30.095(o).\\nHumphrey v. Lowe's Home Improvement Warehouse, Inc. , 337 P.3d 1174, 1178 (Alaska 2014).\\nId.\\nId. at 1179.\\nId.\\nPietro v. Unocal Corp. , 233 P.3d 604, 611 (Alaska 2010) (alteration in original) (quoting Leigh v. Seekins Ford , 136 P.3d 214, 216 (Alaska 2006) ).\\nMitchell v. Mitchell , 370 P.3d 1070, 1083 (Alaska 2016).\\nO'Callaghan v. State , 826 P.2d 1132, 1133 n.1 (Alaska 1992) (alteration in original) (quoting Sea Lion Corp. v. Air Logistics of Alaska, Inc. , 787 P.2d 109, 115 (Alaska 1990) ).\\nHymes v. Deramus , 119 P.3d 963, 965 (Alaska 2005).\\nSee, e.g. , Khan v. Adams & Assocs. , AWCAC Dec. No. 57 at 6 (Sept. 27, 2007) (\\\"We read the briefs of pro se litigants generously.\\\").\\nThe Board's regulation about SIMEs under AS 23.30.095(k) allows the parties to request an SIME, but it also permits the Board to order an SIME on its own motion if it deems an SIME necessary. 8 Alaska Administrative Code (AAC) 45.092(g) (2011). The Board has raised the need for an SIME on its own even when both parties are represented by counsel. Jennings v. Safelite Auto Glass , AWCB Dec. No. 12-0014 at 2, 12 (Jan. 13, 2012) (raising sua sponte whether medical examination under AS 23.30.110(g) or SIME under .095(k) was needed).\\nAS 23.30.185.\\nAS 23.30.395(28).\\nAS 23.30.190(b).\\nUnisea, Inc. v. Morales de Lopez , 435 P.3d 961, 965 (Alaska 2019).\\nId. (\\\"Because a single work-related injury can affect more than one body system or cause more than one condition, medical stability and MMI may not always be coextensive.\\\").\\nGrove v. Alaska Constr. & Erectors , 948 P.2d 454, 458 (Alaska 1997).\\nAS 23.30.122 (\\\"The board has the sole power to determine the credibility of a witness. A finding by the board concerning the weight to be accorded a witness's testimony, including medical testimony and reports, is conclusive .\\\"); see also AS 23.30.128(b) (\\\"The board's findings regarding the credibility of testimony of a witness before the board are binding on the commission.\\\").\\nDr. Youngblood's report shows that Tobar informed him of both the second epidural injection and the February physical therapy; his report also mentions Wilson's diagnoses and her opinion of causation.\\nShea v. State, Dep't of Admin., Div. of Ret. & Benefits , 267 P.3d 624, 634 n.40 (Alaska 2011) (emphasis in original) (quoting Universal Camera Corp. v. Nat'l Labor Relations Bd. , 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456 (1951) ).\\nSee AS 23.30.095(k) (setting out circumstances when \\\"the board may require\\\" an SIME); AS 23.30.110(g) (requiring an employee to submit to a physical examination \\\"which the board may require\\\").\\n8 AAC 45.092.\\nBah v. Trident Sea foods Corp. , AWCAC Dec. No. 073 at 5 (Feb. 27, 2008); see Hulshof v. Spenard Builders Supply , AWCB Dec. No. 02-0242 at 4-5 (Nov. 26, 2002) (finding that medical records did not clearly establish causation, impairment, or medical stability and deciding that conflicting medical opinions were not needed \\\"to trigger [the Board's] authority (or responsibility)\\\" to appoint an SIME under AS 23.30.110(g) ).\"}"
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+"{\"id\": \"1260785\", \"name\": \"Harold R. JONAS, Plaintiff, v. BANK OF KODIAK, an Alaska Banking Corporation, and Fidelity-Phenix, a Foreign Insurance Corp., Defendants\", \"name_abbreviation\": \"Jonas v. Bank of Kodiak\", \"decision_date\": \"1958-10-24\", \"docket_number\": \"No. K-12876\", \"first_page\": \"755\", \"last_page\": \"758\", \"citations\": \"17 Alaska 755\", \"volume\": \"17\", \"reporter\": \"Alaska Reports\", \"court\": \"Alaska District Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T18:14:33.343715+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Harold R. JONAS, Plaintiff, v. BANK OF KODIAK, an Alaska Banking Corporation, and Fidelity-Phenix, a Foreign Insurance Corp., Defendants.\", \"head_matter\": \"166 F.Supp. 739\\nHarold R. JONAS, Plaintiff, v. BANK OF KODIAK, an Alaska Banking Corporation, and Fidelity-Phenix, a Foreign Insurance Corp., Defendants.\\nNo. K-12876.\\nDistrict Court, Alaska. Third Division, Anchorage.\\nOct. 24, 1958.\\nJohn S. Mansuy, Jr., Kodiak, Alaska, for plaintiff.\\nDavis, Hughes & Thorsness, Anchorage, Alaska, for defendant Bank of Kodiak.\\nJohn C. Dunn, Anchorage, Alaska, for defendant Fidelity-Phenix.\", \"word_count\": \"567\", \"char_count\": \"3521\", \"text\": \"McCARREY, District Judge.\\nThis action arose when the plaintiff filed a complaint against the defendant Bank of Kodiak and defendant Fidelity-Phenix Insurance Company in order to collect on a policy of marine insurance.\\nThe case was set for trial at Kodiak at the request of the plaintiff who resided in Kodiak. Neither defendant seriously objected to the trial setting in Kodiak.\\nThis court takes judicial notice of the fact that there is but one attorney in Kodiak. This necessitates travel expenses for most attorneys whenever trials are held in Kodiak, and, in this case, as the only attorney in Kodiak was representing the plaintiff, the defendant, of necessity, retained other counsel.\\nDefendant Fidelity-Phenix Insurance Company prevailed at the trial and, in conformance with Rules 13 and 25 of the Uniform Rules of tire District Court for the District of Alaska, it applied to the clerk of this court for an order taxing its costs to the plaintiff. The costs were listed as $500 attorney's fee, $69.30 round-trip airline ticket Anchorage to Kodiak, $5.60 cab and bus fares to and from the airports in Anchorage and Kodiak, and $20 hotel room and meals in Kodiak. The clerk disallowed all the items as costs except the $500 attorney's fee, citing two Alaska cases as authority: Humphries v. Starns, 1949, 87 F.Supp. 374, 12 Alaska 535, and Roden v. Empire Printing Co., 1955, 135 F.Supp. 665, 16 Alaska 28.\\nThis court is of the opinion that the case of Humphries v. Starns, 1949, 87 F.Supp. 374, 12 Alaska 535, is not in point because the factual situation in that case does not indicate whether the Kansas attorney actually performed the claimed travel to Alaska. The court in the Humphries case, supra, did not promulgate a dictum indicating whether it would have awarded attorney travel expenses if the attorney had proved that he actually had performed the travel claimed. However, the court noted that there was no provision for attorney travel expenses under any Alaska statute. The Alaska statute governing attorney fees, Sec. 55-11-55, A.C.L.A.1949, does not mention traveling expenses for attorneys, and, as other taxable costs are specifically set out in the statute, it would seem that the Territorial Legislature meant to deny them.\\nThe second case cited in the clerk's decision, Roden v. Empire Printing Co., 1955, 135 F.Supp. 665, 16 Alaska 28, is in point. In that case plaintiff prevailed in a libel action .and was awarded ordinary and punitive damages. The plaintiff then asked as costs a mileage allowance for his attorneys who traveled from Anchorage to Ketchikan. The court denied this allowance stating that there was no provision in the statutes or regulations pertaining to attorney travel expenses as costs. This court feels that regardless of the fact that there is but one attorney in Kodiak, if a precedent has been set in the face of extenuating circumstances (punitive damages were recovered, supra), that precedent should be followed. If attorneys feel that their travel expenses should be taxable as costs, they should seek redress from the Legislature.\"}"
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+"{\"id\": \"1266776\", \"name\": \"UNITED STATES v. LOMEN & CO.\", \"name_abbreviation\": \"United States v. Lomen & Co.\", \"decision_date\": \"1921-11-05\", \"docket_number\": \"No. 2880\", \"first_page\": \"1\", \"last_page\": \"7\", \"citations\": \"8 Alaska 1\", \"volume\": \"8\", \"reporter\": \"Alaska Reports\", \"court\": \"United States District Court for the District of Alaska\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-11T01:57:42.951923+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"UNITED STATES v. LOMEN & CO.\", \"head_matter\": \"UNITED STATES v. LOMEN & CO.\\nNo. 2880.\\nSecond Division.\\nNov. 5, 1921.\\nWm. Fred Harrison, U. S. Atty., of Juneau, for the United States.\\nLyons & Orton, of Seattle, Wash., for defendant.\", \"word_count\": \"1784\", \"char_count\": \"10409\", \"text\": \"HOLZHEIMER, District Judge.\\nThis cause was heard on demurrer on October 29, 1921; both parties appearing by their respective counsel. After listening to the arguments and being fully advised in the premises, the court finds:\\nThis is a case brought by the United States of America against Lomen & Co., a corporation, commencing said action by a complaint, alleging, among other things:\\n(1) That on October 20, 1909, the United States was the owner of that certain herd of reindeer known as the Teller Mission Herd, consisting of 245 male and 186 female deer, being the same herd referred to in a certain contract made and entered into on the same date, to wit, October 20, 1909, marked \\\"Exhibit A\\\" and made a part of said complaint; therefore it is a component part thereof and must necessarily be taken as such and considered.\\n(2) The reindeer in question, being the property of the United States of America, and held by what is known as the Alaska mission, in trust for the United States of America, to be handled by said mission according to the terms of the aforesaid written contract.\\n(3) That, contrary to and in violation of the terms and conditions of said contract, the mission, on January 1, 1916, sold and delivered said reindeer, including the females, to Lomen & Co., and that said Lomen & Co. are unlawfully withholding said female reindeer and the increase thereof, since January 1, 1916, from the plaintiff, the United States of America, although due demand has been made upon it therefor; and praying that judgment be entered against the defendant company directing a resulting trust upon said female reindeer and the increase thereof from January 1, 1916, now in the possession of Lomen & Co., its servants, agents, and so forth, in favor of the United States, and that the United States be adjudged the lawful owner and entitled to the possession of said female reindeer and the increase thereof since January 1, 1916; that said defendant, Lomen & Co., has no right, title, and interest in and to said female reindeer, and they be compelled to account to plaintiff for said female reindeer and their increase since January 1, 1916.\\nTo this complaint the defendant interposed a demurrer alleging several grounds of demurrer; for the purpose of this opinion we will consider only one, the fourth, which goes to the heart of the action and, in the opinion of the court, is decisive.\\nThe first and all-important step to be considered is whether or not the United States of America is the owner of the female reindeer in question. We must necessarily and can only gather this from the complaint and contract, which is made a part thereof.\\nWhile it is admitted the complaint alleges this to be a fact, the contract shows that this is not true; on the contrary nowhere in said contract does it state that the United States is.the owner. Whatever deer held by the mission belonging to the United States were returned to the United States on September IS, 1905, in accordance with a previous agreement, and conclusively shows the United States of America exercised no right or ownership over the original reindeer in question, by claiming a forfeiture for the violation of any of the covenants in the agreement therein contained against all the surplus reindeer then in possession of the mission and not distributed in accordance with the terms of said .contract, then only when desired by the United States of America, especially disclaiming any ownership or right of possession to the 245 male and 186 female reindeer. So no matter if the mission violated every covenant in the agreement, the only penalty, as disclosed by the agreement, is the forfeiture of the reindeer, if any, then remaining in the hands of the mission over and above said 245 male and 186 female reindeer, which were the natural increase of said herd.\\nWhile it is true that section 6 of said agreement specifically states that the rnission shall not dispose of any female reindeer to any one except the government of the United States or the natives, and then only to natives upon written consent of the superintendent of schools or duly authorized agent of the government, placing on the same a price not to exceed $25 a head, this of itself discloses the further fact that the government did not claim actual ownership of any of the deer, increase, or otherwise, if so, why would the government have to pay not to'exceed $25 per deer if they were the owners thereof?\\nNo; these contracts were entered into by and between the government of the United States and the various missions for the purpose of general distribution of deer among the natives, protecting their welfare and educating them so that they might finally become self-supporting; the gov ernment, through its various agencies, assisting in furnishing instruction, aid, support, and sometimes reindeer to further this plan. As a consideration for this governmental help, the missions, having the same purpose in view, agreed to handle these native apprentices and distribute among them, in payment for their labor, the natural increase from their herds in accordance with the terms of their contract with the government; the government having in view, at all times, the ultimate retirement from the reindeer industry, however, exercising only the right of control and not ownership, unless for the violation of some covenant they would forfeit the increase to the government.\\nIt would be unfortunate indeed if all the other contracts are like the one before us; there is no time limit to the contract ; it is uncertain, indefinite, and necessarily bad. While this question has not been raised by either party, it appeals to the court very strongly.\\nNow this brings us to another question: Whether or not the government not being the owner of any particular herd of reindeer can prevent the owner thereof from disposing, by sale or otherwise, of their deer, whether male or female. To solve this problem, we must turn to the laws on the subject and see if Congress has passed any acts with reference thereto. I can find no law or regulation cited by either party or from personal research that would give the government that right; I can find no law that says a white man cannot own deer. There seems to have been some regulation in the early history of the industry in Alaska with reference to government owned deer and those disposed of by the government to the natives, as to the killing of females; that regulation was made for the good and wholesome reason to perpetuate propagation and successfully advance the reindeer industry in Alaska.\\nNow, if there be no law or governmental regulation against the white man owning reindeer or the selling of the same, the government is in no different position than an individual, and cannot be given any such right by the courts, either at law or in equity. This can only be done by agreement, and such agreement must be based upon a legal and reasonable consideration; certainly no one would say that the government wants something for nothing.\\nReturning to the contract under consideration, we find therein stated: That the government can, if they desire or elect, forfeit for a breach of any of the covenants of the agreement the surplus reindeer over and above the 245 male and 186 females, which are the natural increase; that is, if any there be after distribution in accordance with the terms of said agreement.\\nThis \\\"forfeiture\\\" clause admits ownership in the mission and disclaims any ownership by the government. One cannot gather from the complaint that there was a breach of any of the covenants with reference to the care and distribution, or that there was any excess left after said distribution, or that there had been any demanded back by reason of any forfeiture clause. This forfeiture clause in itself is not self-executing, as it particularly states, \\\"if the Government so desires,\\\" and such desire must be directly expressed; if there be a breach of the agreement, such a breach or expressed desire cannot be gathered from the complaint in this case. No breach of the contract having been set out or forfeiture declared, this cause of action cannot prevail.\\nHowever, I go further in deciding this demurrer, if every allegation in the complaint were true, and a breach made of every covenant in the contract, and there existed an excess in the natural increase of the mission herd (being the herd in question)', and a proper and legal forfeiture declared and demand made, what kind of a judgment could be entered and what is the penalty with reference to the 245 male and 186 female reindeer? I have been unable to reason from any allegation in the complaint or covenants in the contract any judgment that can be legally and properly entered; there are no allegations as to there being any excess deer on hand, and the last clause of the contract being as follows:\\n\\\"Twentieth: Party of the second part further agrees in case of failure to comply with any of its obligations under the provisions of this contract, or with any of the sections of the Rules and Regulations regarding the United States Reindeer Service in Alaska, or any revision thereof, from which it is not specifically relieved by the provisions of this contract to forfeit when desired by party of the first part, any or all of the reindeer then in its possession above the two hundred and forty-five (245) males and one hundred and eighty-six females to said party of the first part as may be required by party of the first part.\\\"\\nYou will observe that this specially excludes the 245 male and 186 female reindeer from any forfeiture whatsoever.\\nTake the other angle, suppose for a violation of any of the covenants, the 245 male and 186 female deer were not excluded from a forfeiture, the contract would then read \\\"forfeit any and all reindeer then in its possession, if the Government so desires.\\\"\\nNow if the deer were all sold and disposed of leaving none to forfeit, what position would the government be in with no other penalty in the agreement than the forfeiture clause; what would be its remedy? I can conceive of none from either angle, in any suit at law or in equity.\\nFor the reasons above stated, the demurrer will be sustained.\"}"
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+"{\"id\": \"1272882\", \"name\": \"MORTENSEN et al. v. LINGO\", \"name_abbreviation\": \"Mortensen v. Lingo\", \"decision_date\": \"1951-09-24\", \"docket_number\": \"No. A-6590\", \"first_page\": \"419\", \"last_page\": \"424\", \"citations\": \"13 Alaska 419\", \"volume\": \"13\", \"reporter\": \"Alaska Reports\", \"court\": \"Alaska District Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T18:51:43.312444+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"MORTENSEN et al. v. LINGO.\", \"head_matter\": \"99 F.Supp. 585\\nMORTENSEN et al. v. LINGO.\\nNo. A-6590.\\nDistrict Court, Alaska. Third Division. Anchorage.\\nSept. 24, 1951.\\nPlummer & Arnell, Anchorage, Alaska, for plaintiffs.\\nJohn E. Manders, Anchorage, Alaska, for defendant.\", \"word_count\": \"1228\", \"char_count\": \"7276\", \"text\": \"FOLTA, District Judge.\\nThis is an action for damages for breach of covenants of title.\\nOn February 20, 1941, Harry G. McCain conveyed the real property involved to E. M. Anglin. The deed was recorded in the office of the Recorder for the Anchorage recording district, in which the land lies, but not indexed as the statute directs. It is not contended that the defendant had actual notice of this conveyance. On August 18, 1947, McCain conveyed the identical property to the defendant who in turn on April 16, 1948 conveyed it by warranty deed to the plaintiffs who now allege that Anglin threatens to evict them.\\nThe plaintiffs contend that the index to deeds is no part of the recording thereof, whereas the defendant contends to the contrary and asserts that recording alone was insufficient to constitute constructive notice, particularly where the records of deeds consist, as in the Anchorage District, of more than 100' large volumes.\\nThe pertinent statutory provisions of the Alaska Compiled Laws Annotated, 1949, are as follows:\\n\\\"Separate books shall be provided by the commissioner in each recording district or precinct for the recording of deeds and mortgages, in one of which books all deeds left with such commissioner shall be recorded at full length, with the certificates of acknowledgment or proof of the execution thereon, and in the other all mortgages left with the commissioner shall in like manner be recorded.\\n\\\"The commissioner shall certify upon each conveyance recorded by him the time when it was received and the reference to the book and the page where it is recorded, and every conveyance shall be considered as recorded at the time it was so received.\\n\\\"The commissioner shall also keep a proper index, direct and inverted, to the books for the recording of deeds, and also one to the books for the recording of mortgages, in which he shall enter alphabetically the name of every party to each and every instrument recorded by him, with a reference to the book and page where the same is recorded.\\n\\\"Every conveyance of real property within the Territory hereafter made which shall not be filed for record as provided in this chapter shall be void against any subsequent innocent purchaser in good faith and for a valuable consideration of the same real property, or any portion thereof, whose conveyance shall be first duly recorded\\\". A.C. L.A. 1949, \\u00a7 22-3-22 to 22-3-25.\\nThese provisions were taken from the Code of Oregon and adopted without change by the Act of Congress of June 6, 1900, 31 Stat 321, 505.\\nThe question presented is whether a deed properly recorded in the office of the district where the land lies but not indexed is constructive notice as against subsequent innocent purchasers for value. It is obvious that this question, cannot be determined without imposing a great hardship on an innocent party.\\nIt must be presumed that in adopting these provisions for Alaska, Congress knew that in Board of Commissioners for the Sale of School Lands v. Babcock, 1875, 5 Or. 472, 473, where the identical question was involved, the Supreme Court held that the index was not a part of the record. The conflict among the authorities on this question cannot be entirely accounted for by differences in statutory provisions. What appears to be the leading case in support of the opposing view is Ritchie v. Griffiths, 1890, 1 Wash. 429, 25 P. 341, 343, 12 L.R.A. 384. The statutory provisions, so far as pertinent, provided that:\\n\\\" 'The auditor of each county in this territory shall record, in a fair and legible handwriting, in books to be provided by him for that purpose, at the expense of the county, all deeds, mortgages, and other instruments of writing required by law to be recorded, and which shall be presented to him for that purpose, and the same shall be recorded in regular succession, according to the priority of their presentation, and, if a mortgage, the precise time of the day in which the same was presented shall also be recorded. Upon the presentation of any deed,'or other instrument of writing, for record, the auditor shall indorse thereon the date of its presentation, and, when such deed, or other instrument of writing, shall be recorded, the recorder shall indorse thereon the time when recorded, and the number or letter and page of the book in which the same is recorded.' Each auditor shall, upon the written demand of any person, make out a statement in writing, certified under his hand and the seal of his office, of all mortgages, liens, and incumbrances of any kind of record in his office, in relation to any real or personal property, in relation to which the demand shall be made; and, if said statement shall be incorrect, he, and the sureties upon his official bond, shall be liable to the person aggrieved for all damages sustained by him in consequence of such incorrect statement, to be recovered in a civil action. Each county auditor shall keep a general index, direct and inverted. The index direct shall be divided into seven columns, with heads to the respective columns, as follows: (Here is a diagram of the column headings.) He shall correctly enter into such index every instrument concerning or affecting real estate, the names of the grantors being in alphabetical columns precisely similar, only that the names of the grantees shall be alphabetically arranged, and occupy the second column.\\\" [Laws Wash.Terr. 1869, p. 313, \\u00a7 18, 19, 23, 24.]\\nIt was held that these constituted a system of registration ; that they must be construed together and that when so construed all the prescribed steps, including indexing, had to be performed before the record could constitute constructive notice. The Court took occasion to point out that as records accumulate the only practical way of imparting notice to the public or finding the record affecting any particular piece of property is through the index.\\nThe reasoning of that Court appeals to me. Not only does it seem unreasonable to require each person inter ested in ascertaining the status of the title to any piece of property to examine every page of a great number of volumes, but to hold that the index, notwithstanding that it is required to be kept by statute, is no part of the record is to deny any effect to the provision requiring the maintenance of an index. I am of the opinion, therefore, that a single decision rendered 76 years ago should not be deemed controlling in an age when the tempo of life is much faster, the population more transient and real property transactions occur with such frequency that it takes hundreds of large volumes to contain the records thereof. In this situation the observation of the Court in Barney v. McCarty, 1864, 15 Iowa 510, 521, 83 Am.Dec. 427, that \\\"a deed might as well be buried in the earth as in a mass of records without a clue to its whereabouts\\\" seems particularly apt.\\nI conclude, therefore, that the recording of the deed to Anglin without indexing was insufficient to' give constructive notice to the defendant.\"}"
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+"{\"id\": \"1285340\", \"name\": \"In re KETCHIKAN DELINQUENT TAX ROLL\", \"name_abbreviation\": \"In re Ketchikan Delinquent Tax Roll\", \"decision_date\": \"1922-07-27\", \"docket_number\": \"No. 537-KA\", \"first_page\": \"653\", \"last_page\": \"669\", \"citations\": \"6 Alaska 653\", \"volume\": \"6\", \"reporter\": \"Alaska Reports\", \"court\": \"United States District Court for the District of Alaska\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T17:23:25.882130+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"In re KETCHIKAN DELINQUENT TAX ROLL.\", \"head_matter\": \"In re KETCHIKAN DELINQUENT TAX ROLL.\\n(First Division. Ketchikan.\\nJuly 27, 1922.)\\nNo. 537-KA.\\nI. Municipal Corporations &wkey;292(3), 301, 519(1) \\u2014 Taxation.\\nLess than two-thirds of the property owners along Harris street extension, Ketchikan, Alaska, petitioned the city council ' to construct the street at the cost of the property owners. The objectors did not sign the petition. The city council did not hold any hearing, or make any finding, or pass any resolution or ordinance authorizing the work, but did construct the street by contract, and thereafter by its resolution levied a special assessment upon the property abutting only on one side of the street to pay for the improvement. The objectors, Mary A. Furnivall and J. M. Peterson, appeared before the district court on application of the town to confirm the assessment and order a sale of the property to pay for the work, and filed their objections to confirmation upon the failure to comply with the statute. Section 627, Comp. Laws Alaska 1913, amended by chapter 50, Sess. Laws Alaska, 1919, Held: (1) A petition signed by two-thirds in value of the property owners is jurisdictional, and without it the proceeding is illegal as to non-consenting property owners. (2) Where an improvement of a public street in an incorporated town by assessing property owners for the cost thereof is undertaken, it must be done and authorized by a formal resolution or ordinance, and a failure to so authorize and order the improvement renders any special assessment on abutting property illegal. (3) The lien on special assessment for the improvement of a street in an incorporated town in Alaska is not against the nonconsenting owner or his right of possession, but against the property itself, and where the legal title to the property is in the United States it cannot be so assessed. \\u25a0\\n2. Municipal Corporations <&wkey;449(3), 455, 493(1), 488, 489(3) \\u2014 Sewer Assessments.\\nThe town of Ketchikan, Alaska, procured the construction of a sewer on a public street upon the petition of the property owners along the same. There was no notice given to the property owners of the contemplated construction, no hearing to determine damages or benefits, and no resolution or ordinance passed by the town council making findings or ordering and authorizing the construction of the work. After the contractor with the city had finished the work, the town council by resolution assessed the cost thereof upon the abutting property, and on application to the district court to confirm the assessment and order sale of the property to pay delinquent assessments certain property owners appeared and objected. Two of the objectors signed the petition asking for the improvement; the others did not. As to the nonpetitioning objectors, held-. (11 The property assessed must be described with reasonable certainty, and the failure to so describe it renders the assessment void. (2) Some notice must be given to nonpetitioning property owners or some opportunity to be heard before an assessment can be levied upon their property for sewers, and the property sold to pay delinquent tax. (3) Such nonpetitioning property owners have the right to object to a confirmation of assessment against their property, and to insist upon any defect in the proceedings anterior to the assessment itself, because of no ordinance or resolution providing for the improvement, which is necessary as an initiatory step under Sec. 628, Comp. Taws Alaska 1913. (4) Where a property owner, the mayor of a town, directly petitions the town council to improve the street in front of his property by constructing a sewer, and was cognizant of all the proceedings, and urged others to join in the same, and the sewer was constructed under his direct supervision, he will not be heard to object to the confirmation of the assessment and an order of sale of his property to pay . the delinquent tax.\\nOn May 20, 1922, the delinquent assessment tax roll of the city of Ketchikan for the year 1921 was presented under the provisions of chapter 69 of the Session Laws of Alaska of 1913, for adjustment and order of sale of the property therein described. At the same time there were presented several delinquent special assessment rolls for improvements made by the city under subdivision 4, section 627, Compiled Laws of Alaska 1913, and an application that an order of sale be entered of the property mentioned therein as abutting on the respective improvements.\\nNo objections were made to the general delinquent tax roll of 1921, and an order of sale was directed to issue as provided by the statute for the properties therein described on which the tax was delinquent; but objections were interposed to two of the special assessments, and the regularity of the whole proceeding leading up to the special assessment was vigorously assailed by counsel for the objectors.\\nW. H. Winston, of Ketchikan, for town of Ketchikan.\\nWickersham & Kehoe, of Juneau, for Harris street objectors.\\nA. H. Zeigler, of Ketchikan, for sewer objectors.\", \"word_count\": \"6851\", \"char_count\": \"39880\", \"text\": \"REED, District Judge.\\nThe first of these special assessments to which objection was interposed is what is called the \\\"Harris street extension\\\" or \\\"North Harris street assessment,\\\" and the second is what is commonly known as the \\\"Bawden street sewer assessment,\\\" and while the objections in each case are in most respects similar, yet the facts involved are so dissimilar that each assessment must receive a separate consideration.\\nHarris Street Extension Assessment.\\nThe objections to the assessment for this improvement are presented by Mary A. Eurnivall, claiming to be the owner of the right of purchase under the Townsite Act (26 Stat. p. 1095) of lots 1 and 3 of block 3 of the United States government addition to the townsite of Ketchikan, and lot 11, block E, of the Schoenbar addition to the city of Ketchikan, and J. M. Peterson, who claims to have the preference right of purchase under the Townsite Act aforesaid to lot 2 of block 3 of the Townsite addition.\\nThe objections presented include questions both of law and fact and are in effect: That two-thirds of the abutting owners in value along the line of the improvement did not petition therefor, as required by subdivision 4,- section 627, Compiled Raws of Alaska; that no finding was made by the common council to the effect that two-thirds of the owners in value along the line of the proposed improvement had petitioned therefor; that no ordinance or resolution was adopted by the common council providing for such improvement and assessment against the abutting owners; that the property in block 3 so assessed and owned or claimed by the objectors is the property of the United States, and therefore the land is not assessable; that the right of purchase claimed by objectors under the Townsite Act of the United States is a personal right and not a right in the property, and is therefore not assessable; that the assessment is not levied on all the property abutting on the proposed improvement, but only againgt property on the north side of the line of the improvement, nor was the assessment made according to benefits to or according to the value of the abutting property, nor was it made according to the front footage of the property abutting on the proposed improvement, but was an arbitrary assessment without regard to the value of the property or the front footage along the improvement; and that at no time were the objectors afforded an opportunity to object to or protest against the improvement referred to or to the assessment.\\nThe Harris street extension, so called, is a causeway largely built on piling along the north bank of Ketchikan creek, and.follows closely the meandering of that stream. The street at intervals extends over the stream bed, and some of the property on the north side of the extension has for a number of years been occupied as homes by residents of the city, while that on the south side .of the improvement is either in the stream bed or along a steep bluff, the side or bank of the creek.\\nIt appears from the testimony that a number of years since the land through which the Harris street extension is established was located as a mining claim, and in the course of the improvement and operation of the mining property, one Schoenbar constructed a tramway along the north bank of Ketchikan creek and practically along the line where the extension is now situated, for the purpose of transportation of ores and supplies to and from the mining property. This tram was used by the public as a means of travel, and a number of people settled on the mining claim and built their homes on the north side of the tramway.\\nIn the course of time the tramway became out of repair, and a number of the residents along the line thereof petitioned the city council of Ketchikan to improve the tramway, by constructing a street from the intersection of Harris street along the north side of Ketchikan creek to the city limits of the mean width of 20 feet. This petition was filed with the city council on January 15, 1919, but no action was taken thereon. On September 2, 1920, a second petition for improvement was filed with- the city council, praying that a temporary street be constructed and maintained for vehicle passage 16 feet in width, with a 4-foot sidewalk following the course of and upon the right of way of the Schoenbar tram. This petition was filed with the city council, but no action was taken thereon. It appears that J. M-. Peterson, one of the objectors, signed this petition. On October 5, 1920, a third petition was filed, praying the city council\\u2014\\n\\\"to construct a 16-foot plank roadway and a 4-foot sidewalk, and to lay out and establish a 40-foot right of way from present Harris street in front of the Parker House to and past the Harry Smith house, or to the city limits.\\\"\\nThe petitioners therein agreed to pay the city of Ketchikan their proportionate shares of two-thirds of the cost of the improvement and that such sums should be a lien on their respective properties. This petition was signed by eight persons, all, as appears from the testimony, residents along the north side of the proposed improvements. There were no petitioners residents or owners of property on the south side of the street. The objectors, Mary A. Fumivall and J. M. Peterson, did not sign this petition. This petition was filed with and approved by the city council on October 5, 1920.\\nThere is no affirmative action appearing of record relative to the petition of October 5, 1920, although some action must have been taken thereon, since the city engineer made a survey of the proposed improvement about that time, and a causeway or street was constructed in accordance -with plans prepared and furnished by him.\\nThereafter the city council at its regular meeting on February 2, 1921, adopted a resolution assessing the real property and possessory rights of certain named persons according to their respective alleged front footage on the northern side of and along the line of said improvement for two-thirds of the cost thereof, and provided that such assessment should be a lien on the property, payable in 10 days. No assessment was made against the property abutting on the south side of the improvement.\\nJ. M. Peterson was one of the persons named, and J. W. Furnivall was also assessed; J. W. Furnivall being the husband of Mary A. Furnivall, the objector.'\\nOn February 2, 1921, a protest was filed against said assessment by the objectors, J. M. Peterson, Mary A. Furnivall, and others, alleging that all the abutting owners had not been assessed, and that the petition under which the work was carried out had not the support of sufficient interest. This protest or remonstrance was laid on the table on March 2, 1921.\\nIt appears that in the year 1908 an application for patent from the United States was made before the United States land office for the mining claims over which the Schoenbar tram was constructed, and a certificate for patent was issued for the Florida claim, being that part of the land over which the westerly part of the tram had been constructed; while the easterly, or upper, part of the tram ran over another mining claim which was not patented, and the land therein included reverted to the United States, free from any mining claim. Lot 11 of block E, assessed to Mary A. Furnivall, is a part of the Florida claim; while lots 1, 2, and 3 of block 3, assessed to Mary A. Furnivall and J. M. Peterson, are a part of the other claim reverting to the government of the United States, and at the time the petition of October 5, 1920, was filed with the city council, and at the times of the subsequent improvement and assessment no street had been laid out over this claim, nor was the property laid out into lots and blocks. Whether Mary A. Furnivall was the owner of lot 11, block E, of what appears now to be the Schoenbar addition, at this time, does not appear from the testimony, except that in 1918 she succeeded to the rights of F. J. Furnivall thereto. It appears from the testimony that on April 15, 1921, a part of the Florida mining claim was surveyed into lots and blocks, streets and alleys, as the Schoenbar addition to the city of Ketchikan, and on the plat thereof is shown what is called \\\"North Harris street,\\\" a street from 30 to 32 feet in width, and extending along the line of the old Schoenbar tram, from the southerly side line to the easterly end line of the Florida claim. Whether or not the streets or alleys set forth on'the plat had been formally dedicated to the public is not shown by the testimony, but lot 11, block E, claimed by Mary A. Furnivall, is shown thereon as having a front footage of 37.79 feet on North Harris street.\\nOn May 31, 1921, the government completed United States survey No. 1381, which comprised part of the public domain formerly included in the abandoned mining claim hereinbefore referred to. This survey was made under the provisions of the Act of March 3, 1891, known as the Townsite Act (26 Stat. at Large, 1095), and the survey so made laid out the property included therein into streets, alleys, lots, and blocks, and is known as the \\\"Ketchikan Townsite addition.\\\" Lots 1, 2, and 3 of block 3 are shown thereon; lot 2 (claimed by Peterson) having a frontage of 34 feet, and.lots 1 and 3 (claimed by- Mary A. Furnivall) having a frontage of 42 feet and 92.68 feet, respectively, on the street therein designated as North Harris street, being the same street known as the \\\"Harris street extension.\\\" It is shown by the evidence that the title to the three lots in this addition had not, at the time of the hearing before the court, been conveyed by the townsite trustee to private owners; hence at the time of the hearing no title to the lots in the Ketchikan Townsite addition was in Peterson or in Mary A. Furnivall, but was still in the United States, the claims of Peterson and Mrs. Furnivall being merely a preference right of purchase because of occupancy of the land.\\nOn November 5, 1921, the Ketchikan Consolidated Mines Company executed a deed of right of way for a \\\"public road over a portion of the Florida mining claim covering\\u2014\\n\\\"a strip of ground beginning at tbe southerly end of Harris street, so called, where it enters the Florida mining claim, and continuing across said Florida mining claim, with a width bounded by the westerly side of said street as platted by Joseph Ulmer, O. E., on the one side and the middle of Ketchikan creek on the easterly side.\\\"\\nBy this deed an easement for right 'of way following the line of North Harris street of a varying width was conveyed to the city, but the fee still remained in the grantor.\\nThereafter, on December 21, 1921, the city council at a regular meeting adopted the following resolution assessing the property along the Harris street extension for the improvement thereof:\\n\\\"Resolution.\\n\\\"Be it resolved by the common council of the city of Ketchikan, Alaska, that, whereas a recheck has been made of assessment levifed against the property owners fronting on Harris street in said city; and whereas, such recheck has been made in accordance with established property lines fronting on said street: It is therefore hereby resolved by the common council that the resolution heretofore hereby made on the 2d day of February, 1921, be and the same is hereby repealed and set aside; said resolution levying assessments against the prbperty owners and property abutting on Harris street.\\n\\\"And it is hereby resolved, that the several sums set after the name of certain persons and the real property owners or occupied by them under possessory rights or otherwise, which property abuts on the Harris street extension in the city of Ketchikan, Alaska, be and the said sums are hereby assessed against said persons and said land owned or occupied by them-as aforesaid, for two-thirds (%) of the expense of the construction of said street, the number of front feet of property abutting upon said improvement is hereinafter more fully set forth:\\nF. J. Furnivall, 92.68 ft. frontage..................$353.10\\nJ. M. Peterson, 34 \\\" \\\" 129.50\\nF. J. Furnivall, 42 \\\" \\\" .i.......160.00\\nF. J. Furnivall, 37.79 \\\" \\\" 144.00\\n\\\"Be it further resolved, that the foregoing sums so assessed against said persons and said land abutting thereon as above set forth be and the same are hereby made a specific lien upon said land; and such assessments shall become due and payable to the city treasurer of the city of Ketchikan immediately upon the adoption and approval hereof, and from and after January 1, 1922, the same shall bear interest at the rate of 8 per cent, per annum, and said interest shall be a lien on said property abutting on said improvement. And the collection of such assessments may be enforced by suit or collected in the same manner as other delinquent taxes. '\\n\\\"And it is further resolved that all payments made on the former assessment roll shall be applied towards the payment of the above assessments.\\\"\\nThereafter the city council caused to be published a notice of application to the court for an -order of sale of the property so assessed on which the tax had not been paid. Lot 11, block E, Schoenbar addition, and lots 1, 2, and 3, block 3, Townsite addition, assessed to J. M. Peterson and E. J. Furnivall, appear-as part of this property.\\nFrom the testimony it appears that, at .the time of the filing of the petition on which the improvement was made, there was no street dedicated to the public use on which the improvement so- proposed was to be constructed; that no ordinance or resolution was adopted by the city council opening up a street or authorizing the improvement specified; that no finding was made by the city council that two-thirds of the owners. of property in value affected by or abutting on \\u2022 the proposed improvement had signed a petition therefor; that it further appears that two-thirds of the owners in value of property along the line of the proposed improvement did not petition therefor; and that the objectors, Mary A. Furnivall and J. M. Peterson, did not petition for the improvement. It further appears that, when the assessment of December 3, 1921, was made, the title to the land in the Government Town-site addition had not passed from the United States.\\nSubdivision 4 of section 627 of the Compiled Laws of Alaska provide that the common council of the city shall have power to provide for the location, construction, and maintenance of the necessary streets, alleys, crossings, sidewalks, and sewers, and if such street, alley, sidewalk, or sewer, or part thereof, is located or constructed upon the petition of the owners of two-thirds in value of the property abutting on and affected by such improvement, then two-thirds of the cost of the same may, in the discretion of the council, be collected by the assessment and levy of a tax against abutting property, and such tax shall be a lien on the same, and may be collected as other real estate taxes are collected.\\nSection 628 provides that the common council may exercise their powers by ordinance or resolution, but no ordinance or resolution shall be valid unless adopted by a vote of four members of the council at a meeting where five are present.\\nSubdivision 14 of section 627 provides that the common council may take such action by ordinance, resolution, or otherwise as may be necessary to protect and preserve the lives, health, safety, and well-being of the people of the town and to publish all ordinances.\\nThe statute authorizing the opening up and improvement of streets and assessing the cost thereof on abutting owners is general in its terms, and gives a discretion to the city council as to the assessment against abutting owners when a petition of two-thirds of the owners in value shall have been made therefor. This, discretion, however, can be exercised only when two-thirds of the owners in value of the property abutting on or affected by the proposed improvement have petitioned therefor. This necessitates, therefore, a finding by the city council that the proper number of owners have petitioned for the improvement before an assessment can be made against the property of persons not binding themselves to pay their proportionate share of the expense of the proposed improvement.\\nHad the city council, by ordinance based upon the petition, provided for the improvement and specified therein that two-thirds of the cost would be assessed against the abutting own-* ers, Hiere would arise a strong presumption that the necessary number of petitioners had prayed therefor. Here nothing was intimated by the council to the public or abutting owners not parties to the petition that their property would be assessed, and as far as their knowledge appears the city council may have proposed to construct the street at public expense.\\nIt is shown clearly that two-thirds of the property owners abutting _on the proposed Harris street extension had not petitioned therefor. This is jurisdictional, and\\\" as to the non-consenting owners the whole proceedings are illegal.\\nThe further question as to the necessity of an ordinance, while not- necessary to decision of objections in the case;i is, in my opinion, well taken.\\nThe counsel for 'the city argue that, under subdivision 14 of section 627 of the Compiled Taws above cited, it is not necessary for the city council to proceed by ordinance or resolution to construct or improve a street and assess the abutting owners for two-thirds of the cost thereof. I cannot agree with this position. Undoubtedly many cases of repair or improvement may arise when it is not necessary for the council t\\u00f3 adopt an ordinance or resolution providing therefor. These cases are where the rights of third parties or the public are not involved, or cases where the work is not chargeable against property, or whefie property rights are not involved. In many cases minor repairs may be necessary, or minor improvements made, where an ordinance or resolution authorizing such repairs and improvements is not necessary. In such cases the repairs or improvements may be made without formal declaration by the council. They may be provided for under the general authorization conferring the power to act on the municipal executive officers. This method of procedure is provided for by the statute, when it uses the word \\\"otherwise\\\"; but, where an improvement is made of a character such as the opening of a street and assessing property owners for the cost thereof, there must be a formal resolution or ordinance, preferably the latter, as provided by section 628 of the Compiled Laws. This section provides that the common council may exercise their power by ordinance or resolution. The word \\\"may,\\\" as used in the section, while permissive in form, should be construed as mandatory, where the rights of third parties or the public are involved.\\nIn the case of Supervisors v. United States, 4 Wall. 446, 18 L. Ed. 419, the Supreme Court says:\\n\\\"The conclusion to be deduced from the authorities is that, where power is given to public officers, whenever the public interest or individual rights call for its exercise, the language used, though permissive in form, is, in fact, peremptory.\\\"\\nIn Boad of Education v. DeKay, 148 U. S. 591-598, 13 Sup. Ct. 706, 709 (37 L. Ed. 573) the court states that:\\n\\\" The general rule is that, where the charter commits the decision of a matter to the council, and is silent as to the mode, the decision may be evidenced by a resolution, and, need not necessarily be by an ordinance.\\\"\\nWhen power to make improvements is conferred in general terms, the municipality may exercise the same only-by formal legislative action on the part of the city council. 28 Cyc. 992.\\nThe fourth subdivision of section 627 authorizes the city in general terms to provide for the construction of streets and improvements on assessment of two-thirds of the cost thereof, when petitioned for by a certain ownership of the property affected thereby and abutting thereon. Therefore legislative action must be taken by the city council to determine the necessity of the improvement, and a finding made by the city council that the necessary number of property owners have petitioned therefor. This can only be done by ordinance or resolution. 17 Am. & Eng. Ency. of Law, p. 236, note 2; Eckert v. Town of Walnut, 117 Iowa, 629, 91 N. W. 929.\\nThere is no showing that an ordinance or resolution was passed by the city council, either by the minutes of the council or by the oral testimony submitted at the hearing.\\nA discretion is given the city council to determine whether the cost of a public improvement shall be borne wholly by the city at large or two-thirds thereof by the abutting property. At the time the improvement is decided upon by the coun cil, it should also determine how the cost thereof should be borne. If this is not done, the whole proceeding would be left to the decision of a city council after the work is finished, without opportunity to the property owners to protest or object.\\nAs is said in Eckert v. Town of Walnut, supra:\\n\\\"If no ordinance or resolution were required in such cases [altering and establishing grades of streets], the owner of such property would he practically at the mercy of the ever-changing personnel of the city or town government, and his property rights and values might be shifted at their own sweet will, because of his inability to show their unrecorded vagaries.\\\"\\nThe case at bar shows the necessity of an ordinance. No-notice of the manner of the proposed improvement was given the objecting property owners; no opportunity to protest or object before the improvement was contracted for; an assessment was levied by a subsequent council without prior notice or any equalization or opportunity for the owners of property to be heard. The proceedings were irregular, and cannot be sustained.\\nIt further appears that the assessment as to lots 1, 2, and! 3 of block 3, Townsite addition, is against, the possessory right of F. J. Furnivall and J. M. Peterson. The former disclaims any possessory right to lots 1 and 3, and testimony shows -the-title, if in any one, is in Mary A. Furnivall.\\nSection 627, Compiled Laws, provides that the assessment shall be a lien on the property abutting on the improvement. The lien provided for in the statute is not against the owner or his right of possession of the property, which is personal, but against the property itself. The legal title to this property lies in the United States and cannot be assessed.\\nFor the reasons stated, the objections of Mary A; Furnivall and J. M. Peterson will be sustained, and the order of sale of' lot 3, block F, Schoenbar addition, \\u00e1nd lots 1, 2, and 3, block 3, Townsite addition, will be denied.\\nThe Bawden Street Sewer.\\nThe improvement was for the emplacement of a sewer following approximately the line of Bawden street, from Pine to Grant streets, and, at the intersection with the latter, entering block 23 and continuing across that block, Harris street, \\u2022and block 17, into Ketchikan creek. There is also a lateral sewer, extending from the .main sewer up Grant street, along the property of R. L- Petty, James Shelton, and A. Hendrickson.\\nAs originally petitioned for; there was contemplated a system of two sewers, following generally the line of two deep \\u00a1gulches, one of which is the sewer as at present constructed, and the other, following the course of a gulch about 50 yards to the east of the present sewer, has not been constructed, and apparently the project for a sewer down this easterly gulch has been abandoned.\\nThe objectors to the assessment and order of sale for the cost of the Bawden street sewer are R. L. Petty, J. M. Wyck\\u2022off, Mrs. M. Harvey, A. Hendrickson, James Shelton, and A. J. Groelinger. No objection is raised as to the sufficiency of the petition for the improvement; it being conceded that two-thirds in value of the property abutting on the improvement are on the petition. The objections, however, are: That no ordinance or resolution was passed by the council providing for or showing the necessity of the improvement, or providing how the same should be paid; that the property abutting on the improvement was not properly assessed according to the benefits; that the assessment was not uniform; and that no notice thereof was given. The petition for the improvement was signed by two of the objectors only, R. L. Petty and J. M. Wyckoff. None of the other objectors were parties thereto. It is shown that the assessment and lien is claimed against a lot in the Florida mining claim owned by J. M. Wyckoff, and Mrs. Mary Harvey is also assessed for 'a 'lot in the Florida mining claim. No other description or designation of the property is. given on the duplicate assessment roll, or in the notice of application for order of sale, against these two objectors, than the words: \\\"Lot-, Florida Mining Claim.\\\"\\nAs heretofore stated, under the statute the assessment is against the property abutting on the improvement, and becomes a lien on the property. It is not a personal assessment against the owners of the property. It is fundamental that, to create a lien on real estate, the property must be described with reasonable certainty, sufficient for identification. In this case, neither in the resolution levying the assessment, nor in the assessment roll, nor in the notice of the application for an order of sale, is there any description identifying the property on which the lien is claimed for which an order of sale is sought in the case of the objectors J. M. Wyckoff and Mrs. Mary Harvey. Each of them may own several lots in the \\\"Florida mining claim,\\\" any one of which might be sold under an order of sale describing the property to be sold as a lot in the Florida mining claim. The property assessed must be described with reasonable certainty. 38 Cyc. 1164. Any order of sale describing the property as shown in the assessment roll would be useless. This, in itself, is valid ground for denying the order of sale, without consideration of any further of the points raised. The objection of Mrs. Mary Harvey and J. M. Wyckoff to the order of sale will therefore be sustained, and the order denied as to them.\\nThe general objection that there was no ordinance or resolution providing for the sewer advanced in the Harris street ' extension matter applies in this, the Bawden street sewer, and, unless estopped, the objectors may raise any question in regard to the validity of the proceeding anterior to the assessment.\\nR. F- Petty, who alone of the objectors testified relative to the sewer work, was mayor of the city of Ketchikan at the time of the initiation of this sewer improvement and was one of the prime movers therein. He signed the petition therefor, induced others to join therein, and was cognizant of all the proceedings. The sewer was constructed under his direct supervision, and he well understood that it was contemplated that two-thirds of the cost of the improvement would be assessed against the abutting property. He is the owner of lots 16 and 17, block 13, fronting 100 feet on Bawden street and 100 feet'on Grant street, and his property abuts on both the main Bawden street sewer and the lateral sewer on Grant street. He comes directly under the rule announced by the Supreme Court of the United States in Shepard v. Barron, 194 U. S. 567, 24 Sup. Ct. 742, 48 L. Ed. 1115, and the authorities therein cited. The court in that case says:\\n\\\"Under some circumstances a party who is legally assessed may be held to have waived all right to a remedy by a course of conduct which renders it unjust and inequitable to others that he should be allowed to complain of the illegality. Such a case would exist if one should ask for and encourage the levy of the tax of which he subsequently complains; and some of the eases go so far in the direction of holding that a mere failure to give notice of objections to one who, with the knowledge of the person taxed, as contractor or otherwise, is expending money in reliance upon payment from the taxes, may have the same effect.\\\"\\nAs to Shelton, Hendrickson, and Groellinger being estopped a different question arises. Under the facts shown at the hearing, none of these parties were signers of the petition. There is no testimony that any of them participated in or encouraged the building of the sewer, or had any knowledge that their property was to be assessed for two-thirds of the cost of the improvement thereof. It is argued by counsel for the city that they are estopped to raise any objection because of their silence in permitting the work to proceed without raising any question as to the irregularity of the proceedings. I am unable to concur in this view of the law.\\nThe rule laid down by the authorities as to estoppel by silence is thus summed up in Tone v. Columbus, 39 Ohio St. 303, 48 Am. Rep. 438, which case is cited with approval by the Supreme Court in several leading cases:\\n\\\"When the improvement is of a public street upon which the owner's property abuts, before the duty to speak can be said to exist, which is so imperative that if he keeps silent then, he shall not afterwards be heard, it must be shown:\\n\\\"First. That he knew the improvement was being made.\\n\\\"Second. That he had knowledge that the public authorities intended, and were making the improvement upon the faith, that the cost thereof was to be paid by the abutting property owners, and that an assessment for that purpose was contemplated. Because cities may improve the public streets out of the general fund and without a special assessment.\\n\\\"Third. That he knew of the infirmity or defect in the proceedings, under which the improvement was being made, which would render such assessment invalid and which he is to be estopped from asserting.\\n\\\" 'At least, in the absence of any evidence of previous knowledge on his part of their unlawful action, he is in time with his protest, when they proceed to deprive him of his rights under such proceedings.' \\\"\\n\\\"Fourth. Some special benefit must have accrued to the owner's property, distinct from the benefits enjoyed by the citizens generally.\\\"\\nIn the case at .bar no opportunity was afforded these objectors prior to the assessment to protest against the work; no notice was given them that their property would be assessed for any part of the cost of the improvement. There is no showing by the city in the testimony that they had knowledge that the city contemplated assessing the cost of the improvement against the abutting property and there is no. showing that they had any knowledge of the defect in the proceedings. They have therefore the right to object and insist upon any defect in the proceedings anterior to the assessment itself because of no ordinance or resolution providing for the improvement and assessment of the abutting property, which I deem necessary as an initiatory step under section 628 of the Compiled Laws. The objections of James Shelton, A. Hendrickson, and A. J. Groelinger will be sustained, and the order of sale as to their property denied.\\nTurning to the objection as to the inequality of the assessment in this case, the counsel for the objectors specified several pieces of property which they allege abutted on the improvement and were not assessed by the city council in making up their assessment roll. Among these instances are the cases of Mrs. Wesley Meyers and Laura Nelson, owners of lots 1 and 2 of block 3 of the city of Ketchikan. The testimony shows that the sewer opposite this property runs through private property some 20 feet distant from the rear of the above-described lots, and that the city council considered the property of Mrs. Meyers and Laura Nelson as not abutting on the improvement, and therefore not assessable. I see no reason to differ from the view of the city council in this respect.\\nAnother instance is the case of lots 3, 4, and 5, block 22. In this case the testimony of the city engineer discloses that these lots are situated on a ridge between the two gulches heretofore mentioned, and that the natural drainage from these lots is to the eastward, to the easterly gulch, and not to' the sewer which was constructed; that it was originally intended that the sewage from these lots should be directed into the sewer contemplated to be constructed in the easterly gulch ;\\u2022. that to connect with the sewer as constructed along Bawden street would entail a prohibitive expense on the owners of the lots. It further appears that in assessing the cost of the improvement the city council took into consideration the benefit or lack of benefit to the several lots along the line of the sewer. 'In my opinion the city council was authorized to con sider the benefits or lack of benefits to each lot along the line of the sewer in making the assessment. The authorities are somewhat in conflict upon this proposition. As was stated in 28 Cyc. p. 1128:\\n\\\"In some cases it has been held that an assessment may be sustained, although it is not based upon a corresponding benefit, but such decisions are in conflict with reason and the weight of authority. The municipal authorities have, however, much discretion in determining what property is benefited by an improvement.\\\"\\nIn the case of Monk v. City of Ballard, 42 Wash. 35, 84 Pac. 399, where the ordinance provided for an assessment district and authorized the assessment of property contiguous or approximate to any street on which the line of the sewer was laid. Appellants claimed that their property -was not contiguous or approximate to any street occupied by the sewer. The court therein said:\\n\\\"Where the improvement is a sewer, it would seem there could be no intent to pay for it by a special assessment, unless the property-be so situated as to be capable of using the sewer or of deriving from its construction a special advantage different in character from that enjoyed by the public generally. In order for a sewer to be susceptible of use to a given parcel of land, there must be access from said land to said sewer without passing through the property of other individuals.\\\"\\nThis apparently was the view taken by the city council of Ketchikan, and rightfully so, in the case of the making of this assessment.\\nAs shown by the evidence, there were no special benefits to lots 3, 4, and 5 of block 22, not enjoyed by the public generally, in the construction of the sewer, and those lots should not be assessed.\\nFor these reasons, the objections of Mr. Petty to the order of sale of lots 11 and 12, block 13, are overruled, and the order of sale will issue.\\nLet findings and order issue in accordance herewith.\\n<@=3See same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes\\n<\\u00a7x=\\u00bbSee same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes\"}"
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+"{\"id\": \"6836545\", \"name\": \"ROWAN B. Sr., Appellant, v. STATE of Alaska, DEPARTMENT OF HEALTH & SOCIAL SERVICES, Office of Children's Services, Appellee\", \"name_abbreviation\": \"Rowan B. v. State, Department of Health & Social Services\", \"decision_date\": \"2015-11-25\", \"docket_number\": \"No. S-15862\", \"first_page\": \"910\", \"last_page\": \"915\", \"citations\": \"361 P.3d 910\", \"volume\": \"361\", \"reporter\": \"Pacific Reporter 3d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T20:49:54.824248+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before: STOWERS, Chief Justice, FABE, WINFREE, MAASSEN, and BOLGER, Justices.\", \"parties\": \"ROWAN B. Sr., Appellant, v. STATE of Alaska, DEPARTMENT OF HEALTH & SOCIAL SERVICES, Office of Children's Services, Appellee.\", \"head_matter\": \"ROWAN B. Sr., Appellant, v. STATE of Alaska, DEPARTMENT OF HEALTH & SOCIAL SERVICES, Office of Children's Services, Appellee.\\nNo. S-15862.\\nSupreme Court of Alaska.\\nNov. 25, 2015.\\nJosie Garton, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for Appellant.\\nLaura Fox, Assistant Attorney General, Anchorage, and Craig W. Richards, Attorney General, Juneau, for Appellee.\\nRachel Levitt, Assistant Public Advocate, Palmer, and Richard Allen, Public Advocate, Anchorage, Guardian Ad Litem.\\nBefore: STOWERS, Chief Justice, FABE, WINFREE, MAASSEN, and BOLGER, Justices.\", \"word_count\": \"3172\", \"char_count\": \"19836\", \"text\": \"OPINION\\nFABE, Justice.\\nI. INTRODUCTION\\nA father appeals the termination of his parental rights to his three biological children. The children were adjudicated children in need of aid based on findings that the father had sexually and physically abused his daughters. In a criminal proceeding the father was convicted on 29 counts of sexual abuse of a minor in the first degree and one count of incest. The father sought a delay of the termination proceedings pending appeal of his criminal convictions, but the superior court denied this continuance request. The father appeals, arguing that the superior court abused its discretion by denying the request. Because the superior court did not abuse its discretion in concluding that the children's interest in permanency weighed heavily against delaying the termination proceedings for years while the father pursues his criminal appeal, we affirm.\\nII. FACTS AND PROCEEDINGS\\nRowan B., Sr. and Risa F. are the divorced parents of three children: Agnes, Rowan Jr. (Junior), and Saul. After Rowan and Risa divorced, Rowan received custody of their three children as well as custody of Risa's two older daughters, Aeryn and Reagan. Aeryn and Reagan have now reached the age of majority.\\nIn 2012 Aeryn reported to the police and the Office of Children's Services (OCS) that she and Reagan had been physically and sexually abused by Rowan over an extended time period. Aeryn also expressed her concern that Rowan was sexually abusing Agnes. OCS filed an emergency custody petition and removed the minor children-Agnes, Junior, and Saul-in June 2012.\\nThe superior court held a contested adjudi-eation proceeding in January and February 2018. Aeryn and Agnes both testified about Rowan's sexual and physical abuse. Noting that he potentially could face eriminal charges, Rowan chose not to testify at the adjudication proceedings.\\nAt the conclusion of the adjudication proceedings, the superior court found that Rowan had sexually and physically abused Aeryn and Agnes. Relying on Aeryn's and Agnes's testimony the court found that Rowan had threatened to kill Aeryn and Agnes if they told anyone about the abuse. The court adjudicated Agnes, Junior, and Saul children in need of aid based on Rowan's physical and sexual abuse of Agnes and on Junior's and Saul's \\\"repeated exposure to this severe abuse.\\\"\\nRowan appealed the CINA adjudication, in part challenging the superior court's denial of certain discovery requests. We conelud-ed that it was error to deny Rowan's discovery requests without properly applying the Alaska Civil Rules, and we therefore remanded for resolution of Rowan's discovery requests. \\\"On remand the superior court obtained, reviewed, and made available the various discovery items\\\" and \\\"invited supplemental briefing,\\\" but Rowan failed to respond. We onee again addressed the CINA adjudication and affirmed, after concluding that \\\"the superior court's determination that Rowan sexually abused the children or placed them at risk of sexual abuse, is not clearly erroneous.\\\"\\nAfter the CINA adjudication, Rowan was charged in a separate criminal proceeding for his sexual abuse of Aeryn, Reagan, and Agnes. A jury convicted Rowan of 29 counts of first degree sexual abuse of a minor and one count of incest. He was sentenced to a composite term of 268.5 years with 107 years suspended and 161.5 years to serve. Rowan is appealing his criminal convictions.\\nIn April 2014 OCS petitioned to terminate Rowan's and Risa's parental rights. In his trial brief Rowan requested that the superior court hold its ruling \\\"in abeyance\\\" while Rowan appealed his criminal convictions, arguing that \\\"the reversal of the convictions could significantly change [Rowan's] ability to participate in the case plan.\\\" The superi- or court ordered supplemental briefing to obtain legal argument addressing Rowan's request.\\nIn a supplemental brief Rowan argued that a delay of the termination trial pending his criminal appeal could affect the outcome of the proceedings if his convictions were reversed and would not prejudice the children:\\n[The state's evidence against [Rowan] consists of the judgment in the criminal case. There is a pending appeal of the convietion. The conduct in the criminal case is essentially the same conduct that was alleged in the Child in Need of Aid matter. A reversal of the conviction could result in the discovery of new information regarding the allegations which are the basis of both the Child in Need of Aid matter and the criminal matter. The children are in a stable family placement, a placement which is not in jeopardy if the trial regarding [Rowan] is held in abeyance.... [The court has the discretion to hold the trial in abeyance pending the outcome of a significant criminal case, and must evaluate in each case whether [to] hold{[ ] the trial in abeyance pending the outcome of the erim-inal matter.\\nOCS responded, asserting that Rowan's \\\"appeal of his criminal case has little to do with the evidence before the court because the department is not relying solely on his convictions of sexual abuse of a minor.\\\" OCS explained that the superior court had \\\"heard direct testimony and evidence of the sexual abuse and physical abuse by [Rowan] . and the continued safety risks to the children.\\\" OCS noted that a trial court must hold a termination trial within six months of OCS petitioning to terminate parental rights unless the court finds good cause for a continuance, \\\"taking into consideration the age of the child and the potential adverse effect that a delay may have on the child.\\\" And OCS argued that Rowan's \\\"last minute request to continue the trial or to hold the findings in abeyance for an indeterminate period of time, while he exhausts all eriminal appeals and post-conviction relief options available to him, is not in the children's best interest.\\\"\\nThe guardian ad litem (GAL) similarly argued that \\\"the mere fact that [Rowan] has appealed his conviction does not constitute good ecause for continuing this matter.\\\" The GAL explained that the superior court \\\"need not rely upon the fact of [Rowan's] incarceration to adjudicate the children to be children in need of aid\\\" because the court \\\"heard clear and convincing evidence of the harm that [Rowan] caused and the danger that he poses to his children.\\\" The GAL argued that the children needed \\\"a sense of safety and security\\\" and that Rowan failed to show good cause to indefinitely continue the termination trial during the pendency of his criminal appeal.\\nThe superior court proceeded with the termination trial in January and February 2015. During the trial Rowan again asserted that a continuance was warranted because OCS sought termination based on the same conduct that had been addressed in his criminal case, and because his ability to defend against the abuse allegations was constrained by his pending criminal appeal and \\\"the potential Fifth Amendment implications.\\\" Rowan estimated that \\\"a year and three quarters to two years\\\" would be enough time to conclude his criminal appeal.\\nThe superior court denied the continuance request, noting that Rowan had requested a continuance for a speculative time period, that a continuance would delay permanency for the children, and that \\\"[tlo delay that permanency for these children I don't think is in their best interests.\\\" The court also explained that it terminated Rowan's parental rights based on independent evidence of sexual abuse and that it did not believe that a reversal in Rowan's criminal appeal would entitle him to further termination proceedings. The court finally noted that exercising his Fifth Amendment privilege against self-incrimination had put Rowan \\\"in a difficult position,\\\" but the court ultimately concluded that \\\"the best interests of the children are paramount, and it's their interest that the court has to be looking at primarily in deciding whether or not extensive stays of a termination proceeding are warranted.\\\"\\nRowan appeals, arguing that the superior court abused its discretion by denying his continuance request.\\nIII. STANDARD OF REVIEW\\n\\\"We review a denial of a motion to continue for 'abuse of discretion, determining whether a party has been deprived of a substantial right or seriously prejudiced by the lower court's ruling.' \\\" \\\"We will consider 'the particular facts and cirenmstances of each individual case to determine whether the denial was so unreasonable or so prejudicial as to amount to an abuse of discretion. \\\"\\nIV. DISCUSSION\\nAlaska Statute 47.10.088(J) provides that in the absence of good cause for delay, a termination trial must commence within six months after the filing of the petition to terminate parental rights:\\nNo later than six months after the date on which the petition to terminate parental rights is filed, the court before which the petition is pending shall hold a trial on the petition unless the court finds that good cause is shown for a continuance. When determining whether to grant a continuance for good cause, the court shall take into consideration the age of the child and the potential adverse effect that the delay may have on the child. The court shall make written findings when granting a continuance.! [ ]\\nRowan argues that the superior court's denial of his continuance request was an abuse of discretion because he \\\"was seriously prejudiced by the denial.\\\" Pointing to the fundamental right \\\"to care and custody of one's own child,\\\" Rowan asserts that there was good cause to continue the termination trial because his parental rights were terminated based on the same conduct addressed in his criminal case and because he was unable \\\"to f[rleely and fully litigate the allegations of abuse.\\\" But our prior decisions on this issue do not support Rowan's claim.\\nIn R.F. v. S.S., RF. had been convicted of murdering his child's mother, and his motion for a new trial in the criminal case had been denied and was on appeal. After conducting a separate termination trial the superior court terminated. R.F.'s parental rights; R.F. appealed, arguing that the court \\\"should not [have] consider{ed] terminating his parental rights until after\\\" a decision issued on his appeal of the denial of the motion for a new trial. We disagreed, explaining that \\\"the best interests of the child are paramount\\\" and that \\\"[to leave a child in limbo during his formative years based upon the slim chance that R.F. may prevail on one of his many possible post-conviction relief measures contravenes the primary purpose of Alaska's adoption statute: to advance the best interests of the child.\\\" We noted with approval the superior court's conclusion that the benefit of permanency for R.F.'s son \\\"strongly outweighed R.F.'s interest in waiting until after further post-conviction appeals have been heard.\\\"\\nSimilarly, in A.A. v. State, Department of\\nFamily & Youth Services, we emphasized that the child's best interests are paramount during termination proceedings. AA. had been convicted of murder and an appellate court had reversed his conviction. Because of the reversal, A.A. requested a continuance of his termination trial until after his new murder trial. The superior court denied AA's continuance request and terminated his parental rights, noting that the termination decision was not based on the murder conviction and was instead based on other instances of A.A.'s violent behavior. We affirmed, explaining that \\\"a trial court should have the discretion to proceed to a termination trial. without a final ruling on a parent's criminal appeal\\\" and that \\\"even when a court has overturned a parent's conviction, that reversal does not prevent termination of parental rights as long as the termination rests on other grounds.\\\"\\nRowan attempts to distinguish our decisions in R.F. and A.A. Rowan notes that in RF., the child's medical needs created an additional need for permanency and weighed against granting a continuance. And Rowan argues that his children's situation is different because there was evidence that they were doing well in a permanent family placement so that \\\"delaying the termination trial would have little impact on them.\\\" Rowan also argues that unlike the situation in A.4., Rowan's parental rights were terminated based solely on conduct related to Rowan's criminal convictions. But Rowan's arguments are not persuasive.\\nRowan exercised his right not to testify at the adjudication or termination proceedings. An individual \\\"should not be penalized for invoking his Fifth Amendment privilege.\\\" But when addressing Rowan's continuance request, the superior court had to balance Rowan's privilege against his children's \\\"interest[s] in timely resolution of the proceedings.\\\"\\nThe Alaska Statutes and our precedent establish a clear policy: The best interests of children, including the interest in permanen- | cy as opposed to leaving children in limbo, are paramount. Alaska Statute 47.10.088() requires a termination trial within six months of the termination petition \\\"unless the [superior] court finds that good cause is shown for a continuance.\\\" Thus, the superior court could not grant Rowan's request for a lengthy continuance unless the court found good cause. And the legislature has directed that when making a good cause finding, \\\"the court shall take into consideration the age of the child[ren] and the potential adverse ef-feet that delay may have on the child[ren].\\\"\\nThe superior court properly analyzed the impact of a continuance on Rowan's children, finding that \\\"[al lengthy delay is not in the childrenf's] best interests.\\\" The court relied on evidence that the children were \\\"anxious to proceed with adoption\\\" and had already waited more than two years since their re moval. And record evidence established that Rowan's appeal, and thus his requested continuance, would potentially take an additional two years.\\nThe superior court emphasized the children's need for permanency, taking into consideration \\\"the potential adverse effect that the delay may have on the child[ren},\\\" and determined that their interest outweighed any prejudice Rowan suffered from invoking his right not to testify at trial pending the appeal of his criminal conviction. The superior court recognized the difficulty of Rowan's position, but it ultimately denied the continuance, concluding that granting a continuance and delaying permanency was not in the children's best interests, Finally, as OCS persuasively notes, delaying termination trials \\\"until a parent can testify without fear of criminal consequences . would drag out the most serious CINA cases to the detriment of children who, like Agnes, have suffered the most severe abuse at the hands of their parents.\\\"\\nWe therefore conclude that the superior court did not abuse its discretion when it refused to continue the termination trial.\\nv. CONCLUSION\\nFor the foregoing reasons we AFFIRM the superior court.\\n. We previously reviewed the superior court's adjudication of the children as children in need of aid (CINA). See Rowan B., Sr. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 320 P.3d 1152, 1156-57, 1159 (Alaska 2014) (remanding and retaining jurisdiction due to legal error when denying discovery request); Rowan B., Sr. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., No. S-15107, 2014 WL 4057175, at *1 (Alaska Aug. 13, 2014) (affirming CINA adjudication).\\n. We use pseudonyms to protect the family's privacy.\\n. See Rowan B., Sr., 320 P.3d at 1156-57.\\n. Id. at 1157-59.\\n. Rowan B., Sr., 2014 WL 4057175, at *1.\\n. Id.\\n. See AS 47.10.088(\\u00a7) (\\\"No later than six months after the date on which the petition to terminate parental rights is filed, the court before which the petition is pending shall hold a trial on the petition unless the court finds that good cause is shown for a continuance. When determining whether to grant a continuance for good cause, the court shall take into consideration the age of the child and the potential adverse effect that the delay may have on the child.\\\").\\n. Hannah B. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 289 P.3d 924, 930 (Alaska 2012) (quoting Ben M. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 204 P.3d 1013, 1018 (Alaska 2009).\\n. AA. v. State, Dep't of Family & Youth Servs., 982 P.2d 256, 259 (Alaska 1999) (quoting Alaska Marine Pilots v. Hendsch, 950 P.2d 98, 104 (Alaska 1997)).\\n. See also CINA Rule 18(e) (\\\"A trial on the petition to terminate parental rights shall be held within six months after the date on which the petition to terminate parental rights is filed, unless the court finds that good cause is shown for a continuance. When determining whether to grant a continuance for good cause, the court shall take into consideration the age of the child and the potential adverse effect that the delay may have on the child. The court shall make written findings when granting a continuance.\\\").\\n. Richard B. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth Servs., 71 P.3d 811, 831 (Alaska 2003) (quoting J.M.R. v. S.T.R., 15 P.3d 253, 257 (Alaska 2001)).\\n. In his reply brief Rowan raises an additional argument: \\\"And, so long as his convictions remain and he is imprisoned, he cannot fight termination because Rowan's convictions and imprisonment independently support termination, regardless of whether the trial court based its findings on the fact of the abuse.\\\" We do not address this argument \\\"[blecause we deem waived any arguments raised for the first time in a reply brief.\\\" Barnett v. Barnett, 238 P.3d 594, 603 (Alaska 2010).\\n. 928 P.2d 1194 (Alaska 1996).\\n. Id. at 1194-95.\\n. Id. at 1195-96.\\n. Id. at 1197.\\n. Id.\\n. 982 P.2d 256 (Alaska 1999).\\n. Id. at 260.\\n. Id. at 258-59.\\n. Id. at 259.\\n. Id.\\n. Id. at 260.\\n. See R.F. v. S.S., 928 P.2d 1194, 1197 (Alaska 1996) (''The trial court found that [the child] has serious medical needs that can be fully addressed only if he has both the support and stability of a permanent family.\\\").\\n. Armstrong v. Tanaka, 228 P.3d 79, 84 (Alaska 2010).\\n. Id. at 84-85; see also Sarah D. v. John D., 352 P.3d 419, 427 (Alaska 2015) (\\\"Whether a continuance was properly denied turns on the particular circumstances of each case, but courts should 'balance the need[] for . promptness with the right{ ] to fair presentation of the case.' \\\" (alterations in original) (quoting Sylvester v. Sylvester, 723 P.2d 1253, 1256 (Alaska 1986))).\\n. See AS 47.10.005 (\\\"'The provisions of this chapter shall be liberally construed to . promote the child's welfare and the parents' participation in the upbringing of the child to the fullest extent consistent with the child's best interests....\\\"); AS 47.10.088(}) (requiring, absent good cause to the contrary, a termination trial no later than six months after a petition to terminate parental rights is filed); A.A., 982 P.2d at 260 (\\\"Xn a termination trial, the best interests of the child, not those of the parents, are paramount.\\\").\\n. AS 47.10.088().\\n. Id.\\n. The superior court also noted that because it had \\\"heard independent evidence of the sexual abuse and continued safety risks to the children . any appeal of the criminal case w[ould] not 1ike}y entitle [Rowan] to further CINA proceedings.\\\"\"}"
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+"{\"id\": \"6878322\", \"name\": \"ALASKA FUR GALLERY, INC., Hernandez and Associates, LLC, and The Inn at Whittier, LLC, Appellants and Cross-Appellees, v. FIRST NATIONAL BANK ALASKA (formerly First National Bank of Anchorage), Appellee and Cross-Appellant\", \"name_abbreviation\": \"Alaska Fur Gallery, Inc. v. First National Bank Alaska\", \"decision_date\": \"2015-03-13\", \"docket_number\": \"Nos. S-14856, S-14875\", \"first_page\": \"76\", \"last_page\": \"100\", \"citations\": \"345 P.3d 76\", \"volume\": \"345\", \"reporter\": \"Pacific Reporter 3d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-11T01:38:53.173544+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before: Stowers and Bolger, Justices, and Eastaugh, Senior Justice.\", \"parties\": \"ALASKA FUR GALLERY, INC., Hernandez and Associates, LLC, and The Inn at Whittier, LLC, Appellants and Cross-Appellees, v. FIRST NATIONAL BANK ALASKA (formerly First National Bank of Anchorage), Appellee and Cross-Appellant.\", \"head_matter\": \"ALASKA FUR GALLERY, INC., Hernandez and Associates, LLC, and The Inn at Whittier, LLC, Appellants and Cross-Appellees, v. FIRST NATIONAL BANK ALASKA (formerly First National Bank of Anchorage), Appellee and Cross-Appellant.\\nNos. S-14856, S-14875.\\nSupreme Court of Alaska.\\nMarch 13, 2015.\\nDon C. Bauermeister, Burke & Bauermeis-ter, PLLC., Bremerton, Washington, for Appellants and Cross-Appellees.\\nWilliam Grant Callow, II, Anchorage, and Stephen M. Dodge, Austin, Texas, for Appel-lee and Cross-Appellant.\\nBefore: Stowers and Bolger, Justices, and Eastaugh, Senior Justice.\\nSitting by assignment made under article IV, section 11 of the Alaska Constitution and Alaska Administrative Rule 23(a).\", \"word_count\": \"11912\", \"char_count\": \"74631\", \"text\": \"OPINION\\nBOLGER, Justice.\\nI. INTRODUCTION\\n'sulting superior court proceedings. A family of business owners obtained a bank loan to invest in a fledgling hotel project. The family later sued the bank, alleging that one of its loan officers fraudulently induced them to invest in the project. This appeal concerns numerous aspects of the reIn par ticular, the family claims that the bank committed a fraud upon the court through inaccurate and inconsistent portrayals of the loan officer's conduct. We conclude that although some testimony offered by the bank may have been misleading, it was not sufficiently egregious as to constitute fraud upon the court. We therefore affirm.\\nII. FACTS AND PROCEEDINGS\\nWilliam McGrew, now deceased, was a loan officer and the senior vice president for commercial lending at First National Bank Alaska (the Bank). Among the Bank's corporate customers were Alaska Fur Gallery, Inc. and Hernandez & Associates, LLC. Both entities are owned and operated by members of the Hernandez family, and we refer to these entities collectively as \\\"the Hernandezes\\\" unless context requires otherwise.\\nThe Hernandezes borrowed money from the Bank to invest in a hotel project, the Inn at Whittier, LLC (the Inn). But according to the Hernandezes, McGrew used his position of trust to induce unwise investments in the Inn and, when trouble arose, assured the Hernandezes that he would relieve them of their financial liability by finding replacement financing, which never came to fruition. The Hernandezes filed suit, alleging both common law tort claims and Alaska Securities Act violations.\\nThe case was originally tried in 2008, but for reasons not relevant to this appeal, the superior court ordered a new trial. This second trial, conducted in 2010, resulted in an award for the Hernandezes on their common law negligence claim only. The jury found that the Hernandezes had suffered $675,000 in damages but determined that the Bank was only partially at fault. The jury conelud-ed that another investor, Edward Cronick, also contributed to the Hernandezes' loss, and that the Hernandezes themselves were negligent and unreasonably failed to avoid damages. The jury allocated 45% of the fault to the Hernandezes, 41% to Cronick, and 14% to the Bank.\\nBased on the jury's verdict, the superior court entered judgment against the Bank in the amount of $94,500 in damages, plus interest. The court also awarded the Hernan-dezes attorney's fees and costs. The Her-nandezes' appeal and the Bank's cross-appeal involve multiple rulings at various stages of the superior court proceedings. These specific rulings and the underlying facts are detailed in the discussion below.\\nIII. STANDARD OF REVIEW\\nA superior court's determination as to whether fraud upon the court has occurred is reviewed for abuse of discretion. \\\"In reviewing the denial of a motion for directed verdiet or [judgment notwithstanding the verdict (JNOV) ], we apply an objective test to determine whether the evidence, when viewed in the light most favorable to the non-moving party, is such that reasonable [persons] could not differ in their judgment.\\\" We review denial of a new trial under an abuse of discretion standard wherein we disturb the trial court's discretion only in the most exeeptional cireumstances to prevent a miscarriage of justice.\\\"\\nA superior court's decision to admit or exclude evidence is reviewed for abuse of discretion, and \\\"will be upset only if we find there has been an error which affected the substantial rights of a party.\\\" \\\"We review jury instructions de novo when a timely objection is made. Absent a timely objec-\\ntion, we review only for plain error. Whether equitable estoppel applies is a question of law that this court reviews de novo.\\n\\\"We review the decision to award attorney's fees for abuse of discretion and [will] overturn it only where the award is manifestly unreasonable.\\\" Here, the Bank asks for de novo review of the Hernandezes' enhanced attorney's fees award since the judge who made that award had not been present at the two trials The Bank argues that since the awarding judge did not have the benefit of observing the proceedings, the rationale for the more deferential standard of review does not apply.\\nWe have never reviewed an award of attorney's fees with less deference where a new superior court judge has been assigned to a case, and we decline to do so here. Alaska Civil Rule 82(b)(8) gives the superior court significant discretion to \\\"vary an attorney's fee award\\\" based on the consideration of various factors, and makes no distinction between a judge sitting at trial versus a judge later assigned to a matter. Even a superior court judge who did not preside over the trial in a case may have a more current perspective through which to evaluate some of the Rule 82(b)(8) factors, such as \\\"the reasonableness of the attorneys' hourly rates and the number of hours expended\\\"; \\\"the reasonableness of the number of attorneys used\\\"; or an attorney's \\\"efforts to minimize fees. We therefore review the award of enhanced attorney's fees to the Hernandezes for abuse of discretion.\\nA superior court's prevailing party determination for purposes of attorney's fees is similarly reviewed for abuse of discretion. Whether an offer of judgment complies with Alaska Civil Rule 68, however, is a question of law to which we apply independent judgment. Similarly, we interpret the civil rules de novo, and apply our independent judgment to the interpretation of contracts.\\nIV. DISCUSSION\\nA. Although The Bank's Litigation Conduct Supports The Award Of Enhanced Attorney's Fees For The First Trial, The Superior Court Did Not Err By Finding No Fraud Upon The Court.\\nBefore the second trial in this case commenced, the Hernandezes filed a motion seeking to establish the Bank's liability on the grounds that the Bank perpetrated a \\\"fraud upon the court\\\" during the first trial. The Hernandezes argued that Bank officers, despite their knowledge that McGrew had in fact violated bank policy and may have violated federal or state laws, presented testimony and \\\"directed a litigation defense\\\" based on the claim that McGrew had never committed any wrongdoing. As evidence, the Hernan-dezes pointed to alleged inconsistencies between the Bank's testimony in their case (AFG) and a separate case involving McGrew's conduct with respect to a different Bank client, Todd Christianson (Christion-son ).\\nThe superior court concluded that the Her-nandezes \\\"failed to demonstrate, by clear and convincing evidence, conduct by [the Bank] egregious enough to support a finding of fraud upon the court.\\\" The court also noted that the verdict from the first trial had already been vacated; thus the Hernandezes would have an opportunity at the second trial to \\\"examine the bank officers about their knowledge of McGrew's conduct.\\\" Finally, the order made clear that the Hernandezes could later seek attorney's fees incurred during the first trial if they could \\\"show new evidence elucidated at the upcoming trial that [would] justify a finding of misconduct by [the Bank] or fraud upon the court.\\\"\\nUpon conclusion of the second trial, the Hernandezes filed a renewed fraud upon the court motion, which was similarly denied. However, the superior court noted it would \\\"consider the actions of the defense and their witnesses in conjunction with the anticipated motion for attorney's fees,\\\" and the court ultimately awarded the Hernandezes enhanced fees for hours spent on the first trial and on the motion for a new trial. The court found that the Bank's \\\"litigation conduct pri- or to the first trial was not undertaken in good faith and, at times, was unreasonable\\\" and that \\\"testimony given in the Christion-son matter was at odds with testimony presented in this litigation.\\\" But with regard to the second trial, the court found that the Hernandezes were able to present \\\"whatever evidence [they] deemed relevant and probative\\\" and that no enhanced fees were warranted. The Bank appeals the award of enhanced attorney's fees for the first trial, and the Hernandezes contend that enhanced fees should have been awarded for both trials.\\nThe Hernandezes also appeal the denial of their fraud upon the court motions and further contend the Bank has committed a fraud upon this court. A typical remedy for fraud upon the court is to vacate the fraudulently obtained judgment. Here, however, the Hernandezes seek an alternative remedy, which is for this court to direct judgment in their favor and remand solely for determination of damages.\\n1, Fraud upon the court may only be found in the most egregious circumstances involving the corruption of the judicial process. }\\n\\\"Fraud upon the court\\\" is an equitable doctrine that allows a court to set aside a judgment obtained as a result of fraudulent conduct. It is an exception to the general rule that courts \\\"[willl not alter or set aside their judgments after the expiration of the term at which the judgments were finally entered.\\\" In Alaska, the doctrine is codified in Alaska Civil Rule 60(b), whereby a court has the power \\\"to set aside a judgment for fraud upon the court.\\\" \\\"[The party claiming a fraud on the court bears the burden of proving the claim by clear and convincing evidence.\\\"\\nWe have noted that \\\"specific attempts to define fraud on the court are not particularly helpful,\\\" but \\\"have nevertheless consistently recognized that [a] fraud upon the court may only be found in the most egregious cireumstances involving a corruption of the judicial process itself.\\\" Similarly, we have adopted the view that the drafters of Rule 60(b) viewed fraud upon the court as referring \\\"to very unusual cases involving far more than an injury to a single litigant.\\\"\\nOn the other hand, we have \\\"declined to hold that an intent to defraud must invariably be proved to establish a fraud on the court\\\" and have found recklessness to be sufficient. In Mallonee v. Grow, for example, a party filed for a writ of execution that \\\"grossly overstated\\\" the amount a judgment debtor owed him, used the writ to levy upon property that the debtor did not actually own, and failed to serve legally required notice of the motion to confirm the property's sale. Although we recognized that neither the party nor his attorney had \\\"an actual intent to defraud,\\\" we nonetheless concluded that \\\"the court has the same duty to rectify the wrong\\\" \\\"[wlhether the deprivation of a party's rights . [is] attributable to a willful intent to defraud or a reckless disregard of rules or statutory provisions.\\\"\\nFinally, fraud upon the court may be found even in the absence of trial counsel's involvement. In Pumphrey v. K.W. Thompson Tool Co., the Ninth Cireuit Court of Appeals held that a gun manufacturer's in-house counsel perpetrated a fraud upon the court when he failed to present evidence of a video-recorded test he had observed during which a gun fired when dropped on the ground. The in-house counsel also neglected to raise the issue when the person who had conducted the experiment testified that the gun had never fired when dropped during testing. Although the inhouse counsel did not represent the gun manufacturer at trial, the court nonetheless concluded that he \\\"engaged in a scheme to defraud.\\\" Nevertheless, the general rule is that a witness's perjury, if \\\"unassisted by the party in interest or by counsel, . does not amount to fraud upon the court.\\\"\\n2. The trial court did not err in denying the Hernandezes' original fraud upon the court motion.\\nAs the superior court noted, the Hernan-dezes' fraud upon the court claim requires \\\"a factual inquiry into whether [Bank officers] were aware of any wrongdoing by McGrew, if so, when they became aware of it, and if their testimony and pretrial discovery square with those factual findings.\\\" We review the outcome of that inquiry for abuse of discretion.\\na. The Bank's alleged knowledge of McGrew's wrongdoing\\nAs evidence that the Bank already knew of McGrew's wrongdoing during the first AFG trial in June 2008, the Hernandezes presented testimony given by Bank officials during the Christianson litigation. Although these statements were not made until after the conclusion of the first AFG trial, they nonetheless shed light on knowledge the Bank may have gained about McGrew's lending practices before the first AFG trial.\\nMost notably, the Hernandezes highlighted deposition testimony from Bank senior vice president and general counsel David Lawer suggesting that Lawer knew of McGrew's improper practices as early as 2005. When Lawer was asked when he had discovered that McGrew \\\"had violated the bank's rules,\\\" he answered, \\\"With-within the year 2005.\\\" Lawer also described his conclusion that McGrew was \\\"making loans [and] renewing loans at maturity to avoid identification of a borrower or borrowers who were unable to pay prior credit obligations and who currently were not ereditworthy and . not worthy of further loans.\\\" Lawer stated that he reached this conclusion based on a review of numerous loan filee-a process that may have been completed before the first AFG trial. The Bank admits that repeated loan extensions to a borrower who is not creditworthy would, \\\"absent some justification,\\\" violate bank policy.\\nThe Hernandezes also highlighted the statements of Bank senior vice president David Stringer, who learned about some of McGrew's loan practices after McGrew's death in December 2004. Stringer testified that he received multiple reports from some of McGrew's former customers, who claimed they had been given loans \\\"for the purposes of the proceeds being distributed for [someone else's] benefit.\\\" Such loans, which have their proceeds distributed to a third party rather than to the borrower, are sometimes referred to as \\\"nominee loans,\\\" and McGrew's former customers told Stringer he should look to the third-party beneficiaries for repayment. Stringer testified that he \\\"probably\\\" received these reports between 2005 and 2007 and that he relayed them to Bank president Dan Cuddy as they arose.\\nStringer also testified about information he and Cuddy acquired regarding McGrew's dealings with a particular Bank client, Kay-len LeBaron, who appeared to be receiving the proceeds from some of these nominee loans. Stringer testified that after McGrew's death, LeBaron requested a meeting with Cuddy. According to Stringer's testimony, LeBaron admitted at the meeting that he was the beneficiary of numerous loans taken out on his behalf.\\nb. The Bank's testimony and pre-trial disclosures\\nThe Hernandezes argue that the Bank's testimony in Christianson reveals its representations during the first AFG trial to be fraudulent. But the superior court could reasonably conclude that the Bank's alleged misrepresentations, when viewed in context, did not constitute \\\"the most egregious circumstances involving a corruption of the judicial process itself.\\\"\\nWe turn first to what is arguably the Hernandezes' most persuasive evidence of fraudulent conduct: direct discrepancies between Lawer's testimony in the AFG and Christianson cases. During a 2007 deposition before the AFG trial, Lawer was asked whether, \\\"as the bank compliance officer, [he] believe{d] [McGrew] did his job relative to lending within the parameters of federal, [s]tate, and bank rules{.]\\\" Lawer answered, \\\"Yes, as far as I know.\\\" Yet Lawer later testified in Christianson that he acquired knowledge about McGrew's bank rule violations in 2005.\\nNevertheless, we agree with the superior court that Lawer's 2007 deposition testimony, while misleading and potentially false, was not sufficiently egregious to find fraud upon the court. We have expressed caution in finding fraud upon the court based purely on the after-discovered perjury of a witness. And although the Ninth Cireuit has found fraud upon the court based solely on the conduct of a party's general counsel, Lawer's conduct was distinguishable from the concealment of pivotal evidence at issue in Pum-phrey. Even if Lawer misrepresented McGrew's general track record at the Bank, the misrepresentation did not directly relate to McGrew's transactions with the Hernan-dezes. The superior court could reasonably conclude that Lawer's testimony did not constitute a corruption of the judicial process itself.\\nThe Hernandezes also argued that Bank officials' in-court testimony misrepresented McGrew's history at the Bank. For instance, Cuddy testified that he could not think of any reason why the Hernandezes should not have trusted McGrew. Cuddy also answered affirmatively when asked if, as far as he knew, \\\"McGrew's conduct [was] lawful in all respects.\\\" Cuddy went on to state that McGrew \\\"was well respected in [the] bank and . [had] done a good job for . 25 years.\\\" Lawer testified at trial that he thought Cuddy had testified accurately, with the exception of one unrelated issue, and further characterized McGrew as a \\\"very successful\\\" Bank employee.\\nThe Hernandezes contrast Cuddy's AFG testimony with Stringer's statements in Christianson that Cuddy knew about McGrew's nominee loans as early as 2005, when Cuddy began receiving Stringer's reports and met with LeBaron. The Hernan-dezes argue that McGrew's use of nominee loans violated both bank policy and federal law, contradicting Cuddy's characterization of McGrew's conduct as lawful. However, the Bank contends that nominee loans are \\\"not uncommon\\\" and are only illegal if done in a way that deceives a bank or its examiners. Because of this dispute over the legality of nominee loans, it is possible that at the time of the first AFG trial the Bank still lacked reason to believe that McGrew's lending practices were illegal.\\nMoreover, there were other reasons to discount the Hernandezes' fraud upon the court claim. Even if Cuddy's answer that McGrew's conduct was lawful in all respects was misleading, its impact on the court was lessened by Cuddy's disclaimer that he had not familiarized himself with the Hernan-dezes' case. Likewise, the Bank's general defenses of McGrew's character were largely subjective and likely had little impact. And because the superior court had vacated the first jury verdict on other grounds, the Her-nandezes had already received the presumptive remedy for fraud upon the court; relief from judgment. The superior court correctly noted that the second trial would provide the Hernandezes with \\\"the opportunity to examine the bank officers about their knowledge of McGrew's conduct.\\\"\\nFor the reasons above, the court could reasonably conclude that the alleged inconsistencies in the Bank's testimony did not rise to \\\"clear and convincing\\\" evidence of fraud upon the court.\\n3. The trial court did not err in awarding the Hernandezes enhanced attorney's fees.\\nWhile the Bank's conduct during the first AFG trial may not have been sufficient, ly egregious to constitute fraud upon the court, the superior court could reasonably conclude that testimony from the Bank's corporate officers was a bad faith attempt to minimize McGrew's misconduct, warranting enhanced attorney's fees. This court reviews \\\"the decision to award attorney's fees for abuse of discretion and [will] overturn it only where the award is manifestly unreasonable.\\\"\\nIn particular, Lawer's 2007 deposition testimony that McGrew had done his job \\\"within the parameters\\\" of Bank rules may have prevented the plaintiffs from discovering the extent of McGrew's wrongdoing. And it is difficult to reconcile Lawer's 2007 testimony with his later statement that \\\"within the year 2005\\\" he came to \\\"know\\\" that McGrew had violated those rules.\\nAs the superior court noted, \\\"It is clear from Lawer's testimony in his Christianson deposition that he found out sometime in 2005 from Stringer that bank customers were making allegations against McGrew regarding nominee loans....\\\" Lawer countered in an affidavit that merely hearing \\\"allegations by a few defaulting debtors\\\" was insufficient to support a \\\"reasonable belief\\\" that McGrew had committed wrongdoing. While this reasoning may, standing alone, be sensible, it does not explain Lawer's testimony in Christianson that he came to \\\"know\\\" in 2005 that McGrew violated Bank rules.\\nThe Bank argues that in awarding the Hernandezes enhanced attorney's fees, the superior court did not sufficiently \\\"specify its reasons in the record.\\\" We disagree. The court specifically found that \\\"testimony given in the Christianson matter was at odds with testimony presented in this litigation.\\\" The court could reasonably conclude that the Bank had not adequately explained this inconsistency. Accordingly, the court did not abuse its discretion in awarding the plaintiffs their full fees for the first trial.\\nNor did the court abuse its discretion in restricting its award of enhanced fees to those the Hernandezes incurred for the first trial. The superior court could reasonably conclude that the second trial offered the Hernandezes an opportunity to \\\"present whatever evidence [they] deemed relevant and probative\\\" regarding the Bank officers' testimony in prior proceedings. Accordingly, the Hernandezes had a chance to remedy any obfuscation resulting from the Bank's testimony in the first trial. As discussed below, moreover, the evidence that the Bank engaged in fraudulent or even misleading conduct is less compelling with respect to the second trial.\\n4. The trial court did not err in denying the Hernandezes' renewed motion for fraud upon the court. |\\nThe inconsistencies the Hernandezes rely on from the second trial are much less serious than those alleged in their original fraud upon the court motion. These inconsistencies did not require the superior court to direct judgment in their favor.\\nIn their renewed motion, the Hernandezes highlighted the Bank's alleged knowledge of McGrew's wrongdoing by the time the see-ond AFG trial commenced in November 2010. They pointed first to a report the Bank commissioned for its defense in the Christianson litigation, authored by Burton McCullough (the McCullough Report). The report is dated June 2009, and opines that McGrew issued illegal \\\"nominee loans\\\" for Christianson's benefit, The Bank intimated during the second AFG trial that it did not consider the report credible.\\nThe Hernandezes next pointed to a superi- or court order issued in the Christianson case, finding that McGrew \\\"had established a practice of using one bank customer to help the troubled loans and financial problems of other bank customers.\\\" The order also found, \\\"Much of this lending was granted to customers who did not qualify for the loans and whose ability to pay was questionable.\\\" However, these findings did not relate to McGrew's interactions with the Hernandezes, nor did they specifically determine that McGrew acted in contravention of law or bank policy. This order may illustrate the Bank's knowledge of McGrew's misconduct with respect to Christianson by the time of the second AFG trial, but the superior court could reasonably conclude that such knowledge was tangential to the question of whether there was wrongdoing with respect to the Hernandezes.\\nThe Hernandezes argue that the Bank's defense in the second AFG trial was nonetheless inconsistent with its admission of McGrew's wrongdoing in Christianson. For example, the Hernandezes cited the Bank's opening statement in AFG, purportedly describing \\\"McGrew's unwillingness to engage in fraudulent conduct.\\\" Yet in this same opening statement, the Bank admitted McGrew \\\"ben{t]\\\" the Bank's policies and procedures in order \\\"to give a borrower a break.\\\" This kind of admission is inconsistent with conduct \\\"involving a corruption of the judicial process itself.\\\"\\nThe Hernandezes also highlighted String er's testimony during the second AFG trial. In particular, Stringer testified that he had \\\"never been aware of [Bank] policies that . Mr. McGrew was violating,\\\" and he opined that McGrew would not have told customers that they were not required to pay back \\\"nominee loans\\\" for which they were the named beneficiaries. These claims were arguably inconsistent with Stringer's testimony in Christianson that, beginning in 2005, he began receiving reports from customers claiming that McGrew had given them nominee loans and assured them they would not be responsible for repayment. Yet even if Stringer's statements during the second AFG trial were inaccurate, his misrepresentations about whether he personally believed McGrew engaged in prohibited practices were not sufficiently egregious to compel a finding of fraud upon the court.\\nNor did Lawer's in-court testimony during the second AFG trial warrant such a finding. Lawer denied having personal knowledge that McGrew contravened legal rules or Bank policies in his dealings with the Her-nandezes, but conceded that McGrew might have violated Bank policies with respect to Christianson. Lawer testified that giving illegal nominee loans would be \\\"out of character\\\" for McGrew, but offered only equivocal statements as to whether McGrew may have engaged in criminal activity.\\nUnlike the Bank officers' testimony during the first AFG trial, these statements largely avoided sweeping pronouncements that McGrew had a blemish-free record at the Bank. And when Bank officers did testify about McGrew's general track record, they entertained the possibility that McGrew's lending practices might have violated the law or Bank policy. Accordingly, the superior court could reasonably conclude that the Bank did not commit a fraud upon the court during the second AFG trial.\\n5. The Bank has not committed a fraud upon this court.\\nThe Hernandezes argue that the Bank's \\\"misrepresentations of McGrew's conduct and presentation of false evidence\\\" constitutes a fraud upon this court,. The Her-nandezes point out that the Bank asserted in its Christianson appellate briefing that McGrew had engaged in criminal conduct, contradicting the Bank's prior denials of McGrew's wrongdoing. But the Bank has not asserted to this court that McGrew never committed a crime, and the Hernandezes do not point to particular statements in the Bank's briefing that are fraudulent. Accordingly, we conclude the Bank has not committed a fraud upon this court.\\nB. The Superior Court Did Not Err In Denying The Hernandezes' Motions For Directed Verdict And JNOV On The Issue Of Whether McGrew Acted Solely As A \\\"Finder.\\\"\\nAmong the determinations the jury was asked to make in the underlying case was whether McGrew had acted solely as a \\\"finder\\\" with respect to the Hernan-dezes' investments in the Inn. As the jury instructions provided, \\\"A national bank that acts as a finder may identify potential parties, make inquiries as to interest, introduce or arrange contacts or meetings of interested parties, act as an intermediary between interested parties, and otherwise bring parties together for a transaction that the parties themselves negotiate and consummate.\\\"\\nThe instruction listed five illustrative examples of what a finder could not engage in:\\n1) Be an agent of one party or another;\\n2) Broker a deal while representing only one party;\\n3) Make false representations as to the value or the quality of the investment;\\n4) Make false recommendations as to the amount that should be invested;\\n5) Make false representations about the success of the investment.\\nFinally, the instructions advised the jurors that if they found the Bank or McGrew to have acted only as a \\\"finder,\\\" they must find for the Bank on all of the securities claims. At the conclusion of trial, the Hernandezes moved for a directed verdict that McGrew had engaged in activities that were forbidden for a \\\"finder\\\"; the superior court denied the directed verdiet motion.\\nIn reviewing this issue, \\\"we apply an objective test to determine 'whether the evidence, when viewed in the light most favorable to the non-moving party, is such that reasonable [persons] could not differ in their judgment.'\\\" The Hernandezes assert that the \\\"uncontested record\\\" illustrates that McGrew engaged in activities forbidden for a finder. Specifically, they point to statements made by various witnesses that, in their view, tend to show McGrew made false representations as to the quality of the Inn as an investment opportunity. But even if these statements were uncontradicted, as the Her-nandezes assert, the jurors were nonetheless free to disbelieve such testimony or conclude that the alleged conduct fell within the parameters of permitted \\\"finder\\\" activities.\\nMoreover, there was substantial testimony suggesting that McGrew acted only as a finder, including expert testimony from one of the Bank's witnesses, Professor Theresa Ga-baldon. At trial, Gabaldon stated, \\\"Every thing I have reviewed is entirely consistent with . my conclusion that [McGrew] was acting as a finder, as understood for purposes of federal banking law.\\\" Testimony from the Inn's original investors, Kirk Loef-fler and Edward Cronick, provided further evidence favoring the Bank on this issue. According to Loeffler, McGrew informed him that while he could provide the contact information of potential investors, Loeffler would need to actually \\\"sell the project\\\" to these contacts. Cronick similarly testified that McGrew gave \\\"suggestions\\\" of potential investors and that the Inn was not using McGrew \\\"as a sales agent.\\\" In light of this evidence, reasonable jurors could have reached differing conclusions on whether McGrew acted solely as a \\\"finder.\\\"\\nThe Hernandezes argue that the prejudice they suffered from the denial of their motion for directed verdict was exacerbated by the absence of a \\\"curative\\\" jury instruction \\\"that McGrew's use of nominee loans was felonious conduct.\\\" In view of our disposition on the \\\"finder\\\" issue, however, the jury would have been precluded from finding the Bank liable on the plaintiffs' securities claims in any event. And the Hernandezes do not show how an instruction regarding nominee loans would have been relevant to their non-securities claims. Accordingly, we are not required to decide whether the judge should have given a jury instruction regarding the legality of nominee loans.\\nSimilarly, we need not reach the issue of whether the superior court erred in denying the Hernandezes' motion for JNOV finding certain outstanding debts to the Bank non-collectible under AS 45.55.930(g). Under this statutory provision, a person cannot sue to enforce a contract if that person had knowledge of facts which rendered the making or performance of the contract a violation of the Alaska Securities Act. But the jury's conclusion that McGrew was only a \\\"finder\\\" relieved the Bank of liability under the Securities Act.\\nC. The Superior Court Did Not Abuse Its Discretion In Limiting The Evidence Concerning The McCullough Report.\\nThe Hernandezes argue that the superior court erred in excluding the MceCul-lough Report from evidence and limiting McCullough's testimony. As discussed above, the Bank retained McCullough to prepare a report for its defense in the Chris-tionson litigation, and the report opined that McGrew had engaged in illegal lending activity with respect to Bank client Todd Chris-tianson. In this case, the Bank argued that the McCullough Report was irrelevant to McGrew's interactions with the Hernandezes, and even if it were relevant for some limited 'purpose, the report's assertion that McGrew engaged in criminal wrongdoing with respect to Christianson was highly prejudicial.\\nThe court ultimately excluded the McCullough Report and limited McCullough's testimony. Specifically, McCullough was allowed to testify that he had provided the Bank with a report concluding that McGrew had repeatedly violated both banking regulations and the Bank's policies and procedures. But he was not allowed to state his conclusion that McGrew's conduct described in Chris-tianson was felonious.\\nA trial court's decision to admit or exclude evidence is reviewed for abuse of discretion and for prejudice to the opposing party. The Hernandezes argue that the trial court was compelled to admit the McCullough Report based on our holding in Fred Meyer of Alaska, Inc. v. Bailey. But our analysis in Fred Meyer did not implicate the key issue on which the trial court based its decision to limit McCullough's testimony: relevance.\\nIn Fred Meyer, the superior court was tasked with determining whether the defendant-employer had acted in good faith in classifying an employee as exempt from overtime under the Alaska Wage and Hour Act (AWHA). In a previous lawsuit, the employer had commissioned an expert report concluding that the plaintiff-employee's job position should be classified as non-exempt. Because this arguably put the employer on notice of its AWHA violation, the report was directly relevant to evaluating the employer's defense that the misclassification was in good faith.\\nThe contents of the McCullough Report, in contrast, raise relevance problems not present in Fred Meyer. First, the Bank did not receive the McCullough Report until 2008-well after the events relevant to the Hernan-dezes' claims took place. Moreover, the report was limited to MeceGrew's misconduct relating to Christianson's loans and did not discuss possible misconduct with respect to the Hernandezes' transactions. According to McCullough, none of the materials he reviewed in preparing his report related to McGrew's interactions with the Hernandezes or the Inn's other investors, Cronick and Loeffler.\\nThe superior court could therefore reasonably conclude that the report was not directly relevant to McGrew's conduct with respect to the plaintiffs. The court had considerable discretion, moreover, to limit McCullough's testimony about McGrew's eriminal misconduct to avoid unfair prejudice. The limitations on McCullough's testimony were not unreasonable in view of the other evidence that the court admitted regarding McGrew's wrongdoing in the Christianson matter.\\nD. No Plain Error Resulted From The Special Verdict Form.\\nThe Hernandezes argue that the questions on the special verdiet form led the jury to \\\"unknowingly make a double reduction\\\" of the Hernandezes' damage award. Absent a timely objection, we review the propriety of the special verdict form and the associated jury instructions for plain error.\\nThe special verdict form contained two questions that the Hernandezes claim may have confused the jury. Question 6 asked the jury \\\"[wlhat amount of damages, if any, was legally caused by the [Bank's] negligence,\\\" and the jury answered \\\"$675,000.\\\" And Question 25 asked the jury to determine the percentage of fault assigned to the Her-nandezes, the Bank, and Cronick, who settled with the Hernandezes out of court. The jury determined the Bank to be 14% at fault. The Hernandezes argue that the jury understood the $675,000 figure to be solely attributable to the Bank's negligence and did not realize that the allocation of fault in Question 25 would reduce the amount of damages ultimately owed to the Hernandezes.\\nThe Hernandezes are correct that Question 6 could have been framed more clearly to emphasize that it referred to their total damages. But any ambiguity in the question was directly addressed at trial, when subsequent requests for clarification confirmed that the jury correctly understood what was asked of them. First, the jury responded in the affirmative to the question, \\\"Does your answer to Question No. 6 [damages caused by the Bank's negligence] reflect the damages you awarded to Plaintiff before you made any deduction based upon your answer to Question No. 25 [allocation of fault among the Bank, Cronick, and the Hernandezes]?\\\" A second request asked the jury to re-examine its apportionment of fault \\\"[iJn light of [its]) decision that Plaintiffs are only entitled to damages based upon their claim of negli-genee.\\\" The request further instructed the jury to \\\"consider the nature of [the Bank's, Cronick's, and the Hernandezes'] conduct and the extent of the causal relationship between the conduct and any damages\\\" the jury had identified. The jury returned the same apportionment as in their original verdict.\\nThese interrogatories show that in answering the special verdict form, the jury properly calculated the amount of the Hernandezes' loss and then apportioned fault to take into account the degree to which the Bank, the Hernandezes, and Cronick contributed to that loss. In light of this clarification, we conclude that no plain error resulted from the special verdict form.\\nE. The Hernandezes' Common Law Tort Claims Are Not Barred By The Statute Of Limitations.\\nThe Hernandezes common law tort claims are governed by a two-year statute of limitations. \\\"Although a cause of action generally accrues when the plaintiff incurs an injury, accrual can be delayed under . [the] common-law discovery rule.\\\" \\\"[Tlhe discovery rule may provide different possible dates on which a statute of limitations can begin to run.\\\" Generally, however, the operative date is \\\"when the plaintiff has information which is sufficient to alert a reasonable person to begin an inquiry to protect his rights\\\"-often referred to as inquiry notice. Here, the Hernandezes conceded \\\"that as of October of 2008 [they] were on 'inquiry notice . as to their common law misrepresentation claims.\\\" However, the Hernandezes did not file their complaint until March 2006, after the two-year period had run.\\nBut we have held that \\\"[al party who fraudulently conceals from a plaintiff the existence of a cause of action may be estopped to plead the statute of limitation if the plaintiff's delay in bringing suit was occasioned by reliance on the false or fraudulent representation.\\\" Specifically, a plaintiff must show: \\\"(1) fraudulent conduct, which may take the form of either an affirmative misrepresentation or a failure to disclose facts where there is a duty to do so; (2) justifiable reliance; and (3) damage.\\\"\\nIn the proceedings below, the Bank filed a motion for summary judgment, arguing that the Hernandezes' common law tort claims were barred by the statute of limitations. In opposition, the Hernandezes pleaded equitable estoppel, citing McGrew's alleged assurances that he would find other investors or arrange for alternative financing to get the Hernandezes out of their investment in the Inn. The court denied the Bank's motion, finding there were issues of fact \\\"as to whether it was utterly unreasonable for Plaintiffs to not be fully aware of the falsity of McGrew's alleged misrepresentation . until informed so by [Bank] Vice President Stringer after McGrew's death in January 2005.\\\"\\nThe Bank later filed a motion for directed verdict on the same grounds, which the court similarly denied, first noting that it is the judge who determines whether the elements of estoppel have been satisfied, acting \\\"as a factfinder in determining the applicability of the statute of limitations.\\\" The court found that McGrew made misrepresentations to the Hernandezes and that the Bank \\\"knew about the weaknesses of the project\\\" but did nothing to stop McGrew from refinancing it. Accordingly, the court concluded that the Hernandezes' reliance on McGrew's misrepresentations was not \\\"utterly unreasonable.\\\" The Bank filed a motion for JNOV on the same grounds, which the court summarily denied.\\n1. The superior court applied the correct burden of proof to determine the elements of equitable estoppel.\\nThe Bank contends the superior court should have required the Hernandezes to prove each element of equitable estoppel by \\\"clear and convincing evidence.\\\" But the Bank relies on our application of this standard in real estate cases where the application of equitable estoppel divests title from one party and transfers it to another. Where title to land is at issue, the stricter standard serves to \\\"foster reliance on record title and enhance marketability.\\\" But these policy concerns do not apply here, and we have never required \\\"clear and convincing evidence\\\" to prove equitable estoppel in the context of a statute of limitations defense. We decline to do so now.\\nThe Bank also takes issue with the superior court's application of the \\\"utterly unreasonable\\\" standard this court articulated in Palmer v. Borg-Warner Corporation. As we have noted, \\\"a party should be charged with knowledge of the fraudulent misrepresentation or concealment only when it would be utterly unreasonable for the party not to be aware of the deception.\\\" Once it is utterly unreasonable not to know about the deception, the plaintiff must take timely action or risk losing the protection of equitable estoppel.\\nThe Bank contends that the \\\"utterly unreasonable\\\" standard is only applicable \\\"in cases of fraudulent concealment of a claim.\\\" Yet the \\\"utterly unreasonable\\\" standard as we have articulated it expressly applies to \\\"fraudulent misrepresentation,\\\" which is precisely what the Hernandezes alleged. We conclude that the superior court correctly applied the \\\"utterly unreasonable\\\" standard in this case.\\n2. The superior court reasonably concluded that the Banks defense was barred by equitable estoppel.\\nThe issue of whether equitable estoppel applies is a question of law that we review de novo. However, the elements of equitable estoppel involve questions of fact, which we review for clear error.\\nThe Bank asserts there was insufficient evidence to support the superior court's finding that \\\"McGrew failed to adequately make necessary disclosures and made misrepresentations to [the Hernandezes], such that they continued to work with him and [the Bank].\\\" But the Hernandezes attested that \\\"[elach time McGrew advanced funds to the Hernandez family members he would repeat that this was going to work and that as soon as the hotel was finished he could find other investors to take the Hernandez family completely out.\\\" McGrew allegedly made such representations in October and December of 2008, and in January, April, May, and October of 2004. According to the Hernandezes, McGrew also stated that, he would combine the Hernandezes' various loans into a single \\\"wrap around\\\" loan secured by the completed Inn.\\nThe Bank does not appear to argue on appeal that the Hernandezes' recounting of their conversations with McGrew is inaceu-rate. Rather, the Bank contends that these statements were not \\\"misrepresentations,\\\" but merely promises that were never performed. We have noted that \\\"[al statement made as to future intentions and actions is not a misrepresentation if it is accurate when it is made, even if future events render it inaccurate.\\\" But the Bank does not point to any evidence that McGrew intended to perform on his promise, such as an indication that McGrew was actively searching for an other investor or had the capacity to divest the Hernandezes of their responsibility for the project. The Bank does point out that the Hernandezes believed McGrew was seeking replacement financing, but this does not show that McGrew actually intended to do so. Accordingly, it was not clearly erroncous for the superior court to conclude that McGrew's reassurances were \\\"misrepresentations.\\\"\\nThe Bank also makes two arguments as to why, as a matter of law, McGrew's statements could not be considered misrepresentations. The first is that McGrew's promise to divest the Hernandezes of their investment was unenforceable under the Statute of Frauds, since certain types of financing or loans in excess of $50,000 must be in writing. But the provision the Bank cites applies only to \\\"an agreement to lend . or to grant or extend credit\\\" and therefore does not apply to McGrew's promises to divest the Hernandezes of their financial responsibility for existing loans. The Bank also argues that McGrew's assurances were merely speculative promises regarding a third party's actions and thus could not have been misleading as a matter of law. However, McGrew also allegedly told the Hernandezes that if they helped him finish building the Inn, ke would help them by \\\"find[ing] an investor to take over the project.\\\" Thus, McGrew was taking personal responsibility for an outcome he failed to provide, and accordingly, such a promise could constitute a misrepresentation.\\nIn its order denying the Bank's motion for directed verdict, the superior court also found that \\\"in light of the bank's tacit support of McGrew's actions,\\\" the Hernandezes were not \\\"utterly unreasonable\\\" in relying on McGrew's \\\"continued misrepresentations to allay their suspicions.\\\"\\nAs an initial matter, the Bank argues that the Hernandezes have never provided evi-denee that they actually relied on McGrew's assurances. But the Hernandezes' reliance may be inferred from the nature of McGrew's assurances and evidence that the Hernandezes continued to sign loan documents after their discussions with McGrew.\\nThe Bank also argues that reliance on McGrew's assurances would have been unreasonable. In particular, the Bank asserts it was unreasonable for the Hernan-dezes to rely on statements about potential financing that contained no details regarding amount, source, or terms. As the superior court noted, however, McGrew was a \\\"longtime friend and trusted loan officer.\\\" And even testimony from the Bank's own officers confirmed that the Hernandezes should have had no reason not to trust McGrew. Accordingly, it was not \\\"utterly unreasonable\\\" for the Hernandezes to rely on McGrew's assurances that he would secure new financing for the Inn.\\nF. The Issue Of Whether An Interest In An LLC Is A Security Is Moot.\\nThe Bank argues that the superior court erred in ruling that the Hernandezes acquired a \\\"security\\\" interest in the Inn, within the meaning of the Alaska Securitie Act. The court made this finding when it denied the Bank's motion for summary judgment on the Hernandezes' securities claims. But the jury ultimately found that McGrew acted only as a \\\"finder,\\\" thus relieving the Bank of any liability under the Alaska Securities Act. Therefore our determination of this issue would have no direct bearing on the outcome of this litigation.\\n\\\"Under ordinary cireumstances, we will refrain from deciding questions where events have rendered the legal issue moot. A claim is moot if it is no longer a present, live controversy, and the party bringing the action would not be entitled to relief, even if it prevails.\\\" But under the collateral consequences exception, we may decide a case that is otherwise moot where \\\"a judgment may carry indirect consequences in addition to its direct force, either as a matter of legal rules or as a matter of practical effect.\\\"\\nThe Bank contends that the superior court's security interest finding has \\\"important collateral consequences\\\" for the Bank. Because its insurer withdrew coverage and defense since its policy did not cover \\\"any claims arising out of efforts to promote the sale of a security,\\\" and because policy disputes under the insurance policy are submitted for binding arbitration, the Bank claims that the superior court's decision may \\\"unfairly prejudice the arbitrators\\\" or be considered dispositive in the future coverage dispute.\\nWe disagree. The mere possibility of \\\"unfairly prejudie[ing] the arbitrators\\\" is insufficient to compel resolution of an otherwise moot issue. And the Bank presents no legal authority explaining how the superior court's interlocutory finding would preclude an arbitration panel from reaching its own independent conclusion on this question of law. A court's resolution of an issue has preclusive effect only if that issue is essential to the final judgment, and other courts are not bound by interlocutory findings that are not essential to a final judgment. Accordingly, the superior court's finding that the Hernandezes acquired a security interest in the Inn will not be controlling in the Bank's insurance coverage arbitration because that finding .was not essential to the final judgment.\\nWe therefore conclude that this issue is moot and that the collateral consequences exception does not apply.\\nG. The Superior Court Did Not Err In Determining That The Hernandezes Were Entitled To Attorney's Fees And Costs.\\nIn the proceedings below, the superior court determined that the Hernandezes were the prevailing party and awarded them attorney's fees and costs. The Bank appeals this award on several grounds.\\n1. The Bank's deeds of trust did not preclude the superior court from awarding attorney's fees to the Hernan-dezes.\\nThe Bank first argues that the award of attorney's fees and costs in this case was governed by contract-namely, the deeds of trust securing the Bank's loans to the Hernandezes. The Bank points to the following provision in its deeds of trust:\\nIf [the Bank] institutes any suit or action to enforce any of the terms of this Deed of Trust, [the Bank] shall be entitled to recover such sum as the court may adjudge reasonable as attorneys' fees at trial and upon any appeal. Whether or not any eourt action is involved or pending, and to the extent not prohibited by law, all reasonable expenses [the Bank] incurs that in [the Bank's] opinion are necessary at any time for the protection of its interest or the enforcement of its rights shall become a part of the indebtedness payable on demand and shall bear interest at the Note rate....\\nThe Bank contends this suit required it to \\\"protect and enforce\\\" its right to repayment of the Hernandezes' loans, and the superior court was therefore required to grant the Bank attorney's fees and costs for, its defense.\\nWe have held that \\\"where a contract between the parties allows for one party to recover attorney's fees in the event of litigation, the contract provision must prevail\\\" over the general rule that the prevailing party in a civil case is awarded attorney's fees. Accordingly, an attorney's fees provision in the Bank's deeds of trust would arguably govern here. We interpret the relevant contract provision applying our independent judgment. \\\"In interpreting a contract, the object is to give effect to the reasonable expectations of the parties. To ascertain these expectations, the court looks to the language of the disputed provision, the language of other provisions of the contract, relevant extrinsic evidence, and case law interpreting similar provisions.\\\"\\nThe first sentence of the excerpt above states only that the Bank will be entitled to reasonable fees in any suit the Bank \\\"institutes\\\" to enforce the deed of trust. But this suit was brought by the Hernandezes, and the Bank did not bring a counterclaim to enforce the deed of trust. Therefore, this provision is inapplicable.\\nThe Bank seems to rely on the see-ond sentence of the quoted language, which allows \\\"all reasonable expenses\\\" necessary to protect the Bank's interest to be added to the note by \\\"becom[ing] a part of the indebtedness payable on demand,\\\" \\\"[wlhether or not any court action is involved or pending.\\\" Accordingly, the Bank may indeed be entitled to add certain litigation expenses to the indebtedness owed on the Hernandezes' notes. But the Bank did not counterclaim to enforce its notes, nor are we reviewing any judicial or nonjudicial proceeding to collect on the \\\"indebtedness payable.\\\" It would therefore defy the \\\"reasonable expectations\\\" of the parties to grant the Bank its litigation expenses outside of a proceeding to collect on the Hernandezes' notes.\\nBecause the attorney's fees provision in the parties' contractual agreement is inapplicable to the present dispute, the civil rules control.\\n2. The superior court did not err in finding that the Bank's offers of judgment were invalid under Civil Rule 68.\\nThe Bank argues that it made valid offers of judgment that were significantly higher than the Hernandezes' recovery at trial, thus rendering the- Bank the prevailing party under Civil Rule 68. Rule 68 encourages settlement by providing that if a party makes an offer of judgment that is rejected, the rejecting party must pay attorney's fees and costs if the final judgment \\\"is at least 5 percent less favorable\\\" than the rejected offer. However, \\\"(aln offer not in compliance with Rule 68 may not be considered in determining costs and attorney's fees.\\\" Whether an offer of judgment complies with Civil Rule 68 is a question of law that we review using the independent judgment standard.\\\"\\nThe Bank's offer presented two recovery options to the Hernandezes: (1) the sum of $230,000, plus interest; or (2) 105% of $212,167.67, Alaska Civil Rule 79 costs, and interest. Under either of these two options, however, $100,000 of this amount was to \\\"be paid by offset against the principal of one or more\\\" of three loans owed to the Bank: one belonging solely to Alaska Fur Gallery, one shared between Alaska Fur Gallery and Hernandez & Associates, and one shared between Alaska Fur Gallery and the Inn. Additionally, the offer provided that, with the exception of one particular loan, the Hernan-dezes would be \\\"discharged from their payment guarantees\\\" for the Inn's outstanding loans. However, the offer also listed four loans that would be \\\"confirmed as being valid and enforceable liabilities of the plaintiffs.\\\" In total, the principal on these loans exceeded $5 million.\\nWe agree with the superior court that this offer was invalid. First, both options were joint offers, which are usually invalid as Rule 68 offers of judgment due to apportionment difficulties. In determining whether a joint offer may nonetheless be valid, we consider two factors: (1) whether \\\"Itlhe settlement offer clearly indicated all claims between the parties would be resolved if the offer were accepted\\\"; and (2) whether apportionment difficulty actually exists.\\nWhile the Bank's offer may satisfy the first factor in that it would have resolved all of the plaintiffs' claims, \\\"apportionment difficulty\\\" indeed exists here. The Bank points out that Alaska Fur Gallery and Hernandez & Associates are both owned by members of the Hernandez family, who stated during trial that they did not see the two entities as \\\"distinct.\\\" But the offer of judgment not only required a lump sum to be apportioned between these two plaintiffs, but also implicated several different loans-one of which was held jointly by Alaska Fur Gallery and the Inn. Accordingly, it was not clear how the $100,000 \\\"offset\\\" against the loan principal would be apportioned or which of the three plaintiffs would reap the benefit of that principal reduction.\\nFinally, even if the Bank's offer were valid under Rule 68, it is unclear that it is a better offer than what the Hernandezes received from the final judgment. The offer contains a condition that the plaintiffs confirm the validity of over five million dollars in loans. The litigation did not satisfy that condition: while the final judgment in this case may not have relieved the Hernandezes of their debt obligations, it did not affirmatively confirm their loans as \\\"valid and en-foreeable liabilities.\\\" In this sense, it would be incorrect to say that the Bank's offer-\\\"confirming\\\" millions of dollars in debt liability with approximately $230,000 in compensation-was better than the plaintiffs' recovery at trial.\\n8. The superior court did not abuse its discretion by concluding that the Her- - nandezes were the prevailing party.\\nThe Bank argues that it was the prevailing party, based on its defeat of numerous claims and the small size of the Her-nandezes' award compared to the total damages sought. A superior court's prevailing party determination is reviewed for abuse of discretion.\\nAs we have held,\\nFor purposes of awarding fees pursuant to Civil Rule 82, the general rule is that the prevailing party is the one who has sue-cessfully prosecuted or defended against the action, the one who is successful on the main issue of the action and in whose favor the decision or verdict is rendered and the judgment entered.[ ]\\n\\\"[A] party does not have to prevail on all the issues in the case to be a 'prevailing par ty\\\" \\\"With few exceptions, the party who obtains an affirmative recovery is considered prevailing.\\\"\\nHere, the Hernandezes prevailed on their negligence claim, and recovered $94,500 in damages, plus interest. Based on this affirmative recovery, the superior court could reasonably conclude that the Hernandezes were the prevailing party.\\n4. The superior court did not err by declining to apportion costs.\\nThe Bank argues that the superior court erred in awarding the Hernandezes 100% of their costs, given the jury's verdict that the Bank was only 14% at fault for the Hernandezes' damages. The Bank requested a modified cost bill that would have apportioned only 14% of the Hernandezes' costs to the Bank, but the superior court denied that request. The court concluded, and the Her-nandezes argue on appeal, that Civil Rule 79(h) only applies to apportionment among multiple non-prevailing parties. Because this issue involves the interpretation of the civil rules, we review this question de novo.\\nCivil Rule 79(h) states: \\\"In a case in which damages are apportioned among the parties under AS 09.17.080, costs must be apportioned and awarded according to the provisions of Civil Rule 82(e).\\\" Rule 82(e) provides: \\\"In a case in which damages are apportioned among the parties under AS 09.17.080, the [attorney's] fees awarded to the plaintiff under (b)(1) of this rule must also be apportioned among the parties according to their respective percentages of fault.\\\" And the fee schedule in Rule 82(b)(1) requires the court to calculate attorney's fees based on the judgment and, if awarded, the prejudgment interest.\\nWe have previously held that \\\"the fit between Rule 79(h) and Rule 82(e) is snug.\\\"\\nWhen \\\"Rule 82(e) does not apply with regard to attorney's fees, . the same conclusion must follow with respect to Rule 79(h) costs.\\\" And because Rule 82(b)(1) calculates attorney's fees based on the final judgment awarded to the prevailing party-not the claimant's total injury before apportionment-attorney's fees calculated under Rule 82(b)(1) will already have been reduced to reflect any fault attributed to the plaintiff or to non-parties. Where there is only one non-prevailing party, no further reduction is nee-essary. Accordingly, Rule 82(e) apportionment should only occur if there are multiple non-prevailing parties to the litigation.\\nHere, although the jury found that the Hernandezes, the Bank, and Cronick all shared fault to the varying degrees, the Bank was the only non-prevailing party, and the final judgment against the Bank reflected the Bank's percentage of fault: 14%. Because the Bank was the only non-prevailing party against whom the jury awarded damages, the court correctly determined that Rule 82(e) did not apply; further apportionment of the attorney's fee award would result in a double reduction to that award. And because Rule 82(e) did not apply, Rule 79(h) was also inapplicable. We therefore conclude that the superior court did not err by declining to apportion costs.\\nv. CONCLUSION\\nWe AFFIRM the superior c\\u00e9urt's judgment in all respects.\\nFABE, Chief Justice, WINFREE and MAASSEN, Justices, not participating.\\n. AS 45.55.010-.55.995.\\n. Mallonee v. Grow, 502 P.2d 432, 439 (Alaska 1972) (citing Erick Rios Bridoux v. E. Air Lines, 214 F.2d 207, 207-10 (D.C.Cir.1954)).\\n. Turner v. Municipality of Anchorage, 171 P.3d 180, 185 (Alaska 2007) (quoting Wal-Mart, Inc. v. Stewart, 990 P.2d 626, 631-32 (Alaska 1999)) (internal quotation marks omitted).\\n. Id. (second alteration in original) (quoting Bierria v. Dickinson Mfg. Co., 36 P.3d 654, 656 (Alaska 2001)) (internal quotation marks omitted).\\n. Cartee v. Cartee, 239 P.3d 707, 712 (Alaska 2010) (citing Dobos v. Ingersoll, 9 P.3d 1020, 1023 (Alaska 2000)).\\n. Cummins, Inc. v. Nelson, 115 P.3d 536, 541 (Alaska 2005) (citing Reich v. Cominco Alaska, Inc., 56 P.3d 18, 25 (Alaska 2002)).\\n. Id. (citing Manes v. Coats, 941 P.2d 120, 125 (Alaska 1997)).\\n. Ogar v. City of Haines, 51 P.3d 333, 335 (Alaska 2002) (citing Hubbard v. Hubbard, 44 P.3d 153, 155 (Alaska 2002)).\\n. Williams v. GEICO Cas. Co., 301 P.3d 1220, 1225 (Alaska 2013) (citing DeNardo v. Cutler, 167 P.3d 674, 677-78 (Alaska 2007).\\n. See, e.g., Valdez Fisheries Dev. Ass'n, Inc. v. Froines, 217 P.3d 830, 833 (Alaska 2009) ('The purpose of conferring discretion on the trial court to determine reasonable actual attorney's fees is to allow it to use its greater familiarity with the details of the case to perform an objective inquiry into these questions [of reasonable litigation expenses] and their like.\\\" (internal quotation marks omitted)).\\n. Alaska R. Civ. Pr. 82(b)(3)(C)-(E).\\n. Progressive Corp. v. Peter ex rel. Peter, 195 P.3d 1083, 1092 (Alaska 2008) (citing Interior Cabaret, Hotel, Rest. & Retailers Ass'n v. Fairbanks N. Star Borough, 135 P.3d 1000, 1002 (Alaska 2006)).\\n. Anderson v. Alyeska Pipeline Serv. Co., 234 P.3d 1282, 1286 (Alaska 2010) (citing Ellison v. Plumbers & Steam Fitters Union Local 375, 118 P.3d 1070, 1073-74 (Alaska 2005)).\\n. Ford v. Municipality of Anchorage, 813 P.2d 654, 655 (Alaska 1991).\\n. Casey v. Semco Energy, Inc., 92 P.3d 379, 382 (Alaska 2004) (citing Old Harbor Native Corp. v. Afognak Joint Venture, 30 P.3d 101, 104 (Alaska 2001).\\n. The Hernandezes' motion sought a finding of \\\"Contempt Upon This Court (Similar To Fraud Upon the Court),\\\" which the superior court analyzed under Alaska's \\\"fraud upon the court\\\" law. The Hernandezes do not appear to dispute this interpretation.\\n. See Christianson v. First Nat'l Bank Alaska, Mem. Op. & J. No. 1445, 2012 WL 6062124 (Alaska Dec. 5, 2012).\\n. The Bank raises additional issues regarding attorney's fees and costs that are unrelated to its alleged litigation conduct. These are addressed separately in subpart IV.G.\\n. See Alaska R. Civ. P. 60(b); see also Higgins v. Municipality of Anchorage, 810 P.2d 149, 154 (Alaska 1991) (concluding that this court's prior judgment \\\"should be set aside for fraud upon the court\\\"); Mallonee v. Grow, 502 P.2d 432, 440 (Alaska 1972) (affirming a superior court's decision to set aside its prior order based on a finding of fraud upon the court).\\n. Murray v. Ledbetter, 144 P.3d 492, 497 (Alaska 2006) (citing Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 244-45, 64 S.Ct. 997, 88 L.Ed. 1250 (1944)).\\n. Hazel-Atlas Glass Co., 322 U.S. at 244, 64 S.Ct. 997.\\n. See Murray, 144 P.3d at 497.\\n. Id. at 498.\\n. Id. at 499 (quoting Allen v. Bussell, 558 P.2d 496, 500 (Alaska 1976)) (internal quotation marks omitted).\\n. Id. (alteration in original) (quoting Lowe v. Lowe, 817 P.2d 453, 457 n. 9 (Alaska 1991)) (internal quotation marks omitted).\\n. Id. (quoting Allen, 558 P.2d at 500) (internal quotation marks omitted).\\n. Id. (citing Mallonee v. Grow, 502 P.2d 432, 438-39 (Alaska 1972); Higgins v. Municipality of Anchorage, 810 P.2d 149, 154 (Alaska 1991).\\n. 502 P.2d at 438-39.\\n. Id.\\n. 62 F.3d 1128, 1129-31 (9th Cir.1995).\\n. Id. at 1132.\\n. Id. at 1131-32.\\n. State v. Alaska Cont'l Dev. Corp., 630 P.2d 977, 991 (Alaska 1980) (internal quotation marks omitted).\\n. Mallonee v. Grow, 502 P.2d 432, 439 (Alaska 1972).\\n. Lawer testified on March 31, 2009, that he had completed his review of McGrew's loans before \\\"the last year or so.\\\" The first AFG trial took place in June 2008.\\n. Although the Hernandezes did not attribute an exact date to this meeting, LeBaron testified that he received a loan resulting from this meeting \\\"four or five\\\" months following McGrew's death in December 2004.\\n. See Murray v. Ledbetter, 144 P.3d 492, 499 (Alaska 2006) (quoting Lowe v. Lowe, 817 P.2d 453, 457 n. 9 (Alaska 1991)) (internal quotation marks omitted).\\n. See Alaska Cont'l Dev. Corp., 630 P.2d at 991 (\\\"While perjury by a witness is always a cause for concern, we do not believe, even if we were to accept the state's argument that [the opposing party's witness] committed perjury, that in this case it would rise to the level of 'the most egre gious conduct involving a corruption of the judicial process itself,\\\" that we have required for a finding of 'fraud upon the court' in past cases.\\\" (quoting Aller v. Bussell, 558 P.2d 496, 500 (Alaska 1976))).\\n. See 62 F.3d 1128, 1129-31 (9th Cir.1995).\\n. See Murray, 144 P.3d at 499.\\n. See Alaska R. Civ. P. 60(b) (noting the \\\"power of a court to entertain an independent action to relieve a party from a judgment, order or proceeding . or to set aside a judgment for fraud upon the court\\\").\\n. Williams v. GEICO Cas. Co., 301 P.3d 1220, 1225 (Alaska 2013) (citing DeNardo v. Cutler, 167 P.3d 674, 677-78 (Alaska 2007).\\n. See Taylor Constr. Servs., Inc. v. URS Co., 758 P.2d 99, 102-03 (Alaska 1988) (2-2 decision) (opinion of Rabinowitz, C.J.) (\\\"We have repeatedly recognized the trial court's broad dis-1 cretion in awarding attorney's fees. We have required only that the trial court specify its reasons in the record when it departs from the fee schedule of Rule 82(a).\\\" (citations omitted)).\\n. See Murray, 144 P.3d at 499 (quoting Lowe v. Lowe, 817 P.2d 453, 457 n. 9 (Alaska 1991)) (internal quotation marks omitted).\\n. See 12 C.F.R.\\u00a7 7.1002 (2014).\\n. The Hernandezes' securities claims were based on the Alaska Securities Act. Federal regulations expressly permit a national bank to act as a finder, and state law may not \\\"prevent[] or significantly interfere[] with the national bank's exercise of its powers.\\\" Gutierrez v. Wells Fargo Bank, NA, 704 F.3d 712, 722 (9th Cir.2012) (quoting Barnett Bank of Marion Cnty., N.A. v. Nelson, 517 U.S. 25, 33, 116 S.Ct. 1103, 134 L.Ed.2d 237 (1996)) (internal quotation marks omitted); 12 C.F.R. \\u00a7 7.1002(a) (\\\"It is part of the business of banking under 12 U.S.C. 24(Seventh) for a national bank to act as a finder, bringing together interested parties to a transaction.\\\"); see also Rose v. Chase Bank USA, NA., 513 F.3d 1032, 1037 (9th Cir.2008) (\\\"[The usual presumption against federal preemption of state law is inapplicable to federal banking regulation.\\\" (citations and internal quotation marks omitted)).\\n. Turner v. Municipality of Anchorage, 171 P.3d 180, 185 (Alaska 2007) (alteration in original) (quoting Wal-Mart, Inc. v. Stewart, 990 P.2d 626, 631-32 (Alaska 1999)).\\n. The jury was instructed, \\\"You may believe all or none of the testimony of any witness. You need not believe a witness even if the witness'(s] testimony is uncontradicted.\\\"\\n. The superior court also denied the Hernan-dezes' subsequent motion for JNOV on the \\\"finder\\\" issue and in the alternative, a new trial on several issues, including the securities claims. We conclude that for the same reasons as articulated above, the superior court did not err in denying this motion.\\n. The Hernandezes do contend that the absence of an instruction regarding nominee loans \\\"allowed jurors to more easily accept [the Bank's] repeated claims . that McGrew's wrongful conduct was merely minor and was undertaken only in an attempt to assist his clients.\\\" But they do not appear to argue that such an impression would have affected the jury's consideration of the non-securities claims.\\n. AS 45.55.930(g).\\n. Cartee v. Cartee, 239 P.3d 707, 712 (Alaska 2010) (citing Dobos v. Ingersoll, 9 P.3d 1020, 1023 (Alaska 2000)).\\n. 100 P.3d 881 (Alaska 2004).\\n. See id. at 888. In Fred Meyer, we discussed three evidentiary objections to the admission of an expert report: 1) that the report violated the rule limiting an opposing party's access to non-testifying expert witnesses; 2) that the report's author lacked the requisite personal knowledge for a lay witness; and 3) that the report was inadmissable hearsay. Id.\\n. Id. at 882, 887.\\n. Id. at 888.\\n. See id. (\\\"[The plaintiff] did not offer the report for the truth of the matters stated; rather he offered it to show that Fred Meyer had notice of its potential violations of Alaska law.\\\" (footnote omitted)).\\n. See Cartee v. Cartee, 239 P.3d 707, 712 (Alaska 2010) (\\\"A trial court's decision to admit or exclude evidence is reviewed by us for abuse of discretion, and will be upset only if we find there has been an error which affected the substantial rights of a party.\\\" (citing Dobos v. Ingersoll, 9 P.3d 1020, 1023 (Alaska 2000))).\\n. See Cummins, Inc. v. Nelson, 115 P.3d 536, 541 (Alaska 2005) (\\\"Without a timely objection, we will only review [jury] instructions for plain error. A special verdict form is a type of jury instruction subject to the same standard of review.\\\" (footnote omitted)). We note that when a timely objection has been made, we review jury instructions de novo. Id. Here, however, the Hernandezes point to no objection raised below, never argue that we should apply our independent judgment, and expressly assert that the trial court committed \\\"plain error.\\\"\\n. Emphasis added.\\n. See AS 09.10.070(a).\\n. Gefre v. Davis Wright Tremaine, LLP, 306 P.3d 1264, 1274 (Alaska 2013).\\n. Id. at 1275.\\n. Id. (quoting Cameron v. State, 822 P.2d 1362, 1366 (Alaska 1991)) (internal quotation marks omitted).\\n. Palmer v. Borg-Warner Corp., 838 P.2d 1243, 1247 (Alaska 1992) (quoting Sharrow v. Archer, 658 P2d 1331, 1333 (Alaska 1983)) (internal quotation marks omitted).\\n. Gefre, 306 P.3d at 1277 (quoting Williams v. Williams, 129 P.3d 428, 432 (Alaska 2006)) (internal quotation marks omitted).\\n. See, e.g., Dressel v. Weeks, 779 P.2d 324, 329 (Alaska 1989).\\n. See Curran v. Mount, 657 P.2d 389, 391 (Alaska 1982) (adopting the clear and convincing standard for adverse possession cases).\\n. 838 P.2d at 1251.\\n. Id.; see also Waage v. Cutter Biological Div. of Miles Labs., Inc., 926 P.2d 1145, 1149 (Alaska 1996).\\n. Palmer, 838 P.2d at 1251.\\n. Waage, 926 P.2d at 1149.\\n. Ogar v. City of Haines, 51 P.3d 333, 335 (Alaska 2002) (citing Hubbard v. Hubbard, 44 P.3d 153, 155 (Alaska 2002)).\\n. See, e.g., Palmer, 838 P.2d at 1251 ('The determination of when a fraudulent misrepresentation or concealment should have been discovered is a question of fact for the trial court to decide.\\\" (citing Carter v. Hoblit, 755 P.2d 1084, 1087 (Alaska 1988))).\\n. Shumway v. Betty Black Living Trust, 321 P.3d 372, 375 (Alaska 2014).\\n. Valdez Fisheries Dev. Ass'n v. Alyeska Pipeline Serv. Co., 45 P.3d 657, 672 (Alaska 2002).\\n. See AS 09.25.010(a)(13).\\n. Id.\\n. See 12 C.F.R. \\u00a7 7.1002(a) (\\\"It is part of the business of banking under 12 U.S.C. 24(Seventh) for a national bank to act as a finder, bringing together interested parties to a transaction.\\\"); see also Gutierrez v. Wells Fargo Bank, NA, 704 F.3d 712, 722 (9th Cir.2012) (noting that state law may not \\\"prevent or significantly interfere with the national bank's exercise of its powers.\\\" (citation and internal quotation marks omitted)).\\n. Fairbanks Fire Fighters Ass'n, Local 1324 v. City of Fairbanks, 48 P.3d 1165, 1167 (Alaska 2002) (alteration omitted) (quoting Gerstein v. Axtell, 960 P.2d 599, 601 (Alaska 1998)) (internal quotation marks omitted).\\n. In re Mark V., 324 P.3d 840, 843 (Alaska 2014) (quoting In re Joan K., 273 P.3d 594, 598 (Alaska 2012)) (internal quotation marks omitted).\\n. See Restatement (Seconp) or Jupcments \\u00a7 27 cmt. h (1982) (\\\"If issues are determined but the judgment is not dependent upon the determinations, relitigation of those issues in a subsequent action between the parties is not precluded. Such determinations have the characteristics of dicta, and may not ordinarily be the subject of an appeal by the party against whom they were made.\\\").\\n. O'Connell v. Will, 263 P.3d 41, 47 (Alaska 2011) (quoting Rockstad v. Erikson, 113 P.3d 1215, 1224 (Alaska 2005)) (internal quotation marks omitted); see also Alaska R. Civ. P. 82(a) (\\\"Except as otherwise provided by law or agreed to by the parties, the prevailing party in a civil case shall be awarded attorney's fees calculated under this rule.\\\").\\n. See Casey v. Semco Energy, Inc., 92 P.3d 379, 382 (Alaska 2004) (citing Old Harbor Native Corp. v. Afognak Joint Venture, 30 P.3d 101, 104 (Alaska 2001)).\\n. Peterson v. Wirum, 625 P.2d 866, 872 n. 10 (Alaska 1981) (citation omitted).\\n. See id.\\n. Pagenkopf v. Chatham Elec., Inc., 165 P.3d 634, 644 (Alaska 2007).\\n. Alaska R. Civ. P. 68(a), (b). If there are multiple defendants, the threshold is ten percent rather than five percent. Alaska R. Civ. P. 68(b).\\n. Grow v. Ruggles, 860 P.2d 1225, 1227 (Alaska 1993).\\n. Anderson v. Alyeska Pipeline Serv. Co., 234 P.3d 1282, 1286 (Alaska 2010).\\n. See Brinkerhoff v. Swearingen Aviation Corp., 663 P.2d 937, 943 (Alaska 1983).\\n. John's Heating Serv. v. Lamb, 46 P.3d 1024, 1042 & n. 85 (Alaska 2002) (alteration in original) (citation and internal quotation marks omitted).\\n. The Bank contends that the Inn should not be considered a plaintiff for purposes of the Rule 68 offer because it had no individual claim aside from those raised by the Hernandezes, and because the court instructed the jury that the word \\\"plaintiff\\\" or \\\"plaintiffs\\\" in the instructions referred to Alaska Fur Gallery and Hernandez & Associates. However, the Bank itself referred to the Inn as a separate party in its offer of judgment, and the Bank provides no authority as to why the Inn is not a relevant party for Rule 68 purposes.\\n. Progressive Corp. v. Peter ex rel. Peter, 195 P.3d 1083, 1092 (Alaska 2008) (citing Interior Cabaret, Hotel, Rest. & Retailers Ass'n v. Fairbanks N. Star Borough, 135 P.3d 1000, 1002 (Alaska 2006).\\n. Day v. Moore, 771 P.2d 436, 437 (Alaska 1989) (quoting Adoption of V.M.C., 528 P.2d 788, 795 n. 14 (Alaska 1974)) (internal quotation marks omitted).\\n. Id. (quoting Malvo v. J.C. Penney Co., 512 P.2d 575, 586 (Alaska 1973)).\\n. Alaska Ctr. for the Env't v. State, 940 P.2d 916, 921 (Alaska 1997) (citing Hillman v. Nationwide Mut. Fire Ins. Co., 855 P.2d 1321, 1327-28 (Alaska 1993)).\\n. See E.P. v. Alaska Psychiatric Inst., 205 P.3d 1101, 1106 (Alaska 2009) (\\\"We . review questions of statutory interpretation de novo.\\\"); City of Kodiak v. Parish, 986 P.2d 201, 202 (Alaska 1999) (applying independent judgment to the interpretation of Rule 82(e)); Ford v. Municipality of Anchorage, 813 P.2d 654, 655 (Alaska 1991) (\\\"Since this case involves the interpretation of a civil rule, we exercise our independent judgment.\\\").\\n. Parish, 986 P.2d at 204.\\n. Id.\"}"
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+"{\"id\": \"6915194\", \"name\": \"GRAHAM R., Appellant, v. JANE S., Appellee\", \"name_abbreviation\": \"Graham R. v. Jane S.\", \"decision_date\": \"2014-09-19\", \"docket_number\": \"No. S-15158\", \"first_page\": \"688\", \"last_page\": \"697\", \"citations\": \"334 P.3d 688\", \"volume\": \"334\", \"reporter\": \"Pacific Reporter 3d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T23:02:26.429743+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before: FABE, Chief Justice, WINFREE, STOWERS, MAASSEN, and BOLGER, Justices.\", \"parties\": \"GRAHAM R., Appellant, v. JANE S., Appellee.\", \"head_matter\": \"GRAHAM R., Appellant, v. JANE S., Appellee.\\nNo. S-15158.\\nSupreme Court of Alaska.\\nSept. 19, 2014.\\nJohn C. Pharr, Law Offices of John C. Pharr, P.C., Anchorage, for Appellant.\\nKathryn Ruff Soden, ANDVSA Legal Advocacy Project, Anchorage, for Appellee.\\nBefore: FABE, Chief Justice, WINFREE, STOWERS, MAASSEN, and BOLGER, Justices.\", \"word_count\": \"4859\", \"char_count\": \"30542\", \"text\": \"OPINION\\nMAASSEN, Justice.\\nI. INTRODUCTION\\nGraham R. and Jane S. have one child. A 2006 court order granted Graham sole legal and primary physical custody. In 2012 Graham traveled to California for heart surgery and took the child with him, cutting off contact with Jane and causing her to miss a number of scheduled visits. When Graham returned to Alaska Jane moved for sole legal and primary physical custody, and the superior court granted her motion after an evi-dentiary hearing. Graham appeals the superior court's order, arguing that it was barred by principles of res judicata and collateral estoppel; that the court erred in finding that his interference with Jane's visitation rights was an act of domestic violence that constituted changed circumstances; and that the court erred in admitting evidence of his criminal convictions and of the child's preferences. We affirm the superior court's order modifying custody, concluding that there was no error in its decision not to apply res judicata or collateral estoppel; that there were changed circumstances justifying a modification of custody; and that any eviden-tiary errors were harmless.\\nII. FACTS AND PROCEEDINGS\\nGraham and Jane were both married to others when their daughter Gabby was born in May 2008. According to Graham, Jane had agreed to carry a child to be adopted by him and his wife; according to Jane, Graham coerced her into it. In any event, Jane signed a document purporting to give Gabby to Graham and his wife a few days after the child was born. But Jane revoked that document less than a year later, and a dispute over Gabby's custody began.\\nA. The First Custody Order Grants Graham Primary Custody.\\nGraham and Jane reached a custody and visitation agreement that was approved by court order in March 2006. The order granted sole legal and primary physical custody of Gabby to Graham but allowed Jane visitation on alternate weekends, with additional visitation in the summer. Graham was allowed to take extended winter vacations with Gabby, so long as Jane was given make-up visits; the order also specifically authorized travel to the Philippines, where both parents have family. But travel required 30 days' advance notice to the other parent, a copy of the itinerary, contact information, and a copy of the return tickets.\\nB. Graham Travels To California With Gabby.\\nOn March 18, 2012, Graham suffered a heart attack and was transported from Cor-dova to Anchorage for emergency treatment. Graham's wife went to Anchorage as well, taking Gabby along with her. Jane, according to the schedule, was supposed to have Gabby on the weekend; but Graham's wife called the Cordova Family Resource Center, the usual location of the parents' custody exchanges, and, as she later testified, told someone there \\\"we can't have the exchange for [Jane's] visitation because of emergencies [that] happen{ed] in our family.\\\" Nicole Son-ger, the executive director of the Family Resource Center, testified about this message as well; she described its substance as only \\\"that there would not be a visitation today due to . [Graham] being in Anchorage,\\\" with no information about how to call Graham back or how to get in touch with Gabby. Jane also testified that she had no contact number for Graham and did not know where Gabby had gone.\\nOn March 28, Graham left Anchorage for Los Angeles, California, accompanied by his wife and Gabby. He underwent heart surgery in Los Angeles, was discharged from the hospital in stable condition on April 10, but remained in California.\\nGabby continued to miss her scheduled weekend visits with Jane; according to Jane, she still did not know her daughter was in California. After a month of this, the Cor- dova Family Resource Center received a faxed letter from a California attorney representing Graham. The letter, addressed to Songer, informed her that Graham had undergone \\\"a 12-hour heart surgery in Los Angeles,\\\" that \\\"his doctors estimated 3 months of recovery,\\\" that Gabby \\\"wanted to stay with [her] dad,\\\" and that Gabby therefore had been enrolled at a local elementary school \\\"in order not to disrupt her education.\\\" The letter stated that \\\"[wlith no complications in his recovery, [Graham's] family plans to go back. to Cordova in 3 months.\\\" The letter advised Songer to direct any inquiries \\\"to the undersigned,\\\" Graham's attorney. It provided no contact information for Graham or Gabby.\\nOn May 24, Graham called the Cordova Family Resource Center. According to Son-ger, Graham said \\\"that if [Jane] wanted visitation, then he would send [Gabby] back but [Jane] needed to pay for the ticket[,] and he needed to know immediately because he was going to send her the very next day.\\\" Son-ger testified that she passed this message on to Jane; when Graham called again the next day, Songer told him \\\"that if he would send the receipt along with [Gabby], I would make sure that [Jane] got that receipt.\\\" But Graham demanded assurance that Jane would pay for the ticket, and when Songer failed to give it he hung up on her.\\nFearing Gabby would never return, Jane sought a protective order to end Graham's interference with her visitation rights. The court issued an ex parte 20-day protective order on May 25, granting Jane temporary custody and granting visitation rights to Graham \\\"[olnce a week telephonically arranged and supervised by [the Cordova Family Resource Center].\\\" But the order had no immediate effect, as neither Graham nor Gabby could be found.\\nA few days later, Songer received another faxed letter from Graham's California attorney. The letter stated that Graham had returned to Anchorage \\\"for his rehabilitation and visitation by his cardiologist\\\" but that his wife and Gabby \\\"will be back in Cordova within this week.\\\" The letter enclosed a proposed summer visitation schedule and invited Songer to email the attorney with any questions. |\\nOn June 1, Graham's wife brought Gabby to the Cordova Family Resource Center for the start of summer visitation with Jane. During a July 16 hearing, the parents stipulated to a long-term protective order that prohibited either of them from taking Gabby away from Alaska. The magistrate judge heard no evidence about Graham's interference with Jane's visitation and, with the parties' concurrence, expressly declined to make any findings of domestic violence, child support, custody, or visitation. Through her attorney, Jane noted that she would be seeking custody modification in superior court.\\nC. The Modification Order Grants Jane Primary Custody.\\nJane filed a motion to modify the existing custody order in October 2012, seeking sole legal and primary physical custody. The superior court held a hearing on the motion in April 2018. The court rejected Graham's arguments that the earlier domestic violence proceeding barred Jane's modification motion under principles of res judicata or collateral estoppel, then granted sole legal and primary physical custody to Jane. Graham received alternating weekend visits as well as six consecutive weeks of summer visitation; essentially, the previous custody arrangement was reversed.\\nThe modification order was based in part on the court's finding that Graham committed the crime of custodial interference when he traveled to California with Gabby in the spring of 2012. The court found that this constituted a crime of domestic violence and therefore a change in cireumstances under AS 25.20.110(c). The court then assessed the statutory best interest factors and concluded it was in Gabby's best interests that Jane have primary physical and sole legal custody.\\nGraham appeals the modification order, challenging (1) the superior court's refusal to apply res judicata or collateral estoppel to the domestic violence petition in order to bar Jane's later motion to modify custody, (2) the finding that modification was proper under the cireumstances, and @) two evidentiary decisions: the admission of Gabby's hearsay statements about her preferences and the admission of Graham's misdemeanor convie-tions from 1996 and 1997.\\nIII. STANDARDS OF REVIEW\\n\\\"A determination that a claim or issue is precluded is a question of law which we review de novo.\\\"\\nIn appeals of custody determinations and modifications, we allow broad discretion to the superior court, reversing only if the superior court's findings of fact are clearly erroneous or if it abused its discretion. \\\"A factual finding is clearly erroneous when a review of the record leaves the court with a definite and firm conviction that the superior court has made a mistake.\\\" \\\"An abuse of discretion exists where the superior court considered improper factors in making its custody determination, failed to consider statutorily mandated factors, or assigned disproportionate weight to particular factors while ignoring others.\\\"\\nThe superior court's admission of evidence is reviewed for abuse of discretion But even if admission was erroneous, \\\"[wle will reverse an evidentiary ruling only if [the] error prejudicially affected a party's substantial rights.\\\"\\nIV. DISCUSSION\\nA. The Superior Court Correctly Ruled That Jane's Motion To Modify Custody Was Not Barred By Res Judi-cata Or Collateral Estoppel.\\nGraham contends that because Jane based her petition for a domestic violence restraining order on her allegations of custodial interference, and because the parties resolved the petition by stipulating to the entry of a long-term order, Jane should have been barred from later relying on the same allegations of custodial interference when she moved to modify custody. But the parties clearly and explicitly declined to litigate the issues of domestic violence and custody in the earlier proceeding, and neither res judicata nor collateral estoppel applies.\\nRes judicata bars relitigation of a claim when there was \\\"(1) a final judgment of the merits, (2) from a court of competent jurisdiction,[ ] (8) in a dispute between the same parties . about the same cause of action.\\\" But as we noted in McAlpine v. Pacarro, res judicata does not apply to custody modifications; the governing statute, AS 25.20.110, \\\"provides an exception to the general principle that final judgments should not be disturbed-it allows parents to seek modification of child eustody based on a change of cireumstances if modification is in the best interests of the child.\\\" On modification motions, thus, relitigation of the same issues is prevented in large part by the requirement that the movant prove a \\\"substantial change in circumstances\\\" before being entitled to any relief; a parent who attempts to reliti- gate the same set of cireumstances will be unable to eross this threshold.\\nWe further held in McAlpine that although res judicata does not apply to modification motions, \\\"the principle of finality does-parties should not be allowed to relitigate 'in the hope of gaining a more favorable position.'\\\" But when a parent seeks to modify custody, both the statutory goals and the relevant considerations are much different from those in a domestic violence proceeding. We explained some of the differences in Lashbrook v. Lashbrook. The issue was whether a father's due process right to a hearing on a motion to modify custody was satisfied by the fact that he had earlier attended a hearing on a domestic violence petition, addressing some of the same factual issues. We held that the proceedings were too different. We also noted that \\\"the ultimate focus of the custody modification statute is the best interests of the children,\\\" which requires consideration of nine statutory factors, only one of which is domestic violence. We noted that a finding of domestic violence in a modification proceeding satisfies only the movant's \\\"threshold burden of establishing changed cireumstances\\\"; the movant still has the burden of proving that those changed cireumstances warrant modification of the existing eustody order. \\\"In sharp contrast,\\\" we noted, \\\"the exclusive focus of [a domestic violence proceeding under] AS 18.66.100 is domestic violence.\\\" In the domestic violence proceeding, a finding of domestic violence may result in a temporary change of custody, but the proceeding \\\"is designed to provide emergency relief from domestic violence on a short-term basis, presumably until more permanent relief can be sought and fashioned,\\\" for example through a motion to modify custody. In McAlpine, these fundamental differences persuaded us that a hearing on a domestic violence petition was not a good substitute for the hearing that due process requires on a motion to modify custody.\\nThe differences were made explicit in this case. At the hearing on the long-term protective order, Jane's counsel repeatedly asserted that the hearing was not about custody but only about protecting Jane's visitation rights; Graham's counsel countered that the relief Jane requested was a de facto custody modification, which would keep Gabby with Jane in Cordova. But the parties agreed on the record to the essential relief Jane was seeking: that \\\"[nleither party shall remove the child[ ] from Alaska\\\" during the pendency of the order. The parties also expressly agreed that this relief could be, and should be, ordered without a finding that domestic violence had occurred, and the magistrate judge therefore intentionally left blank the spaces on the form order that called for findings about past domestic violence and threats. And again with the parties' express concurrence, the magistrate judge stated repeatedly that she was \\\"not going to address anything with child support, custody, or visitation\\\": \\\"I am not changing the custody order that is in effect by the superior court in this particular case. That's not what this hearing was about.\\\" In short, the parties repeatedly and expressly declined to litigate issues of domestic violence or custody at the long-term domestic violence hearing, and there is no good argument that Jane, in her motion to modify custody, was attempting to relitigate issues that had already been decided. '\\nWe acknowledged in McAlpine that collateral estoppel could apply in the custody modification context, to prevent the relitigation of domestic violence allegations that had already been \\\"actually raised and adjudicated.\\\" Collateral estoppel bars relitigation when issues of fact or law \\\"were actually litigated and necessarily decided in [a] prior proceeding.\\\" But as the record shows, neither domestic violence nor eustody was \\\"actually litigated and necessarily decided\\\" in the protective order proceeding, and collateral estoppel does not apply.\\nB. The Trial Court Did Not Err By Granting Jane's Motion To Modify Custody.\\nThe core of Graham's argument is that the superior court should not have modified the 2006 order granting him Gabby's primary physical custody and sole legal custody. A court may modify a custody award if it determines that (1) \\\"a change in cireum-stances requires the modification of the award\\\" and (2) \\\"the modification is in the best interests of the child.\\\" The superior court here found both requirements satisfied and modified Gabby's custody arrangement as requested by Jane; we see no error or abuse of discretion in its decision.\\n1. Graham's interference with Jane's visitation rights constituted a change in circumstances.\\nThe superior court found a change in cireumstances justifying a modification of custody because Graham committed custodial interference, a crime of domestic violence. Under AS 11.41.380(a), a person commits second degree custodial interference\\nif, being a relative of a child under 18 years of age . and knowing that the person has no legal right to do so, the person takes, entices, or keeps that child . from a lawful custodian with intent to hold the child . for a protracted period. [Emphasis added.]\\nThe 2006 custody order granted sole legal custody and primary physical custody to Graham. Jane was not the custodial parent (although she had visitation rights), and the \\\"custodial interference\\\" statute, by its terms, does not apply.\\nHowever, \\\"[wle may affirm a judgment on any grounds that the record supports, even grounds not relied on by the superior court.\\\" We have repeatedly held that \\\"actions by a custodial parent which substantially interfere with the noncustodial parent's visitation rights are sufficient to constitute a change in cireumstances.\\\" Such interference can include \\\"a detrimental and well-established pattern of behavior on the part of [the custodial parent] to 'erode the bonds of love and affection between the [other parent] and the children'\\\" It can also include a custodial parent's attempt to unilaterally impose conditions on a court order, or a parent's failure to comply with an existing custody and visitation order.\\nThe custody agreement at issue in Kelly v. Joseph granted the father primary physical custody and granted the mother visitation rights. The father inhibited phone contact between the children and their mother, denied one Christmas visit, and cut short another one without good reason. We agreed that the father's breach of the visitation provisions satisfied the \\\"changed cireumstances\\\" requirement for modifying custody.\\nIn this case, Graham's interference with Jane's visitation rights was obvious and significant. He took Gabby from Cordova to Anchorage, then from Anchorage to California, without informing Jane beforehand. By so doing he caused Jane to miss six every-other-weekend visitations in a row. His disregard for Jane's rights was compounded by his failure for over two months to inform her they had left Cordova, where they had gone, and when they could be expected to return, and by his failure to provide any contact information so that Jane could at least communicate with Gabby during their separation. And even when Graham finally divulged the basic information-via his attorney's letter, faxed to the Cordova Family Resource Center-he still failed to provide any means of contact between Jane and her daughter. Instead he informed Jane that he bad enrolled Gabby in school in California and intended to remain there another three months. |\\nGraham relies heavily on his critical medical condition as exeusing his failure to inform Jane of Gabby's whereabouts. But he did manage to communicate with the Cordova Family Resource Center shortly before the next scheduled visitation, albeit through his wife and cryptically. Even after his release from the hospital in early April he continued to ignore Jane's visitation rights for two more weeks, and when he did communicate with her, through his attorney, he still failed to provide any means of contact between Gabby and Jane. Another month went by before he called the Family Resource Center himself, only to demand that Jane pay Gabby's way back to Cordova if she wanted her visitation to resume.\\nThe superior court considered this evidence and found that Graham kept Gabby away from Jane with an intent to continue doing so \\\"for a protracted period.\\\" The court's factual finding amply supports the conclusion that Graham substantially interfered with Jane's visitation rights. This was a substantial change in cirenmstances justify, ing a modification of the existing custody arrangement.\\n2. The superior court did not err in determining that it was in Gabby's best interests to modify the custody order.\\nOnce a court determines there has been a change in circumstances, it must assess the factors of AS 25.24.150(c) to determine whether a custody modification is in the best interests of the child. The superior court made findings on each relevant statutory factor and on balance found that they favored an award of sole legal and primary physical custody to Jane.\\nGraham challenges this award, reasoning that he had legal custody under the prior order; that it was therefore up to him to decide whether moving to California was in Gabby's best interests; and that his stay in California was temporary, and a temporary departure from the visitation schedule cannot amount to a change in cirenmstances justifying a modification of custody. But as explained above, the superior court's modification order was clearly supported by its findings about Graham's interference with Jane's visitation rights.\\nHaving found a change in circumstances, the superior court made a number of other findings in support of its decision that modifying custody was in Gabby's best interests. It found that there was love and affection between Gabby and both parents, \\\"so this factor does not change the balance of the other factors.\\\" It found that while the parents had been equally capable of caring for Gabby when the 2006 order was entered, Graham's serious heart issues now jeopardized his capability; this factor favored Jane. It found that Jane was better positioned to provide Gabby a stable home in Cordova given Graham's frequent travel for medical appointments. It found that Jane now had the \\\"better ability and willingness to care for the emotional, religious and social needs of [Gabby]\\\" given Graham's medical limitations and the \\\"little evidence\\\" presented by Graham that he \\\"has any willingness or ability to meet these needs.\\\"\\nThe court also found that Jane \\\"appears willing to facilitate [Gabby's] relationship with [Graham] to some extent but by contrast [Graham] seems less willing to facilitate [Gabby's] relationship to [Jane].\\\" The court took into account Graham's travel to California with Gabby, which, as discussed above, amounted to substantial interference with Jane's visitation rights and was appropriately considered, even though not amounting to domestic violence. Finally, it found no relevant evidence of substance abuse in either household.\\nThe superior court's factual findings are not clearly erroneous, and we see no abuse of discretion in its weighing of the best interest factors. \\\"We will not reweigh the evidence when the record provides clear support for the trial court's ruling.\\\" We affirm the superior court's conclusion that it was in Gabby's best interests to award sole legal and primary physical custody to Jane.\\nC. Any Error In The Admission Of The Child's Hearsay Statements Was Harmless.\\nGraham challenges the court's consideration of testimony given by Jane and the executive director of the Cordova Family Resource Center, relaying statements Gabby allegedly made to them about her preference to be with Jane. Graham argues that Gabby's statements are hearsay and do not fall within any exception to the hearsay rule. But we need not decide whether the evidence was properly admitted, because the superior court expressly declined to rely on it in deciding Jane's motion.\\nAt the close of the evidentiary hearing, Graham's counsel reiterated an objection to any consideration of Gabby's preference \\\"on the basis of the child's age\\\"; the judge responded that he had looked at relevant case law, concluded that he had \\\"some leeway\\\" given that Gabby was about ten years old, but that \\\"frankly, that's certainly not going to be the factor the court's going to make a decision on.\\\" In its written findings and conclusions, the court declined to consider the evidence at all: \\\"[Gabby] has apparently a preference for [Jane], but this court does not consider the evidence it has on [Gabby's] preferences nor her capacity to make any decision on this factor adequate to give weight to this factor.\\\"\\nGraham contends on appeal that the superior court \\\"had to have been influenced by the heart-warming testimony of how the child wants to live with her mommy,\\\" but we credit the superior court's express statement about its consideration of this issue. Because the child's preference was given no weight in the superior court's analysis, we need not decide whether it was error to admit the evidence.\\nD. Any Error In The Admission of Evidence Of Graham's Old Criminal Convictions Was Harmless.\\nGraham argues that the superior court erred by admitting evidence that he was criminally convicted in 1996 and 1997 for concealment of merchandise. Graham objected at the hearing on the basis of Alaska Evidence Rule 609(a), contending that the convictions were more than five years old and also irrelevant. The court admitted the evidence preliminarily, citing the Rule 609(b) exception which grants a judge discretion to \\\"allow evidence of the conviction . after more than five years have elapsed if the court is satisfied that admission in evidence is necessary for a fair determination of the case.\\\"\\nAs Graham acknowledges, the superior court had already been informed of the convictions in the custody investigator's report. And the evidence was cumulative, given the evidence of similar and more recent charges that Graham does not challenge on appeal. The superior court did not mention the convictions or the more recent criminal charges in its written findings and conclusions, and there is no indication that they influenced the court's decision. With no reason to believe that Graham was unfairly prejudiced by admission of the evidence of his criminal convie-tions, we conclude that any error in its admission was harmless.\\nv. CONCLUSION\\nWe AFFIRM the order of the superior court modifying custody.\\n. We use pseudonyms to protect the parties' privacy.\\n. Graham's wife testified that at every visitation time, \\\"I callled] them [at the Family Resource Center] to notify them that we can't make it because [there was] still a problem with [Graham].\\\" It is unclear whether the superior court accepted this testimony. In any event, Graham's wife did not testify that she ever explained where they were or provided any contact information; she testified that when she left her messages, she was never asked for a phone number.\\n. See AS 25.24.150(c).\\n. Angleton v. Cox, 238 P.3d 610, 614 (Alaska 2010) (citing Maness v. Daily, 184 P.3d 1, 5 (Alaska 2008)); Alaska Wildlife Alliance v. State, 74 P.3d 201, 205 (Alaska 2003).\\n. Ronny M. v. Nanette H., 303 P.3d 392, 399 (Alaska 2013) (citing Hamilton v. Hamilton, 42 P.3d 1107, 1111 (Alaska 2002)).\\n. Id. (quoting Fardig v. Fardig, 56 P.3d 9, 11 (Alaska 2002)) (internal quotation marks omitted).\\n. Id. (quoting Siekawitch v. Siekawitch, 956 P.2d 447, 449 (Alaska 1998)) (internal quotation marks omitted).\\n. Samaniego v. City of Kodiak, 80 P.3d 216, 218 (Alaska 2003) (citing Buster v. Gale, 866 P.2d 837, 841 n. 9 (Alaska 1994)).\\n. Lum v. Koles, 314 P.3d 546, 552 (Alaska 2013).\\n. Kent V. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 233 P.3d 597, 600 (Alaska 2010) (alteration in the original) (quoting Plumber v. Univ. of Alaska Anchorage, 936 P.2d 163, 166 (Alaska 1997)) (internal quotation marks omitted).\\n. 262 P.3d 622, 625 (Alaska 2011).\\n. Id. at 626; see Frackman v. Enzor, 327 P.3d 878, 882 (Alaska 2014) (citations omitted) (holding that a parent moving for modification of a custody order bears the burden of proving a substantial change in circumstances).\\n. McAlpine, 262 P.3d at 626 (quoting Bunn v. House, 934 P.2d 753, 758 n. 12 (Alaska 1997)).\\n. 957 P.2d 326 (Alaska 1998).\\n. Id. at 327-28.\\n. Id. at 329.\\n. Id. at 328-29 (citing AS 25.24.150(c)).\\n. Id. at 329.\\n. Id.\\n. Id.\\n. Id. at 329-30.\\n. McAlpine v. Pacarro, 262 P.3d 622, 627 (Alaska 2011)\\n. Campion v. State, Dep't of Cmty. & Reg'l Affairs, Hous. Assistance Div., 876 P.2d 1096, 1098 (Alaska 1994) (alteration in the original) (quoting Americana Fabrics v. L & L Textiles, 754 F.2d 1524, 1529 (9th Cir.1985)) (internal quotation marks omitted).\\n. See Morris v. Horn, 219 P.3d 198, 201, 203, 209-10 (Alaska 2009) (holding that a stipulated protective order does not preclude later litigation of a parent's history of domestic violence).\\n. AS 25.20.110(a).\\n. Under AS 25.20.110(c), \\\"a finding that a crime involving domestic violence has occurred since the last custody or visitation determination is a finding of change of circumstances....\\\" Jaymot v. Skillings-Donat, 216 P.3d 534, 543 (Alaska 2009) (citing AS 18.66.990(3)(A); AS 11.41.320-.330).\\n. Terry S. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 168 P.3d 489, 493 (Alaska 2007) (quoting Van Sickle v. McGraw, 134 P.3d 338, 341 r. 10 (Alaska 2006)) (internal quotation marks omitted).\\n. Kelly v. Joseph, 46 P.3d 1014, 1017 (Alaska 2002) (alterations omitted) (quoting Hermosillo v. Hermosillo, 797 P.2d 1206, 1209 (Alaska 1990)) (internal quotation marks omitted); see also VinZant v. Elam, 977 P.2d 84, 87 (Alaska 1999) (concluding that a custodial parent's interference with a non-custodial parent's \\\"visitation rights is sufficient to establish the threshold burden of changed circumstances\\\").\\n. Kelly, 46 P.3d at 1017 (quoting Pinneo v. Pinneo, \\u00a735 P.2d 1233, 1238 (Alaska 1992)).\\n. Hermosillo, 797 P.2d at 1209. In Hermosillo, the custodial parent unilaterally imposed conditions on the custody order \\\"which substantially interfere[d] with the noncustodial parent's visita tion rights.\\\" Id. Without court approval, the custodian had required the visiting parent to provide three weeks' notice and created further logistical difficulties involving the location of exchange and the choice of visitation supervisor. Id. at 1208. We concluded that this obstruction could constitute a change in circumstances and remanded for potential modification of the visitation order. Id. at 1209.\\n. 46 P.3d at 1016.\\n. Id. at 1017-18.\\n. Id. at 1018-19.\\n. Graham appears to contend that he had a right to retain Gabby in his custody so long as he compensated Jane with more visitation days later. But Graham had no right to unilaterally adjust the provisions of the order. See Hermosillo, 797 P.2d at 1209. Any deviations from the order-whether or not they were made up for later-interfered with Jane's visitation rights and support the finding of a change in circumstances.\\n. AS 25.20.110(g); Kelly, 46 P.3d at 1018.\\n. Kelly, 46 P.3d at 1019.\\n. See Alaska R. Evid. 801.\\n. Under AS 25.24.150(c)(3), the court was required to consider \\\"the child's preference if the child is of sufficient age and capacity to form a preference.\\\"\\n. See Brandner v. Hudson, 171 P.3d 83, 87 (Alaska 2007) (\\\"[Elven where the trial court errs in admitting evidence, we will reverse only if that error was not harmless.\\\" (citing Alderman v. Iditarod Props., Inc., 104 P.3d 136, 142 (Alaska 2004))).\"}"
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+"{\"id\": \"6919908\", \"name\": \"Ray T. BRIGGS, Appellant, v. CITY OF PALMER, Alaska, a municipal corporation, Appellee\", \"name_abbreviation\": \"Briggs v. City of Palmer\", \"decision_date\": \"2014-09-12\", \"docket_number\": \"No. S-14969\", \"first_page\": \"746\", \"last_page\": \"749\", \"citations\": \"333 P.3d 746\", \"volume\": \"333\", \"reporter\": \"Pacific Reporter 3d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-11T01:10:25.211979+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before: FABE, Chief Justice, WINFREE, STOWERS, and BOLGER, Justices.\", \"parties\": \"Ray T. BRIGGS, Appellant, v. CITY OF PALMER, Alaska, a municipal corporation, Appellee.\", \"head_matter\": \"Ray T. BRIGGS, Appellant, v. CITY OF PALMER, Alaska, a municipal corporation, Appellee.\\nNo. S-14969.\\nSupreme Court of Alaska.\\nSept. 12, 2014.\\nRay T. Briggs, pro se, Palmer, Appellant.\\nMichael R. Gatti and Mary B. Pinkel, Wohlforth, Brecht, Cartledge, & Brooking, Anchorage, for Appellee.\\nBefore: FABE, Chief Justice, WINFREE, STOWERS, and BOLGER, Justices.\", \"word_count\": \"1817\", \"char_count\": \"11168\", \"text\": \"BOLGER, Justice.\\nI. INTRODUCTION\\nThe owner of two lots and a residence near the Palmer Municipal Airport brought an inverse condemnation claim against the City of Palmer, arguing that the airport operation diminished his property value. The superior court entered summary judgment for the City of Palmer because the property owner failed to submit any expert testimony regarding damages We reverse the superior court's decision because Alaska law permits property owners to testify about their opinion of the property's value before and after an alleged taking.\\nII. FACTS AND PROCEEDINGS\\nRay Briggs purchased two parcels of land from the Small Business Administration in 1989. Those parcels share a boundary with the Palmer Airport. In 1997 Briggs complained to the Matanuska-Susitna Borough, alleging that Palmer had committed an unconstitutional taking of his property. Palmer subsequently annexed Briggs's property into its corporate boundaries. In 2006 Briggs asked Palmer to buy his property, again alleging that Palmer had committed a taking.\\nIn June 2007 Briggs filed a superior court complaint claiming inverse condemnation. He alleged that the noise from the Palmer Airport substantially interfered with the use and enjoyment of his property to such a degree that it rendered his property uninhabitable and entitled him to just compensation. Briggs alleged that the noise and pollution created by planes landing or taking off from the Palmer Airport substantially diminished his property value.\\nPalmer filed pretrial motions to exclude various types of evidence. In response to these motions, Briggs's attorney stated that he would not be calling any expert witnesses to testify to the value of Briggs's property. He asserted that Alaska law allows property owners to testify as to their opinion of the value of their property.\\nIn December 2011 the superior court heard oral argument on the pending motions. The court accepted Briggs's late-filed witness list, which consisted of Briggs and his partner, Gilbert Shea. The court granted Palmer's motion to exclude evidence of the Borough's property tax assessment for Brigg's property. In making this decision, the court expressed concern that Briggs might not be able to meet his \\\"burden of proof\\\" because Briggs and Shea lacked expertise in property valuation.\\nPalmer filed a motion for summary judgment in March 2012, arguing Briggs had no admissible evidence to prove his damages. Briggs's attorney did not oppose Palmer's motion. The superior court granted Palmer's motion, stating that \\\"[blecause proof of damages is an essential element of plaintiff's inverse condemnation case, the court's ruling results in dismissal of plaintiff's case in its entirety.\\\"\\nBriggs filed motions seeking to proceed pro se and requesting oral argument; the superior court denied his motions and a final judgment in favor of Palmer was distributed on June 15, 2012. Briggs requested reconsideration and again sought to proceed pro se. Briggs's attorney then moved to withdraw, and the court granted that motion. Briggs, now proceeding pro se, moved to set aside the judgment, but on November 7 the court denied his request. Briggs filed this appeal on December 3, over five months after final judgment was distributed and well be-youd the 80 days allowed under the Appellate Rules. We accepted the late filing and now consider Briggs's appeal.\\nIII. STANDARD OF REVIEW\\n\\\"We review a grant of summary judgment de novo, affirming the summary judgment when there is no genuine issue of material fact and the prevailing party is entitled to judgment as a matter of law.\\\"\\n\\\"When the admissibility of evidence turns on a question of fact, we review a trial court's decision on admissibility for an abuse of discretion. However, when admissibility turns on a question of law, we use our independent judgment in reviewing the trial court's ruling.\\\"\\n\\\"[Wle consider pro se pleadings liberally in an effort to determine what legal claims have been raised.\\\"\\nIV. DISCUSSION\\nA. Briggs's Late Appeal Of The Superi- or Court's Judgment May Be Accepted Because He Had An Obvious Misunderstanding Of Court Procedure.\\nAlaska Appellate Rule 204(a)(1) provides that the appealing party must file a notice of appeal within 30 days of the distribution of the judgment. But the time limit for filing a notice of appeal is not jurisdictional, and the \\\"requirements of that rule may be relaxed or dispensed with where a strict application would be unfair.\\\" Alaska Appellate Rule 502(b)(@2) specifically gives us discretion \\\"to validate an act done after the expiration of the time period\\\" upon \\\"a showing of good cause for an out-of-time application for extension of time.\\\" And we may relax procedural requirements for pro se litigants in situations that do not involve gross neglect or bad faith.\\nIn the present case, the superior court entered summary judgment on the issue of damages on March 26, 2012. The court distributed its final judgment on June 15. Both before and after that date, Briggs filed several motions to proceed pro se, claiming that he was not being adequately represented by his attorney. On July 11 and August 22, Briggs also filed requests for reconsideration. After the superior court denied the motions for reconsideration, Briggs filed a motion to set aside the judgment, claiming that his counsel had not represented him adequately. The superior court's order denying this motion was distributed on November 7. Briggs filed a notice of appeal on December 8, 2012.\\nPalmer argues that this procedural history shows that Briggs's appeal was not timely, and that neither Briggs's requests for reconsideration nor his motion to set aside the judgment met the requirements to toll the running of time for filing an appeals. But Briggs is a pro se litigant who seems to have misunderstood court procedure. The record shows Briggs repeatedly asked to represent himself after his attorney neglected to respond to the motion for summary judgment, and he also repeatedly sought relief from the superior court's order granting summary judgment. Based on this showing, we are satisfied there is good cause to accept this appeal.\\nB. Alaska Law Allows Property Owners To Testify About The Diminution In Value Of Their Property.\\nBriggs argues he can provide credible testimony about the diminution in value of his property. In response, Palmer argues the superior court's decision should be affirmed because an inverse condemnation case requires expert testimony to prove the value of damages. Palmer relies on Wernberg v. Matanuska Electric Ass'n, which states: \\\"While the property owner is permitted to testify as to the market value of his land, it is clear that the amount of damage to property in trespass as in eminent domain cases is more appropriately the subject of expert testimony measured by an objective standard of damages.\\\" But in our more recent decisions, we have reemphasized Wernberg's prefatory statement that a \\\"property owner is permitted to testify as to the market value of his land\\\" and have clarified that this rule is based on the premise that an owner is informed about a property's value, both before and after an event that diminished that value.\\nIn Fairbanks North Star Borough v. Lakeview Enterprises, Inc., an inverse condemnation case involving a neighboring landfill, we stated that \\\"[aln ownet's opinion on the topic of property value is normally admissible in Alaska.\\\" Likewise, in Oshorne v. Hurst, a case where a fire set on neighboring property destroyed a eabin, we held that lay testimony offered by the property owners about the value of their property before and after the fire was admissible because of the owners' presumed knowledge about the valie of their property. We reaffirmed this position more recently in Maddox v. Hardy when we stated that \\\"Alaska allows lay testithony from the owner of property as to the value of the property before and after a damaging event.\\nWe conclude it was error to rule that Briggs could not testify about damages based on the value of his property before and after the alleged taking. We thus reverse the superior court's order granting summary judgment that relied on this ruling.\\nV. CONCLUSION\\nWe REVERSE the superior court's order granting summary judgment and REMAND for further proceedings.\\nMAASSEN, Justice, not participating.\\n. Weimer v. Cont'l Car & Truck, LLC, 237 P.3d 610, 613 (Alaska 2010) (citing Alaska R. Civ. P. 56(c); Preblich v. Zorea, 996 P.2d 730, 733 (Alaska 2000)).\\n. Sowinski v. Walker, 198 P.3d 1134, 1159 (Alaska 2008) (citing Turner v. Municipality of Anchorage, 171 P.3d 180, 184 (Alaska 2007); Laidlaw Transit, Inc. v. Crouse ex rel. Crouse, 53 P.3d 1093, 1097 (Alaska 2002)).\\n. Toliver v. Alaska State Comm'n for Human Rights, 279 P.3d 619, 622 (Alaska 2012) (citing Clemensen v. Providence Alaska Med. Ctr., 203 P.3d 1148, 1150 (Alaska 2009)).\\n. Radich v. Fairbanks Builders, Inc., 399 P.2d 215, 217 (Alaska 1965); accord Gilbert v. State Farm Ins. Co., Mem. Op. & J No. 1178, 2004 WL 1701109, at *2 n. 6 (Alaska July 28, 2004) (\\\"Though State Farm is correct that technically this appeal is late under Alaska Appellate Rule 204(a)(1) and Alaska Civil Rule 77(k), given Gilbert's pro se status and the plausible reasons she presents for the delay, we will consider the appeal.\\\").\\n. Alaska R.App. P. 502(b)(2).\\n. Shea v. State, Dep't of Admin., Div. of Ret. & Benefits, 204 P.3d 1023, 1028 (Alaska 2009).\\n. Brandner v. Municipality of Anchorage, 327 P.3d 200, 203 (Alaska 2014).\\n. See Alaska R.App. P. 204(a)(3).\\n. 494 P.2d 790, 795 (Alaska 1972).\\n. 897 P.2d 47, 55 n. 14 (Alaska 1995) (citing Schymanski v. Convents, 674 P.2d 281, 286 (Alaska 1983)).\\n. 947 P.2d 1356, 1361 (Alaska 1997).\\n. 187 P.3d 486, 495 (Alaska 2008).\\n. Nothing in the record before us indicates that Shea is an owner of the property. As such this ruling does not affect the superior court's order regarding his testimoriy.\\n. In view of this disposition, we are not required to address any other issues raised in this appeal. But we note certain issues may arise on remand with respect to the court's award of fees and costs. Palmer concedes that the superior court should not have enhanced the attorney's fee award under Alaska Civil Rule 82. Palmer also concedes that the court should not have awarded expert witness costs under Alaska Civil Rule 79(a) because the expert never testified at trial. And neither the court nor the parties considered whether the court's fee and cost awards could be affected by the statute that governs constitutional claims. See AS 09.60.010(c)(2). Even if the court concluded Briggs had \\\"sufficient economic incentive\\\" to bring the suit, he would still be entitled to abatement of an award that \\\"would inflict a substantial and undue hardship.\\\" See AS 09.60.010(e).\"}"
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+"{\"id\": \"6960200\", \"name\": \"Timothy E. MUND, Appellee. v. STATE of Alaska, Appellant\", \"name_abbreviation\": \"Mund v. State\", \"decision_date\": \"2014-03-21\", \"docket_number\": \"No. A-10800\", \"first_page\": \"535\", \"last_page\": \"549\", \"citations\": \"325 P.3d 535\", \"volume\": \"325\", \"reporter\": \"Pacific Reporter 3d\", \"court\": \"Alaska Court of Appeals\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-11T00:36:10.696122+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before: MANNHEIMER, Chief Judge, ALLARD, Judge, and COATS, Senior Judge .\", \"parties\": \"Timothy E. MUND, Appellee. v. STATE of Alaska, Appellant.\", \"head_matter\": \"Timothy E. MUND, Appellee. v. STATE of Alaska, Appellant.\\nNo. A-10800.\\nCourt of Appeals of Alaska.\\nMarch 21, 2014.\\nJohn N. Page III, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.\\nMary Gilson, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.\\nBefore: MANNHEIMER, Chief Judge, ALLARD, Judge, and COATS, Senior Judge .\\nSitting by assignment made pursuant to Article IV, Section 11 of the Alaska Constitution and Administrative Rule 23(a).\", \"word_count\": \"8344\", \"char_count\": \"52197\", \"text\": \"OPINION\\nJudge MANNHEIMER,\\nwriting for the Court.\\nTimothy E. Mund was convicted of several crimes, the most serious of which was first-degree assault. In our previous opinion in this case, Mund v. State, Alaska App. Memorandum Opinion No. 5914 (February 6, 2013), 2013 WL 466421, we affirmed Mund's convie-tions, but we left one issue undecided: Mund's claim that his composite sentence of 20 years to serve was excessive.\\nBecause of Mund's many prior felony convictions, he was a \\\"third felony offender\\\" for presumptive sentencing purposes, and he therefore faced a presumptive range of 15 to 20 years' imprisonment for his first-degree assault conviction.\\nThe superior court sentenced Mund to serve 18 years for this crime, and the court added a total of 2 more years to serve for Mund's other offenses. Thus, Mund's composite sentence-20 years to serve-falls within the applicable presumptive sentencing range for his most serious offense.\\nOne portion of Alaska's sentence appeal statute, AS 12.55.120(a), declares that felony defendants who receive more than 2 years to serve have the right to appeal their sentence, unless that term of imprisonment was an agreed-upon provision of a plea bargain. But in 2005, the Legislature enacted another subsection, AS 12.55.120(e), which limits this right of appeal. Subsection (e) declares that \\\"[if al sentence [is] within an applicable presumptive rangel, the sentence] may not be appealed to the court of appeals . on the ground that the sentence is excessive.\\\"\\nThe enactment of this new subsection (e) also affected this Court's jurisdiction to hear felony sentence appeals, because the pertinent portion of our jurisdictional statute-AS 22.07.020(b)-contains a cross-reference to the provisions of AS 12.55.120. Our jurisdictional statute declares that we have the authority to review felony sentences exceeding two years to serve \\\"except as limited in AS 12.55.120\\\". Because of this cross-reference, we lack jurisdiction to hear the appeal of any sentence if that appeal is not authorized by the provisions of AS 12.55.120.\\nThus, because of the enactment of AS 12.55.120(e), Mund apparently has no right to appeal his sentence, and this Court apparently has no jurisdiction to review his sentence. But this new restriction on the right of sentence appeal, and this new restriction on our jurisdiction to hear sentence appeals, conflict with the provisions of Alaska Appellate Rule 215(a) enacted by the Alaska Supreme Court.\\nSubsection (a)(1) of Appellate Rule 215 tracks the language of AS 12.55.120(a). Rule 215(a)(1) declares that felony defendants have the right to appeal any sentence longer than 2 years to serve (unless the defendant's term of imprisonment was an agreed-upon provision of a plea bargain). This right of appeal applies even when a defendant's sentence is within the applicable presumptive range. And subsection (a)d) of Rule 215 declares that these sentence appeals \\\"must be taken to the court of appeals\\\".\\nBecause of this conflict between the statutes and the court rule, we asked the parties to brief the questions of (1) Mund's right to appeal his sentence, and (2) this Court's authority to review Mund's sentence for exces-siveness. Here, in a nutshell, are our conclusions:\\nAS 12.55.120(e) ostensibly changed Alaska law in three ways. First, the statute eliminated the right of sentence appeal for defendants who receive sentences within the applicable presumptive range. Second, the statute apparently eliminated this Court's jurisdiction to hear such appeals-because our sentence appeal jurisdiction statute, AS 22.07.020(b), defines our jurisdiction according to which defendants have a right of appeal under AS 12.55.120. And third, AS 12.55.120(e) expressly recognized the right of these defendants to seek discretionary review of their sentences by filing a petition either in the supreme court or in this Court. (The Legislature left this choice up to the supreme court.)\\nThe Legislature has sole authority to define this Court's jurisdiction. Thus, to the extent Appellate Rule 215(a) purports to give this Court jurisdiction over sentence appeals when the Legislature has taken that authority away, the court rule has no legal effect. The Alaska Supreme Court can not grant this Court additional jurisdiction by court rule.\\nBut on the question of which defendants have a right to appeal their sentence, Appellate Rule 215(a) takes precedence over any conflicting statute. Thus, in order for the Legislature to eliminate the right of sentence appeal for defendants whose sentence is within the applicable presumptive range, the Legislature had to exercise its authority under Article IV, Section 15 of the Alaska Constitution to amend Appellate Rule 215(a) to incorporate this new restriction on the right of sentence appeal. The Legislature neglected to do that, so the broader right of sentence appeal codified in Appellate Rule 215(a) continues to govern. Felony defendants who receive a sentence within the applicable presumptive range continue to have the right to appeal their sentence, as long as their sentence exceeds two years to serve and their sentence was not an agreed-upon provision of a plea bargain.\\nThis leaves us in a quandary: Given the fact that the Legislature failed to achieve its goal of eliminating these defendants' right of sentence appeal, would the Legislature still wish to deprive this Court of jurisdiction to hear these sentence appeals-a result which would send these appeals to the supreme court?\\n(See AS 22.05.010(b), which declares that when litigants have a right of appeal, that appeal is \\\"to the supreme court [as] a matter of right . in [all] actions and proceedings from which there is no right of appeal to the court of appeals under AS 22.07.020[.]\\\")\\nWe have examined the legislative history of AS 12.55.120(e), and we conclude that the Legislature would not wish to limit this Court's sentence appeal jurisdiction unless, at the same time, the restriction on the right of sentence appeal codified in AS 12.55.120(e) also took effect-i.e., unless defendants who received sentences within the applicable presumptive range were deprived of the right to appeal their sentences.\\nWe therefore conclude that no provision of AS 12.55.120(e) should be given effect. Because the Legislature failed to amend Appellate Rule 215, defendants ostensibly covered by AS 12.55.120(e) retain their pre-existing right to appeal their sentences, and this Court retains its jurisdiction to hear those appeals.\\nWe will now explain our analysis in much greater detail. Readers who are already convinced that we have correctly described Alaska law, and that we have accurately discerned the intent of AS 12.55.120(e), may proceed directly to the final section of this opinion, where we analyze whether Mund's composite sentence of 20 years' imprisonment is excessive.\\nThe legal background of this controversy, part 1: principles of sentence review under Alaska law\\nIn 1968, in Bear v. State, the Alaska Supreme Court held that it did not have the authority to review a lawfully imposed sentence to determine whether it was excessive or overly lenients. In response, the Alaska Legislature took action the following year to authorize sentence appeals. See SLA 1969, ch. 117, \\u00a7 1 and 4.\\nIn section 1 of this 1969 session law, the Legislature amended the supreme court's jurisdictional statute by adding a provision that expressly authorized the court to review criminal sentences. See AS 22.05.010(b) (1969 version). And in section 4 of the session law, the Legislature enacted the original version of AS 12.55.120-a statute giving certain criminal defendants the right to appeal their sentence.\\nAs originally enacted, AS 12.55.120(a) declared that a defendant could appeal any sentence that exceeded one year's imprisonment. But seven years later, in 1976, the supreme court enacted a court rule, Appellate Rule 21(a), which defined the right of sentence appeal in a manner inconsistent with the statute. Appellate Rule 21(a) de- - clared that defendants had the right to appeal any sentence of 45 days or more.\\nIn Wharton v. State, 590 P.2d 427 (Alaska 1979), the supreme court held that the appellate rule took precedence over the sentence appeal statute. The court gave two discrete reasons for its decision.\\nFirst, the court asserted that the Bear decision was wrong-that the supreme court, in fact, possessed the inherent power to review criminal sentences, because Article IV, Section 2 of the Alaska Constitution declares that the supreme court has \\\"final appellate Jurisdiction\\\" in all judicial proceedings. Id. at 428-29.\\nSecond, the supreme court reasoned that, once the Legislature granted defendants a right of sentence appeal (albeit a limited right), the court had the authority to \\\"expand[ ] that right\\\" by court rule. Id. at 429.\\nIn Coffman v. State, 172 P.3d 804 (Alaska App.2007), this Court was required to revisit and interpret the supreme court's decision in Wharton. We concluded that Wharton stood for two fundamental propositions.\\nFirst, we declared that the Wharton decision \\\"rests on the concept . that, even in the absence of authorizing legislation, the supreme court has the power to review any judicial decision made in a criminal case-including the sentencing judge's exercise of sentencing discretion\\\":\\n[EJven though the Alaska statutes governing sentence appeals were originally thought to confer a special right of appeal (and to expand the supreme court's jurisdiction accordingly), a defendant's substantive right to seek appellate review of a sentence for alleged excessiveness, and the supreme court's authority to hear that claim, actually exist irrespective of these statutes.\\nCoffman, 172 P.3d at 809 (emphasis in the original).\\nSecond, we declared that, because the supreme court has the inherent power to review criminal sentences, even in the absence of legislation, Alaska's sentence appeal statutes \\\"are in fact addressed solely to matters of procedure-or, in the case of the [jurisdictional] provisions found in AS 22.07, the issue of the division of appellate jurisdiction between this Court and the supreme court.\\\" Id. at 809. We explained:\\n[Tlhe truth of the matter is that every defendant in Alaska has the right to seek appellate review of their sentence on the ground that it is excessive. The effect of our sentence appeal statutes is not to confer or withhold this right, but rather to define the manner in which the appellate review is invoked and conducted.\\nTbid. (emphasis in the original).\\nBy \\\"the manner in which appellate review is invoked and conducted\\\", we were referring to the two main components of sentence review law.\\nThe first of these components is jurisdictional: identifying the appellate court that is authorized to review the sentence.\\nIn Wharton, the supreme court declared that it had the inherent authority to review criminal sentences, stemming from its constitutional role as the final appellate tribunal under Article IV, Section 2. But this Court has no such inherent power: our existence does not derive from the Alaska Constitution, but rather from an act of the Legislature.\\nBecause we are a creature of statute, our jurisdiction is defined by statute-in particular, the provisions of AS 22.07.020. The Legislature has the power to restrict this Court's authority to review sentences, either by limiting our review to specific types of cases or sentences, or by excluding specific types of cases or sentences from our review.\\nThe second component of sentence review law is procedural: the rules that specify whether a particular class or group of defendants has the right to \\\"appeal\\\" their sentence or, instead, only the right to \\\"petition\\\" an appellate court to review their sentence.\\nThe right of \\\"appeal\\\" means the right to require an appellate court to review the sentencing court's decision. The right of \\\"petition\\\", on the other hand, means the right to request an appellate court to review the sentencing decision-a request which the appellate court may grant or deny as it sees fit. See Rozkydal v. State, 938 P.2d 1091, 1094 (Alaska App.1997).\\nAs we explained in Coffman, the Alaska Supreme Court's decision in Wharton implicitly stands for the proposition that, once a right of sentence appeal has been created, the Legislature's enactments regarding the right of sentence appeal are all procedural. Coffman, 172 P.3d at 809. And because the sentence appeal statutes are procedural, the provisions of these statutes are superseded by any corresponding and conflicting provisions of the court rules-unless and until the Legislature exercises its constitutional authority under Article IV, Section 15 to amend the conflicting court rules.\\n(Article IV, Section 15 declares that, to amend a court rule, the Legislature must pass the amendment by a two-thirds vote of the members elected to each house. In addition, the Legislature must adhere to the procedure specified in Leege v. Martin, 379 P.2d 447, 451 (Alaska 1963). Most notably, the Legislature must expressly state its intention to amend the court rule.)\\nThe legal background of this controversy, part 2: the Alaska Legislature's revisions of the right of appeal in 1993 and 1995\\nIn 1998, the Legislature amended this Court's jurisdictional statute by deleting certain limitations on the government's right of appeal in criminal cases. See SLA 1998, ch. 71, \\u00a7 2. But at that time, Appellate Rule 202(c) still contained the old limitations on the government's right of appeal. To resolve this conflict, the Legislature exercised its authority under Article IV, Section 15 of the Alaska Constitution to repeal Appellate Rule 202(c). See SLA 1998, ch. 71, \\u00a7 6.\\nIn 1995, the Legislature took action to limit felony defendants' right of sentence appeal. The Legislature amended AS 12.55.120(a) to specify that a felony sentence could not be appealed unless (1) the sentence exceeded 2 years to serve and (2) it was not a negotiated provision of a plea bargain. See SLA 1995, ch. 79, \\u00a7 7.\\nAt the same time, the Legislature made a conforming amendment to this Court's jurisdictional statute, AS 22.07.020(b), so that this Court no longer had jurisdiction to review a sentence unless it met the new criteria of AS 12,55.120(a). See SLA 1995, ch. 79, \\u00a7 11-12.\\nAs part of this same session law (SLA 1995, ch. 79, \\u00a7 11), the Legislature made one other notable change to this Court's jurisdictional statute-a change that will be important to our discussion later in this opinion. The Legislature inserted the words, \\\"Except as limited in AS 12.55.120\\\", at the beginning of AS 22.07.020(b):\\n(b) Except as limited in AS 12.55.120, the court of appeals has jurisdiction to hear appeals of unsuspended sentences of imprisonment exceeding two years for a felony offense....\\nTechnically speaking, nothing in AS 12.55.120 \\\"limits\\\" the jurisdiction of this Court. AS 12.55.120 does not speak to the jurisdiction of this Court; rather, the statute defines the right of sentence appeal. However, the obvious purpose of the new language was to eliminate the need for the Legislature to keep making conforming amendments to this Court's jurisdictional statute every time the Legislature altered the right of sentence appeal defined in AS 12.55.120. Thus, after 1995, any change in a defendant's right of sentence appeal under AS 12.55.120 will work a corresponding change in this Court's sentence review jurisdiction.\\nThe Legislature's 1995 amendments of AS 12.55.120 and AS 22.07.020 onee again created a conflict with the existing appellate rules. The rule governing sentence appeals, Appellate Rule 215(a), codified the old provision discussed in Wharton-the provision giving a right of sentence appeal to all defendants who received 45 days or more to serve. So onee again, to resolve this conflict, the Legislature exercised its constitutional power to repeal (and re-write) Appellate Rule 215(a) to make it conform to the new limitations codified in AS 12.55.120(a). See SLA 1995, ch. 79, \\u00a7 20.\\nA few months later, the supreme court promulgated a revised version of Appellate Rule 215(a) which differed somewhat from the structure and wording chosen by the Legislature, but which incorporated all of the Legislature's substantive changes.\\nIn particular, the supreme court did not attempt to alter the Legislature's new restrictions on the right of sentence appeal; it incorporated those restrictions in Appellate Rule 215(a)(1). But in addition, the supreme court wrote two new rules-Appellate Rule 215(a)(2) [now renumbered as 215(a)(5) ] and Appellate Rule 403(h4)-to govern a new form of appellate litigation: the petition for sentence review, which was available to all defendants whose sentence was not appealable under the provisions of AS 12.55.120 and the new version of Appellate Rule 215(a)(1).\\nThis new petition for sentence review is premised on one of the principles of the Wharton decision: the principle that the supreme court has the constitutional authority to review any judicial decision, including sentencing decisions. The Legislature might take away a defendant's right of sentence appeal (i.e., the procedural right to demand appellate review of their sentence), and the Legislature might take away this Court's jurisdiction to review the defendant's sentence, but the supreme court retains the discretionary authority to review the sentence.\\nCompare State v. Browder, 486 P.2d 925, 929-931 (Alaska 1971), where the supreme court held that even when a statute restrict, ed the government's right of appeal in criminal cases, the government was nevertheless entitled to petition the supreme court to review any trial court decision in a criminal case.\\nIndeed, when the Legislature re-defined the right of appeal in criminal cases in 1993 and 1995, one salient aspect of the Legislature's actions is that, in both instances, the Legislature implicitly acknowledged the principle behind the supreme court's decision in Wharton.\\nAs we have explained, Wharton stands for the proposition that, onee a right of appeal is enacted, the provisions governing that right of appeal-for instance, the rules specifying how long a defendant's sentence must be to trigger the right of appeal-are procedural. And because these provisions of law are procedural, when there is a conflict between a court rule and a statute, the court rule will prevail-unless the Legislature has exercised its constitutional authority to repeal, amend, or re-write the court rule that contained the contrary provision.\\nThat is precisely what the Legislature did in 1998 and 1995: they eliminated the conflicting appellate rule-in one instance by simply repealing the rule, and in the other instance by re-writing it.\\nHowever, as we explain in the next section of this opinion, the Legislature failed to make a conforming amendment to Appellate Rule 215(a2) when, in 2005, they amended AS 12.55.120 by adding subsection (e), a subsection that contains new restrictions on the right of sentence appeal. This means that Appellate Rule 215(a) is in conflict with the current version of AS 12.55.120-and this conflict is the source of the present legal controversy.\\nThe Alaska Legislature's enactment of AS 12.55.120(e) in 2005-and the creation of the conflict between the sentence appeal statute, AS 12.55.120, this Court's jurisdictional statute, AS 22.07.020, and the court rule governing sentence appeals, Appellate Rule 215(a)\\nWe turn now to the legislative session of 2005, when the Legislature amended AS 12.55.120 to add a new restriction on the right of sentence appeal. This time, the Legislature did not amend subsection (a) of the statute; instead, the Legislature added a new subsection (e). See SLA 2005, ch. 2, \\u00a7 7.\\nThe first sentence of subsection (e) declares that a defendant has no right to appeal a sentence that lies within the applicable presumptive range for the offense:\\nA sentence within an applicable presumptive range set out in AS 12.55.125[,] or a consecutive or partially consecutive sentence imposed in accordance with the minimum sentences set out in AS 12.55.127 [a statute that requires consecutive sentencing under certain circumstances] may not be appealed to the court of appeals under this section or AS 22.07.020 /i.e., the statute defining this Court's jurisdiction] on the ground that the sentence is excessive.\\nAlthough this portion of the statute declares that such sentences may not be appealed \\\"to the court of appeals\\\", the legislative history of the statute demonstrates that the legislature intended to completely eliminate the right of sentence appeal for these defendants, including appeals to the supreme court.\\nAs initially proposed, subsection (e) comprised a single sentence, and it would have completely eliminated judicial authority to reverse a sentence within the applicable presumptive range, either by appeal or by petition:\\n(e) A sentence reviewed by the [court of appeals] under [AS 12.55.120] and AS 22.07.020, . or a sentence reviewed by petition [to the supreme court] under court rules, may not be reversed as excessive . if the sentence is within an applicable presumptive range set out in AS 12.55.125, or is a consecutive or partially consecutive sentence imposed in accordance with the minimum sentences set out in AS 12.55.127.\\nSenate Bill 56 (24th Legislature) (original version of January 14, 2005).\\nAn undated sectional analysis of this proposed statute, distributed to the Senate Judi-clary Committee, described the statute as \\\"mak[ing] it clear that the [appellate] courts in Alaska cannot reverse a sentence as excessive if a judge imposes [the] sentence within [the applicable} statutory [presumptive] range\\\".\\nBut some legislators expressed concern that an absolute prohibition on appellate review of sentences would be unconstitutional. This view was endorsed by a legislative research report and by a memorandum written by the Public Defender Agency to the House Judiciary Committee -each suggesting that an absolute prohibition on sentence review would run afoul of this Court's decision in Rozkydal v. State.\\n(In Roskydal, this Court held that the restrictions on sentence appeals codified in AS 12.55.120(a) did not limit a defendant's right to petition the supreme court for discretionary review of their sentence. )\\nBased on these concerns, Representative Les Gara proposed an amendment that would allow defendants who received sentences within the applicable presumptive range to file petitions for sentence review in the supreme court. Specifically, this proposed amendment stated that a sentence within the presumptive range \\\"may be reviewed by the supreme court on the grounds that it is excessive through a petition filed under rules adopted by the supreme court.\\\"\\n(As we have already explained, the supreme court had already promulgated court rules in 1996-Appellate Rule 215(a)(5) and Appellate Rule 408(h)-which provide that if a defendant receives a sentence that is not appealable under Appellate Rule 215(a)(1), the defendant can petition the supreme court to review the sentence.)\\nThe House Finance Committee proposed yet another version of subsection (e)-a version that was ultimately enacted. In this new version, the language about allowing defendants to file sentence review petitions in \\\"the supreme court\\\" was changed to language that allowed these petitions to be filed in \\\"an appellate court\\\"-with the supreme court having the authority to select the appropriate appellate court through court rule.\\nThe purpose of this change was to allow sentence review petitions to be heard by this Court. The only person to testify about this proposed change was an administrative attorney for the Alaska Court System, who told the Committee that he favored the proposed amendment because it would allow this Court (rather than the supreme court) to conduct the discretionary sentence review, since this Court had more expertise in criminal matters. After hearing the administrative attorney's comments, the House Finance Committee approved the amendment. And, in this form, the proposed statute was enacted as SLA 2005, ch. 2, \\u00a7 7.\\nHere is the final (and current) wording of AS 12.55.120(e):\\n(e) A sentence within an applicable presumptive range set out in AS 12.55.125 or a consecutive or partially consecutive sentence imposed in accordance with the minimum sentences set out in AS 12.55.127 may not be appealed to the court of appeals under this section or AS 22.07.020 on the ground that the sentence is excessive. However, the sentence may be reviewed by an appellate court on the ground that it is excessive through a petition filed under rules adopted by the supreme court.\\nThis session law was passed by the Senate in an 18-0 vote, and by the House in a 36-0 vote. However, the session law did not conform to the rule announced in Leege v. Martin because it did not contain any language specifying the Legislature's intent to amend Appellate Rule 215(a).\\nBecause SLA 2005, ch. 2 did not expressly declare the Legislature's intention to amend Appellate Rule 215(a), that court rule remained unchanged. And, as we have explained, Appellate Rule 215(a) was written in 1995 to codify the restrictions on the right of sentence appeal contained in AS 12.55.120(a ), not the new restrictions contained in subsection (e). To this day, Appellate Rule 215(a) continues to reflect the pre-2005 sentence appeal law.\\nThus, under Appellate Rule 215(a)(1), if a felony defendant receives a sentence of more than 2 years to serve, and if this sentence was not an agreed-upon provision of a plea bargain, the defendant is entitled to appeal the sentence-regardless of whether the sentence lies within the applicable presumptive range.\\nAppellate Rule 215(a)(4) declares that these sentence appeals must be taken to this Court-but this provision of the rule now contravenes the provisions of this Court's jurisdictional statute.\\nAs we explained in the opening section of this opinion, AS 22.07.020(b) states that this Court's jurisdiction to hear sentence appeals is limited to those appeals authorized by AS 12.55.120. Because AS 12.55.120(e) declares that felony defendants have no right to appeal their sentence if the sentence falls within the applicable presumptive sentencing range, the enactment of AS 12.55.120(e) effectively stripped this Court of its authority to hear the sentence appeals of defendants covered by this statute.\\nIt is now our task to resolve these conflicts if we can.\\nThe two aspects of AS 12.55.120(e)-one procedural, the other jurisdictional\\nThe legislature's enactment of AS 12.55.120(e) ostensibly changed Alaska's law of sentence review in three major respects:\\n(1) The first sentence of the statute contains a new restriction on felony defendants' right of sentence appeal. Under this new restriction, even if a felony sentence would be appealable under the provisions of AS 12.55.120(q) (e, even if the sentence exceeds 2 years to serve), the sentence can not be appealed if it is within the applicable presumptive range.\\n(2) This Court's jurisdictional statute, AS 22.07.020(b), declares that this Court's sentence review jurisdiction is linked to the right of sentence appeal codified in AS 12.55.120. Thus, the Legislature's enactment of the new restriction on the right of sentence appeal in AS 12.55.120(e) concomitantly deprived this Court of the authority to hear any such sentence appeals.\\n(3) The second sentence of subsection (e) declares that, in cases where the new restriction codified in subsection (e) bars the appeal of a sentence, the supreme court is nevertheless authorized to enact court rules to allow these defendants to petition for sentence review-either to the supreme court itself or to this Court, depending on the supreme court's preference.\\n(a) The first change: the new restriction on the right of appeal\\nWith regard to the new restriction on the right of sentence appeal, this change in the law is \\\"procedural\\\" for purposes of the supreme court's decision in Wharton and this Court's decision in Coffman. This means that the statutory restriction must yield to a contrary court rule.\\nAs we explained earlier, one of the major issues confronting the supreme court in Wharton was whether to enforce the restriction on sentence appeals codified in AS 12.55.120 (sentences exceeding 1 year) or, instead, to enforce the competing restriction contained in the corresponding appellate rule (sentences of 45 days or more). Wharton, 590 P.2d at 428-29. The supreme court treated this distinction as a procedural one. The court declared that, onee the Legislature granted defendants a right of sentence appeal, the supreme court had the authority to \\\"expand[ ] that right\\\" by court rule. Id. at 429.\\nThis does not mean that the supreme court necessarily has the last word. Under Article IV, Section 15 of the Alaska Constitution, the Legislature has the power to change court rules by a two-thirds vote of the members elected to each house.\\nHowever, under Leege v. Martin, 379 P.2d 447, 451 (Alaska 1963), when the Legislature wishes to change a court rule, the Legislature must draft its bill so that it contains a provision expressly declaring this purpose. In the absence of such a statement of purpose, the resulting session law has no effect on the conflicting procedural provisions of the court rules. Ibid.\\nHere, when the Legislature enacted AS 12.55.120(e) to restrict the right of sentence appeal, the Legislature failed to specify its intention to amend Appellate Rule 215(a)(1), the corresponding court rule that defined the right of sentence appeal.\\nConcededly, it is obvious that the Legislature wished to restrict the right of sentence appeal in a manner that is inconsistent with the provisions of Appellate Rule 215(a)(1). But as a legal matter, the clearness or obviousness of the Legislature's wishes makes no difference. In Nolan v. Sea Airmotive, Inc., 627 P.2d 1035, 1046 (Alaska 1981), the Alaska Supreme Court squarely rejected the argument that, whenever the Legislature's intended result is clear, any conflicting court rules must be harmonized with the Legislature's wishes even though the Legislature failed to comply with Leege v. Martin.\\n(b) The second and third changes: the amendments to this Court's sentence review jurisdiction\\nBecause the first sentence of AS 12.55.120(e) restricts the right of sentence appeal, it also restricts this Court's authority to engage in sentence review.\\nAs we explained earlier, the portion of this Court's jurisdictional statute that defines our authority to review sentencing decisions of the superior court, AS 22.07.020(b), now begins with the phrase \\\"Except as limited in AS 12.55.120\\\"-thus linking the seope of our sentence review jurisdiction to the scope of sentence appeals allowed by AS 12.55.120. Because of this statutory clause, every new limitation on the right of sentence appeal codified in AS 12.55.120 also works a corresponding limitation on this Court's jurisdiction to hear sentence appeals.\\nAt the same time, the second sentence of AS 12.55.120(e) gives the supreme court the power to expand this Court's sentence review jurisdiction-by enacting court rules to authorize this Court to hear petitions for sentence review in cases where the right of appeal is barred by AS 12.55.120(e).\\nThis second sentence of AS 12.55.120(e) introduced something new to the judicial review of sentences in Alaska. Before the enactment of AS 12.55.120(e), there had always been a strict correlation between the definition of the right of sentence appeal and the definition of this Court's jurisdiction to conduct sentence review. If a sentence was appealable (%.e., if the defendant had a right to demand judicial review of the sentence), the Legislature would give this Court jurisdiction to review the sentence. If a sentence was not appealable if it was only peti-tionable), the Legislature would take away this Court's jurisdiction to review the sentence, and any petitions for sentence review would go to the supreme court.\\nIndeed, the current version of Appellate Rule 215(a) is premised on this long-standing legislative practice. Subsection (a)(1) of the rule lists the types of sentences that are appealable. Subsection (a)(d4) declares that whenever a sentence is appealable, the appeal must be filed in this Court. And subsection (a)(5) declares that whenever a sentence is not appealable, the defendant has a right to petition for sentence review, and this petition must be filed in the supreme court.\\nBut AS 12.55.120(e) departs from this practice. The second sentence of this statute declares that if a defendant's sentence is non-appealable because it is within the applicable presumptive range, the sentence may nevertheless \\\"be reviewed by an appellate court through a petition filed under rules adopted by the supreme court.\\\" And as we explained above, the Legislature used the phrase \\\"an appellate court\\\" (instead of \\\"the supreme court\\\") because the Legislature wanted to let the supreme court decide which appellate court would handle these petitions.\\nBecause this Court's jurisdictional statute, AS 22.07.020(b), contains a cross-reference to the provisions of AS 12.55.120, this second sentence of AS 12.55.120(e) has the practical effect of granting the supreme court the power to enlarge this Court's sentence review jurisdiction by court rule.\\nIf the supreme court exercises its authority under AS 12.55.120(e) to enact a court rule that allows this group of felony defendants to file petitions for sentence review, and if the new court rule specifies that these petitions should be filed in this Court (rather than in the supreme court, as is the current practice), then-because of the opening clause of AS 22.07.020(b)-the supreme court's action will have the effect of expanding this Court's sentence review jurisdiction to include the authority to hear these sentence review petitions.\\nThe Legislature has the authority to define this Court's jurisdiction. And both of the changes we have just been discussing are jurisdictional: (1) taking away this Court's authority to hear sentence appeals in cases where the right of appeal is taken away by AS 12.55.120(e), and (2) potentially expanding this Court's sentence review jurisdiction, if the supreme court exercises its authority under AS 12.55.120(e) to direct those sentence review petitions to this Court.\\nOur conclusions regarding AS 12.55.120(e)\\nBoth AS 12.55.120(e) and Appellate Rule 215(a)(1) define the groups of eriminal defendants who have a right to appeal their sentences, but the statute and the rule contain different definitions. These definitions are \\\"procedural\\\" under the supreme court's deci sion in Wharton. When the Legislature enacted AS 12.55.120(e), it failed to take action to amend or re-write Appellate Rule 215(a). Thus, the current appellate rule takes precedence over the statute, and the restrictions codified in AS 12.55.120(e) have no effect with respect to the right of eriminal defendants to appeal their sentences.\\nThe result is ostensibly different, however, with respect to the issue of this Court's jurisdiction to engage in sentence review. Under AS 22.07.020(b), this Court's sentence review jurisdiction hinges on the provisions of AS 12.55.120. Because AS 12.55.120(e) declares that defendants whose sentences fall within the presumptive range have no right of sentence appeal, the statute (by its terms) apparently deprives this Court of its authority to hear any such appeals.\\nAll of this presents a conundrum: The Legislature's attempt to eliminate these defendants' right of appeal was not successful. These defendants retain their right to appeal their sentences, and yet the language of AS 12.55.120(e) ostensibly eliminates this Court's jurisdiction to hear these sentence appeals.\\nBut if we implemented the jurisdiction-limiting provision of AS 12.55.120(e), these defendants' sentence appeals would have to be litigated in the supreme court. See AS 22.05.010(b): \\\"Appeal to the supreme court is a matter of right . in those actions and proceedings from which there is no right of appeal to the court of appeals under AS 22.07.020[.]\\\"\\nThis would be a novel result for Alaska law-because, ever since this Court began operation in 1980, the Legislature has consistently sent all sentence appeals to this Court, while all petitions for sentence review (%.e., all requests for appellate review filed by defendants who have no right of sentence appeal) have gone to the supreme court.\\nWe acknowledge that, under Alaska law, when one portion of a statute is determined to be invalid, there is a presumption that the remaining portions should still be given effect. This presumption is codified in AS 01.10.080:; \\\"Any law . enacted by the Alaska legislature . shall be construed as though it contained . the following language: 'If any provision of this Act, or the application thereof to any person or cireum-stance is held invalid, the remainder of this Act and the application to other persons or circumstances shall not be affected thereby.) 7\\nBecause of this presumption of severability, we begin with the assumption that even though the provision of AS 12.55.120(e) that restricts the right of sentence appeal is invalid, the provision of the statute that limits this Court's jurisdiction to hear these sentence appeals should nonetheless be given effect.\\nHowever, the Alaska Supreme Court has declared that this statutory presumption in favor of severability is a \\\"weak\\\" one-and that the real questions to be asked in this situation are: (1) whether the remaining, valid provision of the statute can be given legal effect in the absence of the accompanying invalid - portion, and if so, (2) whether the legislature would have intended the remaining provision to stand, even though the accompanying provision is invalid.\\nAs the supreme court has explained, the reason for asking this second question-i.e., trying to ascertain what the Legislature would probably want to happen, given the invalidation of part of the statute-is to avoid Judicial interpretations that \\\"result in a statute that no one wanted\\\". Thus, we must ask whether the Legislature intended to deprive this Court of our jurisdiction to hear the sentence appeals described in AS 12.55.120(c), even if these defendants continued to have the right to appeal their sentences, and even if this meant that these sentence appeals would have to be heard by the Alaska Supreme Court.\\nIf we gave effect to the jurisdiction-limiting provision of AS 12.55.120(e), we would be interpreting the statute to create two separate classes of sentence appeals. Defendants who were eligible to appeal under Appellate Rule 215(a)(1), but whose sentences fell within the applicable presumptive range, would have to pursue their appeals in the supreme court. All other defendants who were eligible to appeal under Appellate Rule 215(a)(1) would pursue their appeals in this Court.\\nWe conclude that the Legislature did not intend, and would not wish, to create this dichotomy in the handling of sentence appeals. The legislative history of AS 12.55.120(e) shows that the Legislature's goal was to eliminate these defendants' right of appeal. The concomitant limitation of this Court's jurisdiction-the limitation arising from the phrase \\\"except as limited in AS 12.55.120\\\" in our jurisdictional statute-was purely ancillary to this goal.\\nTo the extent the Legislature was actively concerned with matters of appellate jurisdiction, it appears that the Legislature's main goal was to eliminate the authority of either of Alaska's appellate courts to hear sentence appeals from defendants who received sentences within the applicable presumptive range-and to replace those sentence appeals with petitions for discretionary sentence review.\\nGiven all of this, we conclude that the Legislature did not intend the jurisdiction-limiting provision of AS 12.55.120(e) to take effect unless, at the same time, the restriction on the right of sentence appeal codified in AS 12.55.120(e) also took effect-i.e., unless these defendants were actually deprived of the right to appeal their sentences.\\nWe therefore hold that the provisions of AS 12.55.120(e) are not severable. Because the restriction on sentence appeals codified in AS 12.55.120(e) is invalid, no provision of AS 12.55.120(e) should be given effect. Thus, felony defendants who have the right to appeal their sentence under the provisions of Appellate Rule 215(a)(1) remain eligible to pursue their appeal even though their sentence is within the applicable presumptive range-and this Court retains its jurisdiction to hear those appeals.\\nWhether Munds 20-year composite sentence is excessive\\nAs we described in our first opinion in this case, Mund v. State, Alaska App. Memorandum Opinion No. 5914 (February 6, 2013), 2013 WL 466421, Mund drove over a pedestrian while attempting to escape from police officers who were trying to arrest him. (At the time, Mund was an escapee.)\\nBased on this incident, Mund was convicted of first-degree assault, third-degree assault, reckless driving, failing to stop and render aid at the seene of an injury accident, failing to stop at the direction of a police officer, and driving with a suspended license.\\nMund was 44 years old when he was sentenced for these offenses, and he had 37 prior convictions, including several felonies. Because of his prior felonies, Mund was a \\\"third felony offender\\\" for presumptive sentencing purposes, and he therefore faced a presumptive sentencing range of 15 to 20 years' imprisonment for his most serious offense, the class A felony of first-degree assault.\\nMund does not challenge the superior court's finding of four aggravating factors under AS 12.55.155(c); (c)(15)-that Mund had more than two prior felony convictions; (c)(20)-that Mund was on felony probation when he committed his current crimes; (c)(@21)-that Mund had a history of repeated instances of similar eriminal conduct; and (c)(31)-that Mund had five or more convie-tions for class A misdemeanors.\\nWhen the superior court imposed Mund's composite sentence of 20 years to serve, the court declared that its sentencing decision was based primarily on Mund's \\\"overall ree-ord\\\"-which, as we have explained, included 37 prior convictions.\\nThe court concluded that, given Mund's age and his criminal record, Mund's potential for rehabilitation was \\\"at best guarded\\\". The superior court further found that Mund was a \\\"worst offender\\\" as that phrase is defined in Alaska sentencing cases. Having made these findings, the court sentenced Mund to a composite term of 20 years' imprisonment-the top of the applicable presumptive range, and the maximum sentence for Mund's single most serious offense.\\nThe superior court's findings are supported by the record. Given those findings, and given the facts of the present case and Mund's criminal history, we can not say that a composite sentence of 20 years to serve is clearly mistaken. We therefore uphold this sentence.\\nConclusion\\nThe judgement of the superior court is AFFIRMED.\\nJudge COATS, concurring.\\n. First-degree assault is a class A felony (see AS 11.41.200(b)), and AS 12.55.125(c)(4) prescribes a presumptive sentencing range of 15 to 20 years' imprisonment for third felony offenders convicted of a class A felony (other than the sexual felonies covered by AS 12.55.125(i)).\\n. 439 P.2d 432 (Alaska 1968).\\n. Bear, 439 P.2d at 435.\\n. As enacted in 1969, AS 22.05.010(b) stated (in pertinent part): \\\"The supreme court has furisdiction to hear appeals of sentences of imprisonment lawfully imposed by the superior courts on the grounds that the sentence is excessive or too lenient and, in the exercise of this jurisdiction, may modify the sentence as provided by law and by the constitution of this state.\\\" (This statute is quoted in Wharton v. State, 590 P.2d 427, 431 (Alaska 1979).)\\nIn 1980, when the Legislature created this Court to handle criminal appeals, the Legislature deleted the sentence review provision from the supreme court's jurisdictional statute and placed corresponding sentence review provisions in this Court's jurisdictional statute. See SLA 1980, ch. 12, \\u00a7 1 and 2.\\n. As enacted in 1969, AS 12.55.120(a) stated: \\\"A sentence of imprisonment lawfully imposed by the superior court for a term or for aggregate terms exceeding one year may be appealed to the supreme court by the defendant on the ground that the sentence is excessive. By appealing a sentence under this section, the defendant waives the right to plead that by a revision of the sentence resulting from the appeal he has been twice placed in jeopardy for the same offense.\\\" (This statute is quoted in Wharton v. State, 590 P.2d 427, 429 n. 4 (Alaska 1979).)\\n. See Supreme Court Order No. 218 (effective January 15, 1976).\\n. The text of the rule is quoted in Wharton v. State, 590 P.2d 427, 429 (Alaska 1979).\\n. SLA 1980, ch. 12, \\u00a7 1.\\n. This 1995 amendment brought AS 12.55.120(a) to its present form:\\nA sentence of imprisonment lawfully imposed by the superior court for a term or for aggregate terms exceeding two years of unsuspended incarceration for a felony offense or exceeding 120 days for a misdemeanor offense may be appealed to the court of appeals by the defendant on the ground that the sentence is excessive, unless the sentence was imposed in accordance with a plea agreement . and that agreement provided for imposition of a specific sentence or a sentence equal to or less than a specified maximum sentence. If the superior court imposed a sentence in accordance with a plea agreement that provided for a minimum sentence, the defendant may appeal only that portion of the sentence that exceeds the minimum sentence provided for in the plea agreement and that exceeds two years of unsuspended incarceration for a felony offense or 120 days of unsuspended incarceration for a misdemeanor offense. By appealing a sentence under this section, the defendant waives the right to plead that by a revision of the sentence resulting from the appeal the defendant has been twice placed in jeopardy for the same offense.\\n. See Supreme Court Order No. 1226 (effective January 22, 1996).\\n. See the undated sectional analysis of Senate Bill 56 (24th Legislature), contained in the Senate Judiciary Committee file on Senate Bill 56.\\n. Minutes of the House Judiciary Committee concerning the Committee Substitute for Senate Bill 56: January 31, 2005 @ 2:17:22 and February 2, 2005 @ 1:53:57.\\n. Patricia Young, Manager, Legislative Research Services, Right of Appeal Based on the Excessiveness of a Criminal Sentence (January 31, 2005)-a legislative research report prepared for Senator Gene Therriault. This document, Report No. 05.141, is contained in the House Judi-clary Committee file on Senate Bill 56.\\n. Linda K. Wilson, \\\"Memorandum to the House Judiciary Committee on constitutional concerns raised by SB 56 and HB 78\\\" (January 31, 2005), contained in the House Judiciary Committee file on SB 56.\\n. 938 P.2d 1091 (Alaska App.1997).\\n. 938 P.2d at 1094-95.\\n. Minutes of the House Judiciary Committee concerning the Committee Substitute for Senate Bill 56: February 4, 2005 @ 1:17:20.\\n. Minutes of the House Finance Committee concerning the Committee Substitute for Senate Bill 56: February 16, 2005 @ 1:45:45.\\n. See House Committee Substitute for Committee Substitute for Senate Bill 56(FIN), section 7-available at: http://www.legis.state.ak.us/ basis/get_billtext.asp?hsid=$B0056D & session=24.\\n. Minutes of the House Finance Committee for February 16, 2005 @ 1:47:03.\\n. 2005 Senate Journal 429, available at: http:// www.legis.state.ak.us/basis/ get_jru_page.asp?session=24 & bill=SB56 & jrn=0439 & hse=S.\\n. 2005 House Journal 480, available at: http:// www get jrm_page. asp? session=24 & bill=$B56 & jrna=0480 & hse=H.\\n. See Leege v. Martin, 379 P.2d 447, 451 (Alaska 1963).\\n. Southeast Alaska Conservation Council v. State, 202 P.3d 1162, 1172-73 (Alaska 2009); Lynden Transport, Inc. v. State, 532 P.2d 700, 712-13 (Alaska 1975).\\n. Alaskans for a Common Language, Inc. v. Kritz, 170 P.3d 183, 210 (Alaska 2007).\\n. See AS 11.41.200(b) (classifying first-degree assault as a class A felony) and AS 12.55.125(c)(4) (prescribing a 15- to 20-year presumptive range for third felony offenders convicted of a class A felony, other than a sexual felony).\\n. See, eg., State v. Wortham, 537 P.2d 1117, 1120 (Alaska 1975); Napayonak v. State, 793 P.2d 1059, 1062 (Alaska App.1990).\\n. See AS 12.55.125(c).\\n. See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974) (an appellate court is to affirm a sentencing decision unless the decision is clearly mistaken).\"}"
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+"{\"id\": \"6980161\", \"name\": \"Bobbie Dee LENGELE, Appellant, v. STATE of Alaska, Appellee\", \"name_abbreviation\": \"Lengele v. State\", \"decision_date\": \"2013-02-08\", \"docket_number\": \"No. A-10679\", \"first_page\": \"931\", \"last_page\": \"938\", \"citations\": \"295 P.3d 931\", \"volume\": \"295\", \"reporter\": \"Pacific Reporter 3d\", \"court\": \"Alaska Court of Appeals\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T18:01:11.610455+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before: COATS, Chief Judge, and MANNHEIMER and BOLGER, Judges.\", \"parties\": \"Bobbie Dee LENGELE, Appellant, v. STATE of Alaska, Appellee.\", \"head_matter\": \"Bobbie Dee LENGELE, Appellant, v. STATE of Alaska, Appellee.\\nNo. A-10679.\\nCourt of Appeals of Alaska.\\nFeb. 8, 2013.\\nMichael T. Schwaiger, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.\\nGary L. Poorman and Charles D. Agerter, Assistant Attorneys General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.\\nBefore: COATS, Chief Judge, and MANNHEIMER and BOLGER, Judges.\", \"word_count\": \"4305\", \"char_count\": \"26499\", \"text\": \"OPINION\\nBOLGER, Judge.\\nIn this appeal, Bobbie Dee Lengele argues that a jury instruction improperly suggested that she could have no \\\"lawful exeuse\\\" for her failure to pay child support if she had ever voluntarily terminated her employment. We agree that this instruction was an incomplete and potentially misleading statement of Alaska law. But we conclude that Lengele failed to tell the trial judge the specific grounds for her objection to this instruction, and that her general objection was inadequate to preserve this issue for appeal. And when we review the evidence submitted at trial, the other jury instructions, and the closing arguments, we conclude that the language of this instruction was not plain error.\\nBackground\\nLengele and her husband, Rodney, married in 1986. They had two children, Rodney Jr. and Brianna. At the time of Lengele's criminal trial, Roduey Jr. was twenty-two years old and Brianna was thirteen years old.\\nPrior to the marriage, Lengele worked at a burger restaurant and at Village Inn as a waitress. Lengele trained to be a hair stylist, bartender, travel agent, and pipeline technician. During Lengele's marriage, she worked as a bartender, a retail clerk, and a pipeline security guard. As a security guard, she earned approximately $60,000 per year. Lengele left her job as a security guard and moved to Valdez to train for a pipeline technician job with Alyeska Pipeline Service Company, but she never completed the training for the technician position.\\nLengele and her husband separated in February 1999 and divorced in December 1999. Lengele was unemployed at the time of the divorce. During the custody proceedings, the court determined that Lengele and her husband would have joint legal custody. Her husband would have physical custody of the children seventy percent of the time, and Lengele would have physical custody thirty percent of the time. The court ordered Len-gele to pay $906.33 per month for child support. The child support order was retroactive to the date of Lengele's separation from her husband, so she owed $10,875.96 when the order was entered.\\nAccording to Lengele's later testimony, she did not know about the child support court date, and she learned about her child support obligation from her ex-husband. Lengele attempted to obtain a modification of her child support obligation on several occasions, but she was unsuccessful. Her requests for modification were denied because she failed to submit all the necessary paperwork. Lengele hired an attorney to help her with her request, but the attorney eventually withdrew from Lengele's case because he was unable to reach her.\\nLengele also testified that, following the divorce, she attempted to apply for new jobs. She completed two training classes for a pipeline security job, but she did not get the job because she did not have a driver's license. She also started training for an oil rig job, but some of the company's oil rigs burned down and left her without a job. She tried to obtain work with Alaska Fish and Game and the Alaska Railroad, but she was unsuccessful. She worked for a time as a bartender, but her pay did not cover her transportation costs.\\nLengele worked at Carrs-Safeway for a short time in 2003, and a portion of her wages was garnished by the Child Support Services Division (\\\"CSSD\\\"). - The first garnishment was $124.42, and the second garnishment was $85.51. At trial, the prosecutor cross-examined - Lengele about a conversation she had with an investigator. The prosecutor asked Lengele whether she told the investigator, \\\"[Carrs-Safeway] gave me part time [work] and I didn't have any way to get down there; it was just too much hardship trying to get down there, . and then once [the] child support hit me, it really wasn't worth it,\\\" Lengele responded that she believed the statement was taken out of context. Lengele also testified that she worked at Fred Meyer after terminating her employment at Carrs-Safeway. CSSD was not able to garnish her wages at Fred Meyer because she quit that job after only a few weeks.\\nLengele testified that she attempted to find other employment by attending job fairs. She also began to take care of her disabled mother in exchange for room, board, and some expenses for her children, but she was unable to obtain funding from the state or her native corporation for the time she spent caring for her mother.\\nThere was testimony that Lengele periodically provided her children with some clothes, food, and school supplies CSSD also garnished several of her Permanent Fund dividends. But Lengele failed to make any additional child support payments. As of May 2006, Lengele owed $80,884.02 in arrears; by February 2, 2009, she owed $112,314.24.\\nOn February 19, 2009, Lengele was indicted on one count of criminal nonsupport. At trial, Lengele argued that she lacked the actual ability to pay her child support obligation despite the exercise of reasonable efforts. Lengele's defense was that she was unable to pay her child support obligation because she was unable to obtain a driver's license, she had medical problems that stemmed from obesity and high blood pressure, she needed to care for her disabled mother, she was unable to find a job that could pay her enough to cover her child support obligation, and she was unable to obtain a modification of her child support.\\nPrior to closing arguments, the court discussed the jury instructions with the parties. The parties submitted substantially identical instructions on the elements of the crime of criminal nonsupport. The instructions provided that the State was required to show that Lengele's failure to provide support was \\\"without lawful exeuse-in other words, that she either actually had the financial ability to provide support or that she could have had such actual ability through the exercise of reasonable efforts.\\\"\\nThe State also submitted a more detailed instruction on the meaning of \\\"without lawful exeuse\\\": :\\nUnder the criminal nonsupport statute, in order for the defendant to have a lawful excuse the conditions giving rise to his/her failure to provide support must not have been of his/her own making. Nor can he/she pursue a course of conduct or act in a manner which materially contributes to the frustration of his/her duty to support his/her children. - Self-induced poverty is not a lawful excuse.\\nIt is not a lawful exeuse to the crime charged when, though employable, the defendant voluntarily terminates his/her employment, voluntarily reduces his/her earning capacity or fails to diligently seek employment. In this respect you may take into account the defendant's ability and skills acquired in his/her working life and the extent to which he [or shel has, when not employed, taken steps to find employment within his/her community.\\nFurthermore, you must not consider the defendant's obligation to support a second family or children incurred after the [court's] order in this case as a legal lawful exeuse for failure to support the child involved in this case. A [person's] first obligation is to his/her first children, and a voluntary assumption of a new obligation by marrying a second time does not excuse him [or her] from a prior obligation imposed by the court.\\nLengele objected to the second and third paragraphs of the foregoing proposal. Len-gele noted that the first paragraph of the State's proposed instruction followed Alaska law, but the \\\"other two paragraphs [were] not based on Alaska law\\\" and \\\"appear[ed] to be based on Oklahoma law and Illinois law.\\\" Lengele argued, \\\"I would ask to limit [the instruction] only to Alaska law, which is the law that the jurors have to decide under . and that's Johansen [the leading Alaska Supreme Court case on criminal nonsupport].\\\"\\nThe trial judge decided to keep the second paragraph because it comported with Taylor (a more recent court of appeals case on erim-inal nonsupport), but agreed to remove the third paragraph of the State's proposed jury instruction.\\nLengele's attorney agreed that \\\"self-induced poverty is not a lawful excuse\\\" under Alaska law. However, he argued that the statement about self-induced poverty in the first paragraph was sufficient to explain the law, and the second paragraph was \\\"surplus-age\\\" and \\\"not necessary.\\\" The judge overruled Lengele's objection and stated that he would remove the third paragraph of the State's instruction but would keep the second paragraph. The judge used the first and second paragraphs of the State's proposed instruction in Instruction No. 12 of the court's final instructions to the jury.\\nThe jury convicted Lengele of criminal nonsupport, and she now appeals.\\nDiscussion\\nA person who has been legally charged with an obligation of child support commits the crime of criminal nonsupport if they knowingly fail \\\"without lawful excuse\\\" to provide support for the child. In this statute, the term \\\"without lawful excuse\\\" means (1) \\\"having the financial ability to provide support\\\" or (2) \\\"having the capacity to acquire that ability through the exercise of reasonable efforts.\\\" The dispute in this case involves the meaning of this latter clause.\\nLengele did not preserve the issue she raises in this appeal.\\nLengele argues that the trial court incorrectly instructed the jury that \\\"(Jt is not a lawful exeuse to the crime charged when, though employable, the defendant voluntarily terminates his/her employment, voluntarily reduces his/her earning capacity or fails to diligently seek employment.\\\" As noted above, at trial, her counsel objected to this language solely on the ground that it \\\"was not based on Alaska law.\\\" We conclude that this objection was not specific enough to alert the trial judge to the precise nature of the error the defendant now argues on appeal-that the instruction improperly excluded instances where Lengele may have voluntarily but reasonably quit her employment.\\nAlaska Criminal Rule 80(a) provides in part: \\\"No party may assign as error any portion of the charge or omission therefrom unless the party objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which the party objects and the grounds of the objections.\\\" To determine whether a party's objection to a jury instruction is sufficient to preserve an argument for appeal, we apply a test borrowed from the cases construing the similar provisions of Civil Rule 51(a):\\nThe dictates of the rule are satisfied only if the judge is clearly made aware of the alleged error in or omission from the instructions. Counsel's objections must be specific enough to clearly bring into focus the precise nature of the asserted error.\\nThe Alaska Supreme Court has applied this test on numerous occasions.\\nFor example, in Hout v. NANA Commercial Catering, a plaintiff challenged the jury instructions relating to the defendant's liability for discrimination in employment on the ground that they did not describe the proper allocation of the burden of proof as required by federal precedent. But the Alaska Supreme Court declined to reach the merits of the plaintiff's challenge. The court noted that the plaintiff only objected generally to the instructions, saying they placed on her a heavy burden, but she did not distinctly state the grounds of her objection or suggest corrective language. The court held that a party who objects to a jury instruction must make an objection that is sufficient to put the court and opposing counsel on notice of the defect in the instruction given; a general objection is insufficient.\\nWe likewise conclude that Lengele's objection was insufficient to preserve the argument she is asserting in this appeal. In the trial court Lengele merely asserted that the disputed language was \\\"not an accurate statement of Alaska law.\\\" This general objection was insufficient to put the trial judge and opposing counsel on notice of the precise nature of the issue that she now raises-that the disputed language improperly excluded instances where the defendant may have reasonably terminated her employment.\\nThe disputed instruction was an incomplete and potentially misleading statement of Alaska law.\\nWe must still determine whether it is accurate under the criminal nonsupport statute to say that it is not a lawful exeuse \\\"when, though employable, the defendant voluntarily terminates his/her employment, voluntarily reduces his/her earning capacity or fails to diligently seek employment.\\\" Lengele argues that this language could suggest to the jury that, if Lengele was employed, then she was guilty of nonsupport if she terminated her employment voluntarily, even if there was a good reason for her decision. This suggestion would potentially conflict with the statutory definition of \\\"lawful exeuse\\\" and the case law that led to this definition.\\nAlaska courts presume that the legislature is aware of the common law when enacting statutes. Common law decisions are \\\"an especially important tool when 'a statute attempts to restate the common law.' \\\" When a judicial decision has \\\"settled the meaning of an existing statutory provision, repetition of the same language in a new statute indicates, as a general matter, the intent to incorporate its . judicial interpretations as well,\\\"\\nThe language and legislative history of the eriminal nonsupport statute and the definition of \\\"without lawful exeuse\\\" indicate that the legislature intended for the definition of \\\"without lawful exeuse\\\" to be consistent with judicial constructions of the statute. The commentary to the 1978 revised criminal code cited Johansen v. State, and expressly stated that \\\"a defendant may not be convicted under the statute for failure to provide support to his minor child if he is in fact financially unable to provide support and his poverty is not self-induced.\\\" In 2004, the legislature used our language from Taylor v. State when adopting a definition for \\\"without lawful exeuse. \\\" The legislative history further indicates that the legislature intended to incorporate the holding of Taylor when adopting this definition.\\nThis legislative history indicates that the legislature intended for the statute to be consistent with the holdings of Taylor and Johansen. There is no indication in the legislative history that the legislature intended to adopt an interpretation of \\\"without lawful exeuse\\\" that differed from these interpretations of Alaska case law.\\nIn Johansen, the Alaska Supreme Court had indicated that the jury should look at the cireumstances surrounding a defendant's failure to pay child support to determine whether the defendant had a legitimate and reasonable excuse for failing to comply with the child support order. Johansen was employed as a fisherman, but made only minimal amounts of money over the course of several years because of poor fishing conditions. The court held that Johansen could be required to seek other work-to make \\\"a reasonable effort to employ his earning capacity in directions other than the one he has chosen as his chief means of livelihood.\\\"\\nThe court's holding imposed an obligation on Johansen to seek out alternative employment. If successful, Johansen's efforts could have required that he voluntarily terminate his employment as a fisherman. It would have been illogical for the court to require Johansen to seek out better paying employment that would enable him to make his child support payments while also penalizing him for voluntarily terminating his former employment to do so.\\nIn Taylor, we relied on this discussion from Johansen when we interpreted \\\"without lawful exeuse\\\" to mean that \\\"the accused either actually had funds available for payment of support or that he could have obtained such funds through reasonable efforts.\\\"\\nWith this background in mind, it appears that Instruction No. 12 in Lengele's case was incomplete. -If a defendant voluntarily terminates their employment, but introduces evidence that the voluntary termination was to avoid excessive job expenses or to seek more gainful employment, the State would still have the burden of showing that the failure to pay support was \\\"without lawful exeuse.\\\" This jury instruction was therefore potentially misleading.\\nThe disputed language does not constitute plain error.\\nIncorrect or misleading language in a jury instruction will constitute plain error when (1) the error is not the result of an intelligent waiver or a strategie decision not to object, (2) the error affects substantial rights, (8) the error is obvious, and (4) the error is prejudicial. \\\"An error that is not constitutional in nature will be prejudicial if the defendant proves that there is a reasonable probability that it affected the outcome of the proceeding.\\\" In this case, the disputed language is not plain error because it was not obviously incorrect and it was not prejudicial.\\nThis language was not obviously incorrect because an obligor's failure to seek or maintain employment may establish that he or she does not have a reasonable excuse for failure to pay child support. This idea is consistent with the discussion in Johansen, where the court stated that an obligor \\\"will not be permitted to succeed on the defense of having a legitimate reason or exeuse for not complying with an order of child support where he has not made a reasonable effort to employ his earning capacity in directions other than the one he has chosen as his chief means of livelihood.\\\"\\nMoreover, the disputed language was not prejudicial when one takes into gccount the evidence submitted at trial, the other Jury instructions, and the closing arguments. The evidence at trial did not clearly include any instances where Lengele's decision to quit working was objectively reasonable. She said she quit working at Alyeska Pipeline Service Company because she was stressed due to calls from her boyfriend and her ex-husband. She also implied that she quit working a supermarket job because it wasn't worth it after CSSD garnished her wages. Even if Lengele had convinced the Jury that these were valid reasons to quit her employment, these two incidents are fairly insignificant in view of her ten-year period of non-payment of child support.\\nOther jury instructions clarified the State's burden to show that Lengele's failure to pay child support was unreasonable. Instruction 10 stated the statutory definition: \\\"Without lawful excuse means that the defendant either had funds available for payment of support or could have obtained funds through reasonable efforts.\\\" Instruction 11 stated that, when determining whether the failure to pay support was without lawful exeuse, the jury \\\"may and should consider all the circumstances of the defendant shown to you by the evidence. In this regard, it is proper to consider the physical condition of the defendant, hiy/her education and mental ability, his/her skills, his/her employment and the employment available to him, whatever money and wages and assets may have been available to him and all other evidence which you believe indicates an ability on his/her part to have paid support.\\\"\\nIn Instruction 12, the first paragraph of the instruction told the jury that \\\"a lawful excuse\\\" must not have been of the defendant's \\\"own making\\\" and that \\\"[slelf induced poverty is not a lawful exeuse.\\\" This language is consistent with the language of Jo-hansen and Taylor, indicating that \\\"a defendant may not be convicted under the statute for failure to provide support to his minor child if he is in fact financially unable to provide support and his poverty is non-self-induced.\\\" Read in context, the jury would likely conclude that the disputed language of the second paragraph of this instruction was merely an example or an explanation of this idea that \\\"self-induced poverty is not a lawful exeuse.\\\"\\nFinally, the closing arguments of the parties reinforced the idea that the State must prove that the defendant acted unreasonably. In his opening argument, the prosecutor confirmed that the State had to prove \\\"that Ms. Lengele's failure to provide support was without lawful exeuse, in other words, that she either actually had the financial ability to provide support or that she could have had such actual ability through . the exercise of reasonable efforts.\\\"\\nThe prosecutor then emphasized the first paragraph of Instruction 12:\\nI want to talk to you a little bit about this other instruction here, and I've underlined the second sentence. I want you to read the whole instruction, but I'm going to focus on the second sentence here. And that's-and the judge is going to tell you that nor can he or she pursue a course of conduct or act in a manner which material con-materially contributes to the frustration of his or her duty to support his or her children. Self-induced poverty is not a lawful excuse.\\nThink about that a little bit. You can't just simply say it's not worth it. That, ladies and gentlemen, is self-induced poverty. Your children are worth it and I think as a society, you'd agree with me that you have to pay to support your children. You don't get to decide that you're only going to work a certain kind of job. And you don't get to decide that, well, I'm not going to work retail and I'm not going to bartend. And that's what you heard in this case.\\nIn the defense attorney's argument, he contended that Lengele \\\"has tried to make reasonable effort after reasonable effort after reasonable effort to actually gain the ability to pay her child support agreement.\\\" He pointed out that the fourth element of this charge required the jury to determine\\nwhether Bobbie could have had the actual ability to pay her child support obligation through the exercise of reasonable efforts. So you're going to first have to figure out did what she do was reasonable? Was it reasonable for her to find work, try to find work? Was it reasonable for her to try and get her child support obligation modified? Was it reasonable for her to feel limited in her ability to do so based on her prior work experience, her training, and her current work experience? You also are going to have to figure out whether, not regarding those reasonable efforts, what she did, even if she were successful, would have given her the actual ability to pay her child support obligation.\\nIn the rebuttal argument, the prosecutor responded to the defense attorney's argument. He stated:\\nLadies and gentlemen, we know that she had the ability to provide financial support. She worked. She quit her job voluntarily. She self-induced her poverty. You don't get to only look for jobs that are high paying. - If we did that, if that was the law, then children would hardly ever get support. You don't get to pick your job in order to support your children. You've got to support your children whether you're working or not.\\nThese closing arguments reinforced the concept that Lengele's decisions to voluntarily quit her employment should be judged in the context of whether she was exercising reasonable efforts to provide support or whether she was living in self-induced poverty. In view of these arguments, we doubt that the jury would have believed that Len-gele could never quit a job even if it was economically advantageous to do so. We conclude that the disputed language in Instruction 12 was not plain error.\\nConclusion\\nThe disputed jury instruction in this case included an incomplete and potentially misleading statement of Alaska law. But when we review the evidence submitted at trial, the other jury instructions, and the closing arguments, we conclude that this instruction was not plain error. We therefore AFFIRM the superior court's judgment.\\n. AS 11.51.120(d).\\n. Johansen v. State, 491 P.2d 759 (Alaska 1971).\\n. Taylor v. State, 710 P.2d 1019 (Alaska App.1985).\\n. AS 11.51.120(a).\\n. AS 11.51.120(00(3).\\n. Heaps v. State, 30 P.3d 109, 114 (Alaska App.2001) (quoting In re Estate of McCoy, 844 P.2d 1131, 1134 (Alaska 1993)).\\n. See Jaso v. McCarthy, 923 P.2d 795, 799-800 (Alaska 1996); State v. Dupere, 709 P.2d 493, 498 n. 5 (Alaska 1985); Hout v. NANA Commercial Catering, 638 P.2d 186, 189 n. 9 (Alaska 1981); Drickersen v. Drickersen, 604 P.2d 1082, 1085 (Alaska 1979); Alaska Int'l Industries, Inc. v. Musarra, 602 P.2d 1240, 1243 n. 1 (Alaska 1979); Brown v. Estate of Jonz, 591 P.2d 532, 534 (Alaska 1979); City of Nome v. Ailak, 570 P.2d 162, 171 n. 23 (Alaska 1977); McLinn v. Kodiak Elec. Ass'n, Inc., 546 P.2d 1305, 1311 n. 15 (Alaska 1976); Saxton v. Harris, 395 P.2d 71, 73 (Alaska 1964); see also Novick v. Gouldsberry, 12 Alaska 267, 276, 173 F.2d 496 (9th Cir.1949) (quoting Palmer v. Hoffman, 318 U.S. 109, 119, 63 S.Ct. 477, 87 L.Ed. 645 (1943)).\\n. 638 P.2d at 189.\\n. Id.\\n. Id.\\n. Young v. Embley, 143 P.3d 936, 945 (Alaska 2006).\\n. Id. (quoting 2B Norman A. Singer, Sutherland Statutory Construction \\u00a7 50:02, at 146 (6th ed. 2000)).\\n. Bragdon v. Abbott, 524 U.S. 624, 645, 118 S.Ct. 2196, 141 L.Ed.2d 540 (1998).\\n. 491 P.2d 759 (Alaska 1971).\\n. Commentary on the Alaska Revised Criminal Code, Senate Journal Supp. No. 47 at 65, 1978 Senate Journal 1399.\\n. 710 P.2d 1019 (Alaska App.1985).\\n. Attachment to Memorandum from Vanessa Tondini, Committee Aide, House Judiciary Committee, to Jean Mischel, Legislative Legal (Feb. 25, 2004) (included in the bill file for H.B. 514, 23d Leg., 2d Sess. (2004)).\\n. Minutes of the House Judiciary Committee, House Bill 514, Tape 04-28, Side B (0902 to 0636) (Feb. 27, 2004); Attachment to Memorandum from Vanessa Tondini, Committee Aide, House Judiciary Committee, to Jean Mischel, Legislative Legal (Feb. 25, 2004) (included in the bill file for H.B. 514, 23d Leg., 2d Sess. (2004).\\n. Johansen, 491 P.2d at 769.\\n. Id. at 768-69.\\n. Id. at 769.\\n. Taylor, 710 P.2d at 1021.\\n. Khan v. State, 278 P.3d 893, 900 (Alaska 2012).\\n. Adams v. State, 261 P.3d 758, 773 (Alaska 2011).\\n. Johansen, 491 P.2d at 769.\\n. Taylor, 710 P.2d at 1021 (quoting Commentary on the Alaska Revised Criminal Code, Sen. J.Supp. No. 47 at 64-65, 1978 Sen. J. 1399) (citing Johansen, 491 P.2d at 759).\"}"
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+"{\"id\": \"6982974\", \"name\": \"Forrest J. AHVAKANA, Appellant, v. STATE of Alaska, Appellee\", \"name_abbreviation\": \"Ahvakana v. State\", \"decision_date\": \"2012-08-17\", \"docket_number\": \"No. A-10665\", \"first_page\": \"1284\", \"last_page\": \"1289\", \"citations\": \"283 P.3d 1284\", \"volume\": \"283\", \"reporter\": \"Pacific Reporter 3d\", \"court\": \"Alaska Court of Appeals\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T19:03:10.790127+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before: COATS, Chief Judge, and MANNHEIMER and BOLGER, Judges.\", \"parties\": \"Forrest J. AHVAKANA, Appellant, v. STATE of Alaska, Appellee.\", \"head_matter\": \"Forrest J. AHVAKANA, Appellant, v. STATE of Alaska, Appellee.\\nNo. A-10665.\\nCourt of Appeals of Alaska.\\nAug. 17, 2012.\\nRehearing Denied Sept. 17, 2012.\\nJames M. Hackett, Law Office of James M. Hackett, for the Appellant.\\nKenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and John J. Burns, Attorney General, Juneau, for the Appellee.\\nBefore: COATS, Chief Judge, and MANNHEIMER and BOLGER, Judges.\", \"word_count\": \"3198\", \"char_count\": \"19370\", \"text\": \"OPINION\\nBOLGER, Judge.\\nAfter observing evidence of a domestic violence assault, the police entered a trailer where the suspect, Forrest J. Abhvakana, was staying, found him hiding in a bedroom closet, and arrested him. Abhvakana argues that this entry and search were illegal. He also argues that the police unlawfully seized bloody clothing they found inside the trailer.\\nWe conclude that the entry and search of the trailer were justified under the cireum-stances of this case. The police officers confronted an emergency situation involving domestic violence, and they had a legitimate need to locate the individuals involved in that violence. Onee the police were lawfully inside the trailer, they were entitled to seize evidence that they observed in plain view.\\nAbhvakana additionally argues that the superior court abused its discretion by refusing to sever the charge that he committed a misdemeanor assault against his girlfriend from felony charges stemming from his attack on a different victim earlier that day. Ahvakana's argument on appeal is different from the argument he raised in support of his motion below, so he must show plain error. We find no plain error in the superior court's decision to deny the motion to sever the charges. Accordingly, we affirm Ahvaka-na's convictions.\\nBackground\\nOn December 8, 2008, shortly after 9:00 a.m., North Slope Police Sergeant Jose Gutierrez III, Officer Vance Enderle, and police trainee Stephen Smith responded to a report that Billy Kaleak had been assaulted in Barrow. The officers found Kaleak at his mother's house, covered in blood \\\"from head to toe, [with] blood running down from his face, down the front of him.\\\" Kaleak had \\\"large lacerations to his head\\\" and a \\\"large pool of blood . from behind his head on the floor.\\\" Kaleak told the police that Forrest Ahvakana had hit him with an empty bottle of Jack Daniels, and that the assault had occurred next door, where Kaleak lived.\\nThe police followed a blood trail leading to Kaleak's residence, There was a large amount of blood throughout the house. Officer Enderle testified, \\\"The house was a total wreck, the tables overturned, broken glass all over the place.\\\"\\nWhile the officers were taking photographs and collecting evidence of this assault, they received a report that a woman, Dolly Patterson, had heard \\\"what sounded like a female being beaten up out on Cakeatter Road.\\\" The officers responded to Cakeatter Road and contacted Patterson, who said that, while she was outside smoking a cigarette, she heard a woman sereaming and crying, and a man yelling. Patterson could not identify exactly where the sounds came from, but she pointed the officers in the direction of a nearby home, where the officers spoke with Johnnie Ningeok. Ningeok told the officers that Ahvakana and his girlfriend, Ella Black, were staying with Ahvakana's sister at the trailer next door.\\nAt this point, the officers believed Ahvaka-na was the suspect in two assaults. The officers approached the trailer with guns drawn and Enderle knocked on the door, but no one answered. Enderle and Smith tried to break the door in, but were unsuccessful. Ella Black eventually came to the door, naked and wrapped in a blanket. Through the window, Sergeant Gutierrez could see that Black had cuts on her face and blood on her hair, face, and neck. When Black opened the door, he observed that she was erying and shaking. Black told the officers that Ahvakana was not there, but they did not believe her. The police entered the residence. Officer Enderle searched the back bedroom and found Ahvakana hiding in a closet.\\nAhvakana was charged with attempted first-degree murder, first-and second-degree assault, first-degree burglary, and two counts of third-degree assault for his attack on Billy Kaleak He was charged with fourth-degree assault for recklessly causing physical injury to Ella Black, or placing her in fear of imminent physical injury. Before trial, Ahvakana moved to suppress the evidence the police obtained when they entered and searched the trailer. Ahvakana also moved to sever the fourth-degree assault charge from the felony charges because of the risk that the more serious charges would unfairly prejudice his defense to the misdemeanor assault. Superior Court Judge Richard H. Erlich denied both motions. The trial jury acquitted Abhvakana of attempted murder and convicted him of the other offenses. He appeals.\\nDiscussion\\nThe entry and search were valid under the emergency aid exception to the warrant requirement.\\nWarrantless entries of a residence are unreasonable under the Fourth Amendment unless the State proves by a preponderance of the evidence that the police conduct fell within a recognized exception to the warrant requirement. In Gallmeyer v. State, we ruled that a warrantless entry will be justified under the \\\"emergency aid\\\" exception if these three elements are met:\\n(1) The police must have reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance for the protection of life or property.\\n(2) The search must not be primarily motivated by intent to arrest [a person] and seize evidence.\\n(3) There must be some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched.\\nThis three-prong test was adopted from a New York Court of Appeals case, People v. Mitchell. Recently, in State v. Gibson (Gibson II), the Alaska Supreme Court adopted the Mitchell/Gallmeyer standard as a matter of state constitutional law.\\nIn Gibson II, the police responded to a 911 call placed by a woman who reported that a man was threatening to stab her in the head. When the police arrived at the scene, they heard a woman screaming inside the residence. Moments later, the woman \\\"tumbled out of the door\\\" wearing only a tank top and screaming for help. She was bleeding from a cut on the back of her head and her eye was swollen.\\nGibson appeared in the doorway of the trailer and the officers ordered him outside. He was cooperative and the police took him into custody. The woman was also placed in the back of a patrol car because she was \\\"screaming and erying and carrying on.\\\" She told the police there was no one left inside the trailer. The officers, unsure whether the woman was telling the truth, waited for backup officers to arrive and then entered the trailer to search for anyone who might be injured. They discovered a meth amphetamine laboratory and obtained a warrant to search the trailer for evidence of drug activity.\\nThe supreme court ruled that the entry and search of the trailer were justified by an ongoing emergency. The court found that the police could not be certain under the circumstances whether Gibson and the woman who reported the assault were the only individuals involved in the domestic violence in the trailer. The court noted that \\\"[sli-lence from the trailer for the 25 minutes the officers waited for the backup officer to arrive was as equally consistent with someone lying injured in the trailer as it was with no one being in the trailer.\\\"\\nThe court then declared the following rule: [WJhere[ ] (1) the police respond to a domestic violence call and find serious domestic violence has occurred; and (2) it is unclear whether the police have accounted for everyone, especially children, who may have caused or been affected by the serious domestic violence, the police may have a reasonable belief that some unknown person(s) might be lying injured and enter the premises to search for possible vice-tims.\\nIn this case, viewing the facts in the light most favorable to the superior court's ruling, the police responded to a report of a possible domestic violence assault-\\\"what sounded like a female being beaten up out on Cakeatter Road.\\\" The police were directed to the vicinity of the trailer where Ahvakana and his girlfriend, Black, were staying. The officers had just left the seene of a serious assault with a whiskey bottle, and Ahvakana had been identified as the perpetrator of that assault. When officers knocked on the door of the trailer, and then attempted, unsuccessfully, to push the door in, no one responded.\\nWhen Black finally came to the door, Sergeant Gutierrez observed through the window that she had cuts and blood on her face and that she was naked exeept for a blanket. When she opened the door, Gutierres saw that she was shaking and erying. Black denied that Abhvakana was in the house, but Gutierrez believed, based on his observation and his past experience with victims of domestic violence, that she might be lying. He testified that, given these cireumstances, he was concerned about Black's continued safety, the officers' safety, and the safety of anyone else who might still be in the trailer.\\nOfficer Enderle likewise testified:\\nI wanted to go through the house, secure it, and make sure there was nobody else in the house. We knew that . the house belonged to Forrest's sister and that they were-they were staying there; [we] had no idea if there was anybody else in the house at that time, any children, any other adults in the house. We wanted to clear the house, and make sure there wasn't anybody else injured and-and locate Forrest [Abhvakanal at that time.\\nIn Gibson II, the supreme court held that the first prong of the Gallimeyer test-the prong requiring the police to have reasonable grounds to believe there is an emergency at hand and an immediate need for their assistance in the protection of life or property-is satisfied if the police have good reason to believe there might be someone injured on the premises. The court declared that when the police determine that serious domestic violence has occurred, and that it is unclear whether everyone who may have caused or been affected by that domestic violence has been accounted for, \\\"the police may have a reasonable belief that some unknown person(s) might be lying injured and [may] enter the premises to search for possible victims.\\\" The supreme court found that this prong of the Gaillmeyer test was satisfied even though Gibson and his apparent victim were already outside the trailer in custody and the police had no specific information anyone else remained inside.\\\"\\nIn this case, the police had reason to believe Abhvakana was still inside the trailer, that Black might be in serious danger, and that there might be other victims. The police had been told that Abvakana shared the trailer with both Black and his sister, and the police confirmed the address with dispatch. A neighbor had just reported a man yelling and a woman erying and screaming in the vicinity. Abvakana had been implicated in a serious assault earlier that morning. And Ahvakana's girlfriend, Black, responded to the door of the trailer with fresh blood on her face, wearing only a blanket. Given these facts, we have no difficulty concluding that the first prong of the Gallmeyer test was satisfied in this case.\\nAbhvakana also argues that the State failed to prove the second prong of the Gall-meyer test, which requires that the search not be primarily motivated by the intent to arrest a person or seize evidence. But Sergeant Gutierrez testified that he \\\"[dlidn't know if [Black] was by herself or there [were] other . family members [inside the trailer].\\\" He said he was concerned for Black's safety and for the safety of the responding officers. Officer Enderle likewise testified that the police \\\"wanted to clear the house and make sure there wasn't anybody else injured.\\\" The superior court could reasonably conclude that when the police entered the trailer, their primary aim was not to initiate or further a criminal prosecution, but to ensure the safety of Black and any other victims who might be inside the residence.\\nThe third prong of the Gallmeyer test requires the police to have \\\"some reasonable basis, approximating probable cause, to asso-clate the emergency with the area or place to be searched.\\\" Abhvakana conceded this prong at the suppression hearing, and he did not discuss it in his opening brief. In his reply brief, he argues for the first time that the officers exceeded the permissible scope of the search by looking through the \\\"entire residence.\\\" This claim is waived because it was raised for the first time on appeal, in Abhvakana's reply brief. In any event, the superior court reasonably could have found that the officers responded appropriately by searching the bedroom closet, where Ahvaka-na or another victim could be concealed.\\nAhvakana also raises a number of Fourth Amendment challenges to the entry and search that he did not advance in the superi- or court. We conclude that these claims were not preserved, and also that they have no merit.\\nThe police lawfully seized the bloody clothing because it was in plain view.\\nAhvakana also challenges the police seizure of bloody clothing inside the trailer. Judge Erlich found that Black consented to the seizure of the clothing. We conclude that we need not decide that issue, because the police were authorized to seize evidence of a crime that they observed in plain view.\\nUnder Alaska law, a search must satisfy three requirements to fall within the plain view doctrine: (1) the initial intrusion that afforded the view must have been lawful; (2) the discovery of the evidence must have been inadvertent; and (8) the incriminating nature of the evidence must have been immediately apparent. Ahvakana only dis putes the first element-he argues that the seizure was illegal because the police were not lawfully inside the trailer. But as we already explained, the police entry and search were authorized under the emergency aid exception to the warrant requirement.\\nWe acknowledge that the United States Supreme Court has held that, under the Fourth Amendment, the warrantless seizure of evidence in plain view is allowed even if the discovery of the evidence was not inadvertent. But there is no dispute in this case that the evidence was inadvertently discovered, so we have no reason to decide whether Alaska should follow federal law in this regard.\\nThe court properly denied the motion to sever the assault charges.\\nIn superior court, Ahvakana moved under Criminal Rule 14 for severance of the fourth-degree assault charge from the attempted murder and other charges. He argued that he would be prejudiced by join-der of these offenses because the \\\"vast majority\\\" of the evidence related to the charge of attempted murder of Kaleak would not be admissible in a separate trial on the misdemeanor charge of assaulting Black.\\nOn appeal, Ahvakana argues that the superior court should have granted his motion to sever the charges for a different reason that he did not advance in superior court; because the evidence of his fourth-degree assault on Black prejudiced his alibi defense to the felony charges involving Kaleak. Because Ahvakana did not raise this claim below, he must show plain error.\\nAt Abhvakana's trial, Black testified that Abhvakana was not at Kaleak's residence when the attack on Kaleak occurred. Ahva-kana argues that the evidence that Black lied to protect him from conviction on the charge that he committed a misdemeanor assault against her later that day undermined the credibility of Black's testimony that he had an alibi to the felony charges. He argues that he was therefore unfairly prejudiced by joinder.\\nIf evidence of joined charges would be cross-admissible if the charges were tried separately, \\\"the defendant is hard-pressed to show actual prejudice from the failure to sever, since the evidence would have been admitted even if the judge had granted separate trials.\\\" The evidence that Abhvakana assaulted Black, and that Black lied to the police about that assault, was relevant to attack the eredibility of Black's testimony in support of Ahvakana's alibi defense-to show the nature of Black's and Abvakana's relationship, and to show that Black might be (as the State argued) \\\"just protecting her man.\\\" The evidence of Abhvakana's assault on Black would therefore have been admissible in a separate trial on the felony charges involving Kaleak,\\nAhvakana has not shown how this evidence prejudiced his trial on the felony charges, apart from its legitimate tendency to undermine the credibility of his defense. Furthermore, joinder of the charges was appropriate because the offenses were related, took place close in time, and involved overlapping evidence. We conclude that Ahvakana has not shown plain error.\\nConclusion\\nWe AFFIRM Abhvakana's convictions.\\n. AS 11.41.100(a)(1)(A); AS 11.31.100.\\n. AS 11.41.200(a)(1)-(3); AS 11.41.210(a)(1)-(2).\\n. AS 11.46.300(a)(1).\\n. AS 11.41.220(a)(1)(B).\\n. AS 11.41.230(a)(1), (3).\\n. Gallmeyer v. State, 640 P.2d 837, 841 (Alaska App.1982). >\\n. Id. at 842.\\n. Id. (citing People v. Mitchell, 39 NY.2d 173, 383 N.Y.S.2d 246, 347 N.E.2d 607, 609 (1976), abrogated by Brigham City, Utah v. Stuart, 547 U.S. 398, 126 S.Ct 1943, 164 LEd.2d 650 (2006)).\\n. 267 P.3d 645, 659 (Alaska 2012).\\n. Gibson v. State (Gibson I), 205 P.3d 352, 353 (Alaska App.2009), rev'd, Gibson II, 267 P.3d 645.\\n. Id.\\n. Id.\\n. Id.\\n. Id.\\n. Id.\\n. Id. at 354.\\n. Id.\\n. Id.\\n, Id.\\n. Gibson II, 267 P.3d at 664.\\n. Id.\\n. Id.\\n. Id. at 667.\\n. See State v. Miller, 207 P.3d 541, 543 (Alaska 2009).\\n. 267 P.3d at 667.\\n. Id.\\n. Id. at 663-64.\\n. Gallmeyer, 640 P.2d at 842.\\n. See Crittell v. Bingo, 83 P.3d 532, 536 n. 19 (Alaska 2004) (holding that a reply brief \\\"may raise no contentions not previously raised in either the appellant's or appellee's briefs\\\" (quoting Alaska R.App. P. 212(c)(3))).\\n. See Galilmeyer, 640 P.2d at 842-43, 845; cf. Maryland v. Buie, 494 U.S. 325, 334, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990) (holding that, incident to an arrest, officers could \\\"look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched\\\").\\n. See Lewis v. State, 9 P.3d 1028, 1034, 1037 (Alaska App.2000) (noting that appellate courts are authorized to affirm a trial court ruling on any ground supported by the undisputed record).\\n. Reeves v. State, 599 P.2d 727, 738 (Alaska 1979).\\n. Horton v. California, 496 U.S. 128, 130, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990).\\n. Alaska R.Crim. P. 14 provides in pertinent part:\\nIf it appears that a defendant or the state is unfairly prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants, or provide whatever other relief justice requires.\\nA showing that evidence of one offense would not be admissible during a separate trial of a joined offense or a codefendant does not constitute prejudice that warrants relief under this rule.\\n. See Punguk v. State, 784 P.2d 246, 248 (Alaska App.1989).\\n. Pease v. State, 54 P.3d 316, 322 (Alaska App.2002).\\n. Alaska R.Crim. P. 8(a).\"}"
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+"{\"id\": \"6983752\", \"name\": \"Leon D. RUARO, Appellant, v. STATE of Alaska, Appellee\", \"name_abbreviation\": \"Ruaro v. State\", \"decision_date\": \"2012-07-27\", \"docket_number\": \"No. A-10878\", \"first_page\": \"1233\", \"last_page\": \"1238\", \"citations\": \"280 P.3d 1233\", \"volume\": \"280\", \"reporter\": \"Pacific Reporter 3d\", \"court\": \"Alaska Court of Appeals\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-11T01:36:31.716773+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before: COATS, Chief Judge, and MANNHEIMER and BOLGER, Judges.\", \"parties\": \"Leon D. RUARO, Appellant, v. STATE of Alaska, Appellee.\", \"head_matter\": \"Leon D. RUARO, Appellant, v. STATE of Alaska, Appellee.\\nNo. A-10878.\\nCourt of Appeals of Alaska.\\nJuly 27, 2012.\\nRex Lamont Butler, Rex Lamont Butler & Associates, Anchorage, for the Appellant.\\nKenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and John J. Burns, Attorney General, Juneau, for the Appellee.\\nBefore: COATS, Chief Judge, and MANNHEIMER and BOLGER, Judges.\", \"word_count\": \"3493\", \"char_count\": \"21599\", \"text\": \"OPINION\\nCOATS, Chief Judge.\\nLeon D. Ruaro appeals his conviction for misconduct involving a controlled substance in the third degree for possessing cocaine with intent to deliver. The conviction arose after police, acting under the authority of a search warrant, searched a package that was shipped to Ruaro in Ketchikan through Alaska Marine Lines. The package contained one hundred grams of cocaine.\\nRuaro appeals, arguing that the testimony which the State presented to the magistrate at the hearing to obtain the warrant was insufficient to establish probable cause. We agree with Ruaro and reverse his conviction.\\nPactual and procedural background\\nOn the afternoon of May 30, 2006, Alaska State Trooper John K. Brown, Jr. appeared before Ketchikan Magistrate Mary P. Treiber to obtain a search warrant for a box addressed to Leon Ruaro. The box was being held at the Ketchikan Alaska Marine Lines (\\\"AML\\\") facility. Brown asserted that he had probable ecause to believe that this box contained cocaine.\\nTrooper Brown stated that earlier that afternoon he had received a phone call from an officer in the Ketchikan Police Department. That officer stated that Dan Kelly, a supervisor with AML, had reported the arrival of a suspicious box, and that a person named Leon Ruaro was looking for it. Trooper Brown at this point traveled to AML to speak with Kelly directly.\\nBrown testified that Kelly stated that Rua-ro had been receiving packages with AML since August 2005 and had received a total of seven packages between then and May 2006. The previous package Ruaro had received had weighed approximately forty pounds and had \\\"extreme amounts\\\" of tape on it. The current package was taped more than might be typical, but was not abnormally taped. This package weighed eighty pounds. Its label stated that it contained a new computer.\\nKelly told Trooper Brown that he believed Ruaro's package was suspicious. He based this conclusion on his years of experience dealing with freight and shipping. He pointed to the extreme amount of strapping tape on Ruaro's previous package, as well as to Ruaro's behavior when picking up that package. Kelly said that Ruaro had called to complain that the previous package was not being delivered in a timely manner. He had also shouted and pounded on the AML front desk, upsetting the employees. Kelly found this behavior suspicious and believed that the package probably contained drugs. Kelly also pointed to Ruaro's pattern of receiving packages; he found it unusual for someone to receive household goods in the periodic or piecemeal manner that Ruaro was receiving them. Trooper Brown said that Kelly had told him, \\\"if you are moving, you want all your items with you at once so it's unusual to ship household goods over a period . since August of last year.\\\" He said Ruaro had received six packages since August of 2005.\\nTrooper Brown provided more information about Ruaro's agitation over delays in receiving his packages. He relayed Kelly's statements that when Ruaro's last package was to have been delivered in early May, Ruaro became quite upset when the box was not unloaded from the shipping container on the day that Ruaro expected it. Kelly stated that when Ruaro learned he would have to wait until the following morning to pick up his shipment, he became angry and called the president of AML. Ruaro reportedly told the president that he was upset because he wasn't able to get his work documents. Rus-ro also said that he was looking for his cell phone (inside the still-unavailable box). Kelly noted that Ruaro had another cell phone available that he used to call the AML president.\\nKelly said that Ruaro was also verbally abusive on the present occasion when he called to see if his package was available.\\nTrooper Brown testified about the conversation he had with Ruaro when Ruaro arrived at the AML facility to pick up the package. Brown asked Ruaro if he could look in the package; Ruaro said he could not. He asked Ruaro if Ruaro knew what was in the package. Ruaro said that it contained \\\"an iPod and some household goods\\\" that \\\"he was having shipped up from a friend.\\\" Brown noted that the bill of lading for the package identified Ruaro as the shipper; Ruaro continued to deny shipping the package. Brown also noticed that the bill of lading identified the box's contents as a new computer. When he asked Ruaro why the bill of lading said \\\"computer,\\\" Ruaro said that the only computer equipment in the package was his iPod.\\nTrooper Brown later told the magistrate that Ruaro said that the shipments were connected to the fact that he was moving. But Brown noted that Ruaro had been shipping goods to Ketchikan since at least August 2005, nine months earlier. He also had information suggesting that Ruaro had been in town at least between December 2004 and February 2005.\\nThe officer also explained to the magistrate his efforts to use a drug-sniffing dog to investigate the package. He stated that another investigator had brought his dog to sniff the package. The dog did not alert on the package. Brown explained to the magistrate that it is possible to package drugs in a manner that will evade detection by dogs, and he provided some detail as to how this could be done. He stated that he had not encountered this method frequently but that he had seen this occur on occasion, especially with marijuana. Brown also stated that the drug dog, Mo, is trained to detect several smells, including cocaine.\\nFinally, Brown told the magistrate, \\\"I know Ruaro through Crime Stoppers.\\\" He then told the magistrate about three previous calls which were made to the Crime Stoppers telephone hotline involving Ruaro. All three calls were anonymous.\\nThe first report was on December 21, 2004. The caller stated that Ruaro, his uncle, and his mother were all cocaine dealers, and that two days earlier the caller had purchased two grams of cocaine from Ruaro at First City, a Ketchikan bar. The second call was on February 17, 2005. The caller stated that on February 24 or 25, Ruaro and his family members would be getting a new shipment of cocaine. The third report was on February 24, 2005. The caller stated that Ruaro had received a cocaine shipment via Alaska Airlines three days earlier and that \\\"there [were] 15 grams of cocaine for sale in the First City parking lot.\\\"\\nTrooper Brown stated that police spoke with Ruaro in late February 2005 about these reports. When they talked with Rua-ro, he denied selling drugs. Trooper Brown told the magistrate that law enforcement officers had \\\"tried to investigate\\\" the three Crime Stoppers reports but had been unable to develop enough information to make an arrest. Brown told the magistrate that Rua-ro had never been arrested and charged with drug possession.\\nBrown stated that the one time that law enforcement had contacted Ruaro locally was the February 2005 exchange in which Ruaro denied selling drugs. Brown also said that other officers had seen Ruaro at First City in early 2005. Although Brown had not personally seen Ruaro at First City when the Crime Stoppers reports came in, in December 2004 and February 2005, he did talk to other officers who had seen Ruaro there in that time period.\\nMagistrate Treiber found probable cause to issue the search warrant. When Trooper Brown served the search warrant, he discovered one hundred grams of cocaine hidden in the box inside several bags inside a computer tower.\\nThe State charged Ruaro with misconduct involving a controlled substance in the third degree for possessing cocaine with the intent to deliver. Ruaro moved to suppress the evidence based upon the contention that the warrant was not supported by probable cause. Superior Court Judge Michael A. Thompson denied the motion. In a bench trial before Superior Court Judge William B. Carey, Ruaro was convicted based upon stipulated facts.\\nWhy we conclude the evidence presented at the search warrant hearing was insufficient to establish probable cause to issue the warrant\\nThe State contends that Ruaro's actions surrounding the receipt of the package on May 830, 2006 (the package that was found to contain cocaine), were suspicious. From AML supervisor Kelly, Trooper Brown had reliable information that Ruaro had received six other packages since August of 2005. Kelly stated that Ruaro's pattern of receiving packages was unusual: \\\"if you are moving, you want all of your items with you at once so it's unusual to ship household goods over a period . since August of last year.\\\" Furthermore, Brown had information from Crime Stopper reports that Ruaro had been in Ketchikan in 2005, information that was corroborated by the fact that the police spoke with Ruaro in late February 2005 about those reports.\\nThe State also argues that Ruaro's statements to Trooper Brown when the officer asked him about the package were suspi-clous. Ruaro denied that he had shipped the package, even though his name appeared on the package as the shipper. And even though the bill of lading said the package contained a computer, Ruaro told Trooper Brown the package contained an iPod and household goods.\\nThe State also argues that Ruaro's emotional reactions to minor delays in the delivery of his packages were suspicious.\\nThe State recognizes that because the Crime Stoppers informant (or informants) were anonymous, the veracity of these reports needed to be established by each de-clarant's past reliability or by independent police corroboration. But the State mostly relies on the Crime Stoppers reports, coupled with the police contact with Ruaro in February 2005, to support the conclusion that Ruaro had been living in Ketchikan since that time. The State points out that, to the extent that the magistrate relied on the Crime Stoppers reports to establish Ruaro's presence in Ketchikan, that information was corroborated both by the prior police contact with Ruaro when they were investigating the Crime Stoppers reports and by Kelly's reports of his contact with Ruaro when Ruaro retrieved packages at AML.\\nThe State indicates that the magistrate only used the Crime Stoppers reports for one other purpose. The State observes that the magistrate \\\"relied on the Crime Stoppers reports only to establish that the type of contraband suspected of being in the package was cocaine.\\\" The State \\\"concedes that the reports lacked a sufficient foundation to establish the likely contents of the package.\\\" The State goes on to argue that it \\\"was not required to identify the contents [of the package] beyond establishing probable cause to believe [that the package contained] contraband. The other evidence presented to the magistrate was sufficient for that purpose.\\\"\\nIn his treatise on search and seizure, Professor LaFave observes that courts have allowed warrants to generally describe property to be seized when the warrant describes illegal drugs such as \\\"narcotic drugs,\\\" \\\"any illegal drugs,\\\" \\\"marijuana, dangerous drugs, stimulant drugs, and hallucinogenies,\\\" \\\"controlled substances,\\\" and \\\"narcotics and dangerous drugs and narcotics paraphernalia.\\\" But LaFave goes on to observe that \\\"[bly contrast, a more general reference to items which are contraband in nature but without even identifying their type is insufficient.\\\"\\nIt was not unreasonable for the magistrate to conclude that Ruaro's behavior surrounding his receipt of the package was suspicious. And Ruaro's behavior suggested that Ruaro did not want to reveal the contents of the package. But we conclude that the evidence which the State presented at the search warrant hearing was insufficient to establish probable cause that the package contained cocaine.\\nIn reaching this conclusion, we recognize that the magistrate's conclusion finding probable cause is entitled to great deference and that we should uphold that finding in doubtful or marginal cases. But, although Ruaro's behavior could certainly be described as suspicious, we fail to see how that suspicious behavior could establish probable cause that his package contained cocaine.\\nThe State offers another argument in support of upholding the search. The State points out that the trial court found that \\\"Ruaro offered to open the package while [law enforcement officers] were waiting\\\" for the warrant to be issued. The State argues that this finding indicates that Ruaro agreed to the search and that therefore, even if the warrant was defective, the State was authorized to conduct the search based upon Rua-ro's agreement. But the State has not established that Ruaro's offer to open the package was not based upon the fact that the police had obtained a warrant. Furthermore, as Ruaro points out, an offer only to open the package would not authorize the police to conduct the thorough search of items within the package that the police conducted in order to find the cocaine. Consequently, the State's argument that Ruaro voluntarily agreed to authorize the thorough search that the police conducted to find the cocaine is not supported by the record.\\nConclusion\\nWe conclude that the evidence which the State presented at the search warrant hear ing was insufficient to support a finding that Ruaro's package contained illegal drugs. We therefore hold that the superior court erred in denying Ruaro's motion to suppress the evidence the police obtained when they served the warrant. It is uncontested that, without this illegally seized evidence, the State presented insufficient evidence to support Ruaro's conviction.\\nThe judgment of the superior court is REVERSED.\\n. AS 11.71.030(a)(1).\\n. See Carter v. State, 910 P.2d 619, 623 (Alaska App.1996).\\n. See 2 Wayne R. LaFave, Search and Seizure, \\u00a7 4.6(b), at 620-21 (4th ed. 2004) (footnotes omitted).\\n. Id. \\u00a7 4.6(b), at 621 (footnote omitted).\\n. McClelland v. State, 928 P.2d 1224, 1225 (Alaska App.1996) (citing State v. Conway, 711 P.2d 555, 557 (Alaska App.1985)).\"}"
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+"{\"id\": \"6985569\", \"name\": \"Rebecca L. SHEFFIELD, Appellant, v. Michael T. SHEFFIELD, Appellee\", \"name_abbreviation\": \"Sheffield v. Sheffield\", \"decision_date\": \"2011-12-09\", \"docket_number\": \"No. S-14220\", \"first_page\": \"332\", \"last_page\": \"337\", \"citations\": \"265 P.3d 332\", \"volume\": \"265\", \"reporter\": \"Pacific Reporter 3d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T19:13:29.348877+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before: CARPENETI, Chief Justice, FABE, WINFREE, CHRISTEN, and STOWERS, Justices.\", \"parties\": \"Rebecca L. SHEFFIELD, Appellant, v. Michael T. SHEFFIELD, Appellee.\", \"head_matter\": \"Rebecca L. SHEFFIELD, Appellant, v. Michael T. SHEFFIELD, Appellee.\\nNo. S-14220.\\nSupreme Court of Alaska.\\nDec. 9, 2011.\\nJohn C. Pharr, Law Offices of John C. Pharr, Anchorage, for Appellant.\\nAndrew L. Josephson, The Law Offices of GR. Eschbacher, Anchorage, for Appellee.\\nBefore: CARPENETI, Chief Justice, FABE, WINFREE, CHRISTEN, and STOWERS, Justices.\", \"word_count\": \"2856\", \"char_count\": \"17875\", \"text\": \"OPINION\\nFABE, Justice.\\nI. INTRODUCTION\\nMichael and Rebecca Sheffield of Unalaska divorced in 2009. Because Michael planned to move to Virginia in 2010, he sought school-year custody of the couple's two sons. The superior court ruled that the children's best interests supported school-year custody with Michael in Virginia. Rebecca appeals, arguing that the superior court placed too much emphasis on the older son's preference to live in Virginia with his father, especially in relation to the geographical stability that would result if the children remained in Unalaska. We conclude that the superior court's consideration of the older child's preference was appropriate and that the superior court adequately considered the other statutory factors. We therefore affirm the superior court's decision.\\nII. FACTS AND PROCEEDINGS\\nMichael and Rebecca Sheffield were married on May 16, 1992 in Virginia. Both grew up in Virginia and both have family in the area. Michael and Rebecca have two sons: Davis, born in 1996, and Jacob, born in 2000. In 2003, the Sheffields moved from Virginia to Unalaska so that Rebecca could take a job with the Alaska Department of Environmental Conservation. After the couple moved to Unalaska, Michael obtained work with the city fire department. Michael and Rebecca initially planned to stay in Alaska for only two years, but the couple remained in Alaska until after their dissolution in 2009.\\nMichael and Rebecca separated in 2008 and filed a petition for dissolution of marriage on October 5, 2009. During the intervening 17 months of their separation, they shared custody. Until September 2008, Davis and Jacob lived with Michael \\\"full time and visited with their mom.\\\" After that, Michael and Rebecca had a shared custody arrangement. In the dissolution petition, the couple agreed to shared legal and physical custody. They agreed to have the children spend the first part of the week with Rebecca and the second part with Michael. The parenting plan appended to the petition included a provision on relocation:\\nIf either parent intends to move from the Dutch Harbor area, the moving parent shall provide at least 120 days written notice to the other parent. Neither parent shall remove or cause Davis and Jacob to be removed permanently from the Dutch Harbor area without first securing the written consent of the other parent or a court order. If the parents are unable to come to a new mutually satisfactory parenting plan as a result of any such moves, the parents shall seek mediation. Should mediation not remedy the problem, the parents shall seek court intervention.\\nA decree of dissolution was issued in December 2009.\\nMichael attended his father's funeral in Virginia in early 2010. He emailed Rebecca in March 2010 to tell her that he planned to marry Holly, a woman he had known from his childhood in Virginia. He explained that the \\\"thought of leaving Dutch [Harbor] maldel[him] physically ill\\\" but that he needed to be closer to his extended family, especially his mother. Michael and Holly married in December 2010. Holly has two teenage children from a previous marriage.\\nMichael moved to modify physical custody in June 2010 and sought to relocate to Virginia with the children \\\"as soon as possible.\\\" Michael filed a motion to have a custody investigator, Pamela Montgomery, interview the children to determine their preference regarding the proposed move. He also sought to waive the mediation provision in their custody agreement. Rebecca opposed both the motion to modify custody and the motion to appoint a custody investigator. In her opposition, Rebecca argued that the children knew \\\"only the rosy, unrealistic account lof the move] being given by their father.\\\"\\nThe superior court denied Michael's motions to have the children interviewed and to waive mediation. The parties tried to mediate their case but were unable to resolve their dispute, and the case was scheduled for trial. On November 28, 2010, Rebecca agreed to have the children interviewed but only by a \\\"qualified counselor\\\" based in Una-laska. Rebecea proposed Donna Henry, but Michael objected, asserting that Henry was \\\"a social friend\\\" of Rebecca's. Michael proposed three other individuals whom he asserted were \\\"unconnected to the parties.\\\" He then filed a motion to have the superior court select one of the parties' nominees because there was \\\"essentially no chance that the parties will be able to agree\\\" on someone. On December 17, 2010, the superior court selected one of Michael's nominees, Janet Giles, to interview the children. Giles interviewed Jacob and Davis on January 11, 2011 and faxed a letter to the superior court that day stating that both children preferred to live with Michael. She also faxed a copy of the letter to Michael's attorney but not to Rebecca's attorney.\\nThe superior court held an evidentiary hearing in January 2011, and Rebecca's attorney obtained a copy of Giles's letter from Michael's attorney on January 12, the first day of the hearing. Rebecca's attorney contacted Giles on the afternoon of January 12 in order to interview her, but Giles was not available at the proposed time. Rebecca moved to disqualify Giles on January 18. The superior court denied the motion but ruled that Giles would \\\"not be permitted to testify\\\" until she made herself available for Rebecca's attorney to interview her. Rebecca's attorney was never able to reach Giles, who was unavailable, and Giles did not testify. The superior court struck Giles's letter from the record.\\nFollowing the three-day hearing, the superior court found that Michael's reasons for moving to Virginia were legitimate. Because the move out of state constituted a substantial change of cireumstances as a matter of law, the court analyzed the best interest factors listed in AS 25.24.150 and determined that these factors supported awarding Michael custody of the children during the school year in Virginia. The superior court emphasized the quality of the schools and the extracurricular opportunities available in Virginia, along with the older child's preference for Virginia. The court also noted Rebecca's ability to rearrange her work to spend more time with the children in the summer. The superior court ruled that Michael would bear two-thirds of the cost of the children's travel to and from Unalaska. The superior court concluded that the children would finish the 2010-2011 school year in Unalaska before moving to Virginia and that they would return to Unalaska to spend the summers and some holidays with Rebecca.\\nIII. STANDARD OF REVIEW\\nAlaska Statute 25.20.110(a) provides that an \\\"award of custody of a child or visitation with the child may be modified if the court determines that a change in circumstances requires the modification of the award and the modification is in the best interests of the child.\\\" We will reverse a custody determination order \\\"only if the record shows an abuse of discretion or if controlling factual findings are clearly erroneous.\\\" An abuse of discretion in child custody awards occurs when \\\"the trial court considers improper factors, fails to consider statutorily mandated factors, or gives too much weight to some factors.\\\" Factual findings are clearly erroneous if a review of the record leaves this court \\\"with the definite and firm conviction that the superior court has made a mistake.\\\" The trial court's factual findings enjoy particular deference when they are based \\\"primarily on oral testimony, because the trial court, not this court, judges the credibility of witnesses and weighs conflicting evidence.\\\"\\nIV. DISCUSSION\\nA. The Superior Court Did Not Err In Giving Significant Weight To Davis's Preference.\\nRebecca argues that the court gave too much weight to 14-year-old Davis's preference to move to Virginia with his father. She argues that the superior court did not have enough information about Davis's preference to determine whether it was reliable. Specifically, Rebecca alleges an \\\"absence of . information about how Davis reached a preference\\\" and argues that Michael may have pressured Davis.\\nAlaska Statute 25.24.150(c)(8) instructs the superior court to consider \\\"the child's preference if the child is of sufficient age and capacity to form a preference.\\\" We have noted that as children \\\"get older, the trial court will be more inclined to respect their preference.\\\" And we have held that a teenager's preference can be a deciding factor because, while a young child's preferences are often unreliable, \\\"a relatively mature teenager's reasoned preference is not so lightly to be disregarded.\\\" We have also, however, affirmed superior court decisions finding a teenager's preference to be unreliable because it was manipulated or unduly influenced by a parent.\\nThe superior court found that the record \\\"made it clear that Davis does have a preference to go to Virginia.\\\" Although it decided not to admit Giles's report, the superior court recognized that there was not \\\"a whole lot of dispute about [Davis's] preference,\\\" and Re-becea's counsel did not dispute that characterization. Moreover, Rebecca testified that Davis would be \\\"disappoint[ed]\\\" to remain in Unalaska.\\nRebecea also acknowledged Davis's desire to move to Virginia in an affidavit and noted that he felt \\\"the schools were better and he wanted a change.\\\" Thus, the superior court's finding that Davis preferred to move to Virginia with his father was supported by the record, and there is no evidence that Davis's opinion was immature or unduly influenced by his father. The record suggests that Davis is interested in engineering and believes that the education system in Virginia might offer him more opportunities.\\nIn Yvomne S., we considered a case where a daughter went to live with her father, who then moved out of Alaska. While with her father, the daughter's grades dropped significantly. Nevertheless, we concluded that the daughter's \\\"strong preference to live with her father\\\" outweighed any change in cireumstance. The 14-year-old daughter's preference was the key factor, and the mother had \\\"not made any allegations (such as drug abuse, risky behavior, or mental illness) that . callled the daughter's] maturity into question.\\\" Similarly, Rebecca has not provided any reason to question Davis's maturity, nor has she pointed to evidence in the record suggesting Davis's preference was a result of pressure. The superior court heard testimony from three of Rebecca's witnesses that Davis is \\\"positive and outgoing,\\\" a \\\"bright kid [and] a leader.\\\" As children \\\"get older and more mature, their reasoned preference regarding custody will be entitled to 'substantial reliance' and is 'not so lightly to be disregarded.\\\" Thus, where both parents are capable and neither living situation would be detrimental to the child, an older child's preference should be honored. The superior court did not abuse its discretion by assigning significant weight to Davis's preference.\\nB. The Superior Court Adequately Considered Geographical Stability.\\nRebecca asserts that the superior court did not adequately consider the stability that staying in Unalaska would provide for the children. A superior court cannot \\\"ig-nor[e]\\\" statutory factors, but it has \\\"considerable discretion in determining the importance of each statutory factor in the context of a specific case and is not required to weigh the factors equally.\\\" In this case, the superior court found that \\\"each home has the ability to provide a great deal of stability.\\\" The superior court found that the greater degree of geographic stability offered by Unalaska was outweighed by Davis's preference for Virginia and by Rebecca's flexibility to rearrange her work schedule in the summers.\\nWe have explained that the stability factor is not limited to geographic stability and continuity, but also encompasses the \\\"totality of the circumstances [the children] were likely to encounter in their respective parents' homes.\\\" Here, the superior court did consider the importance of stability and continuity in its extensive findings. The superior court observed that \\\"a greater degree of stability for the youth . would be obtained by remaining in Unalaska,\\\" but it also recognized that \\\"the other part of the statute looks at the desirability of maintaining continuity, and . Davis's preference is to go and spend time in Virginia.\\\" The superior court concluded that Davis's \\\"mental needs are likely to be better met in the Virginia school system, given his academic and sports interests.\\\" The superior court determined that the children should move to Virginia only after finishing the school year in Unalaska to avoid causing them additional stress. In examining the stability factor, the superior court also found that Rebecca had greater flexibility in the summer and could spend more time with the children during their school vacation in Unalaska each summer.\\nThe superior court explained that the potential for either parent to be an excellent parent and to provide a good environment for the children made its decision more difficult. The superior court carefully considered the evidence as it weighed the relevant factors, and its decision was not an abuse of discretion.\\nv. CONCLUSION\\nFor the foregoing reasons, we AFFIRM the superior court's decision.\\n. The superior court considered the following statutory factors: the physical, emotional, mental, religious, and social needs of the children; the older child's preference; continuity; and Rebecca's scheduling flexibility during the summer. The superior court found that most of the factors, including the parents' ability to meet the children's needs; the love and affection existing between the children and each parent; and the ability of each parent to provide a close and continuing relationship between the other parent and the child, did not favor one parent over the other. The court found no evidence of domestic violence or substance abuse.\\n. Long v. Long, 816 P.2d 145, 150 (Alaska 1991) (internal citations omitted).\\n. Id.\\n. D.M. v. State, Div. of Family & Youth Servs., 995 P.2d 205, 207-08 (Alaska 2000).\\n. Josephine B. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 174 P.3d 217, 222 (Alaska 2007).\\n. See also Yvonne S. v. Wesley H., 245 P.3d 430, 432 (Alaska 2011) (\\\"In determining the best interests of a child for custody purposes, a court should consider several factors, including the child's preference if the child is of sufficient age and capacity to form a preference.\\\").\\n. William P. v. Taunya P., 258 P.3d 812, 816 (Alaska 2011) (citing Valentino v. Cote, 3 P.3d 337, 340-41 (Alaska 2000) (\\\"[TJrial courts should place weight upon an older child's preferences.\\\")); see also Harrington v. Jordan, Mem. Op. & J. No. 877, 1998 WL 34347990, at *3 (Alaska, Mar. 18, 1998); Veazey v. Veazey, 560 P.2d 382 n. 11 (Alaska 1977) (overruled by statute on other grounds).\\n. Yvonne S., 245 P.3d at 433 (quoting Valentino, 3 P.3d at 340-41).\\n. See Thomas v. Thomas, 171 P.3d 98, 105 (Alaska 2007) (stating that children's preferences are unreliable if based upon \\\"improper influence\\\"\\\" by a parent); Jenkins v. Handel, 10 P.3d 586, 591 (Alaska 2000) (finding the preference of 13- and 15-year-old children to be unreliable due to the influence of a sexual relationship with an older man and by siblings and adults within the community).\\n. The superior court commended the parents for showing \\\"a great deal of love and affection\\\" for the children in not having Davis testify about his preference, which would have been \\\"unduly stressful\\\" on the children.\\n. 245 P.3d 430, 435 (Alaska 2011).\\n. Id.\\n. Id.\\n. Id.\\n. Cf. Jenkins v. Handel, 10 P.3d 586, 590-91 (Alaska 2000) (rejecting two teenagers' preference to live with their mother because it was motivated by a \\\"romantic involvement\\\" with an older man which the mother did not discourage, as well as a desire for \\\"greater social and recreational opportunities\\\").\\n. William P. v. Taunya P., 258 P.3d 812, 819 (Alaska 2011) (quoting Valentino v. Cote, 3 P.3d 337, 341 (Alaska 2000)).\\n. We recognize the need for sensitivity on the part of trial judges to avoid unintentionally placing children in the middle of a custody battle. Helping parents to understand that custody decisions are made by the court and not their children may take some pressure off of an older child who has expressed a preference to live with a parent. We also recognize that there may be situations where the trial court will determine that a parent has coerced or manipulated a child into expressing a preference to live with that parent. See, e.g., Thomas v. Thomas, 171 P.3d 98, 105 (Alaska 2007) (concluding that children's testimony appeared to be \\\"swayed by [their father's] influence\\\" and remanding for superior court to consider whether older children's preference to live with their father was improperly influenced by their father).\\n. Williams v. Barbee, 243 P.3d 995, 1005 (Alaska 2010) (quoting Barlow v. Thompson, 221 P.3d 998, 1005 (Alaska 2009)) (internal quotation marks omitted).\\n. Evans v. Evans, 869 P.2d 478, 482 (Alaska 1994); see also Rooney v. Rooney, 914 P.2d 212, 217 (Alaska 1996) (\\\"Continuity and stability for a child come not only from staying in the same house, or going to the same school. Consideration should also be given to social and emotional factors such as who the primary care-giver was for the child and whether the child would be separated from siblings or family members if he was placed with one parent rather than another.\\\").\"}"
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+"{\"id\": \"6986508\", \"name\": \"George M. ROMERO, Appellant, v. STATE of Alaska, Appellee\", \"name_abbreviation\": \"Romero v. State\", \"decision_date\": \"2011-05-27\", \"docket_number\": \"No. A-10418\", \"first_page\": \"132\", \"last_page\": \"140\", \"citations\": \"258 P.3d 132\", \"volume\": \"258\", \"reporter\": \"Pacific Reporter 3d\", \"court\": \"Alaska Court of Appeals\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T17:05:19.546250+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before: COATS, Chief Judge, and MANNHEIMER and BOLGER, Judges.\", \"parties\": \"George M. ROMERO, Appellant, v. STATE of Alaska, Appellee.\", \"head_matter\": \"George M. ROMERO, Appellant, v. STATE of Alaska, Appellee.\\nNo. A-10418.\\nCourt of Appeals of Alaska.\\nMay 27, 2011.\\nJulia D. Moudy, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.\\nJonas M. Walker, Assistant District Attorney, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee.\\nBefore: COATS, Chief Judge, and MANNHEIMER and BOLGER, Judges.\", \"word_count\": \"4534\", \"char_count\": \"27854\", \"text\": \"OPINION\\nBOLGER, Judge.\\nGeorge M. Romero was convicted of contempt of court for disobeying an order issued by the superior court. He had been appointed as the third-party custodian for a felon who was awaiting a probation revocation proceeding. On appeal, Romero argues that the evidence was insufficient to support his conviction. We agree that the State failed to prove that the superior court issued an order that was sufficiently clear and definite to support a conviction for eriminal contempt.\\nBackground\\nIn November 2006, Superior Court Judge Larry D. Card approved Romero as a third-party custodian for Veronica Ashouwak. Ashouwak was a convicted felon who was awaiting disposition of a petition to revoke her probation. Her conduct while on probation had been poor and she was facing a fourth petition to revoke her probation. According to Judge Card, Ashouwak had \\\"major problems with [controlled] substances.\\\"\\nAt the bail hearing, the State objected to Ashouwak's release to Romero in part because Ashouwak's performance while under probation supervision was \\\"best described as abysmal\\\" and she needed the \\\"highest level of in-patient substance abuse treatment to avoid her self-destructive and illegal behavior.\\\" Despite the State's objection, Judge Card approved Romero as Ashouwak's third-party custodian.\\nThe written conditions of Ashouwak's release required her not to \\\"be where aleohol is sold or consumed\\\" and to have \\\"no guns in [the] home.\\\" But even though Judge Card ordered Ashouwak to avoid alcohol, he did not explicitly direct Romero to remove all alcohol from his residence.\\nA day or two after the bail hearing, Ashou-wak's probation officer searched Romero's residence while Ashouwak was there and found alcohol. Based on this evidence, the State charged Romero with violating the duties of a third-party custodian on the ground that he had not reported that Ashou-wak had violated her conditions of release.\\nThe State later amended the information and added a second count charging Romero with criminal contempt for knowingly disobeying a lawful court order. The State subsequently dismissed the first count-the charge that Romero had violated his duty to report-and proceeded to trial on the contempt of court charge.\\nDuring a hearing prior to trial, the prosecutor told the trial judge, District Court Judge Stephanie Rhoades that the contempt charge was based on Judge Card's oral order that Romero must remove all alcohol from his residence. The prosecutor repeated this assertion in his opening statement at trial before Judge Rhoades. The State maintains this position in this appeal.\\nDiscussion\\nRomero contends that Judge Card never ordered him to remove all alcohol from his residence. The State argues that even though \\\"Judge Card's order was not as clear as it could have been,\\\" Romero had to have known that he had been ordered to remove any aleohol from his residence before allowing Ashouwak to stay there. To resolve this issue, we view the evidence in the light most favorable to upholding the jury's verdict, asking whether a fair-minded juror exercising reasonable judgment could conclude that the State met its burden of proving guilt beyond a reasonable doubt.\\nAt Romero's trial, the State presented the audio recording of Ashouwak's bail hearing. At that hearing, the prosecutor, Ashouwak's defense attorney, and Judge Card were concerned about Ashouwak's apparent inability to control her aleohol and cocaine abuse. Ashouwak's defense attorney emphasized that Romero had experience as a third-party custodian for persons with chemical abuse issues, especially those with alcohol-related problems.\\nThe defense attorney urged Judge Card to have faith that Romero would follow all duties imposed by the court. The attorney also told the court that Romero was helping to search for an in-patient treatment facility for Ashouwak. And the attorney agreed that Romero would remove his firearms from his house.\\nThe defense attorney then asked Romero if he would \\\"also . take out any drop of aleohol out of your house[.]\\\" To this, Romero replied, \\\"Yes.\\\" Judge Card then commented, \\\"I don't think Mr. Romero drinks either.\\\" Romero responded, \\\"Very seldom,\\\" and Judge Card replied, \\\"Okay.\\\"\\nAfter this exchange, Judge Card outlined Ashouwak's conditions of release: \\\"No alcohol, no drugs, no violation of the law, follow conditions, including reporting to probation officer within 24 hours of release.\\\" Judge Card then entered written conditions of release ordering Ashouwak to \\\"not . consume alcohol or be where aleohol is sold or consumed.\\\"\\nViewing this evidence in the light most favorable to the guilty verdict, we conclude that the State did not prove that Judge Card had ordered Romero to remove all aleohol from his residence. To prove contempt for violating a court order, the State had to prove that Romero was aware of the requirements of a court order. That is, as part of proving that Romero had disobeyed a court order, the State had to prove that the court had entered an order specifically telling Romero what he was required to do.\\nThis principle was recently discussed by the Texas Court of Criminal Appeals in In re Davis The Davis court explained that a person charged with contempt of court is entitled to procedural due process, including \\\"full and complete notification. Accordingly, \\\"the order underlying a contempt judgment must set forth the terms of compliance in clear, specific, and unambiguous terms so that the person charged with obeying the order will readily know exactly what duties and obligations [have been] imposed upon [him or her].\\\" The \\\"question of whether an order is enforceable by contempt depends on whether the order is definite and certain, and the focus is on the wording of the [order] itself. We agree with this discussion.\\nIn this case, the State was required to prove that Judge Card issued an order requiring Romero to remove all aleohol from his residence. But Judge Card did not issue any definite order that Romero was required to do so. So Romero did not have notice that Judge Card had imposed this obligation. In the absence of a specific court order, Romero was not guilty of eriminal contempt.\\nConclusion\\nRomero's conviction is REVERSED. The district court shall enter a judgment of acquittal.\\nMANNHEIMER, Judge, concurring.\\n. AS 09.50.010(5); AS 12.80.010.\\n. AS 09.50.010 provides: \\\"The following acts or omissions with respect to a court of justice or court proceedings are contempts of the authority of the court: . (5) disobedience of a lawful judgment, order, or process of the court.\\\" AS 12.80.010 provides that this statute applies in criminal proceedings.\\n. Shorty v. State, 214 P.3d 374, 383-84 (Alaska App.2009).\\n. See Cont'l Ins. Cos. v. Bayless & Roberts, Inc., 548 P.2d 398, 407 (Alaska 1976); O'Brannon v. State, 812 P.2d 222, 228 (Alaska App.1991); see also L.A.M. v. State, 547 P.2d 827, 831 (Alaska 1976); Hutchison v. State, 27 P.3d 774, 780 (Alaska App.2001).\\n. See Affatato v. Considine, 305 Ga.App. 755, 700 S.E.2d 717, 723 (2010) (before a defendant can be found in contempt for violating a court order, the order should inform him in definite terms of the duties imposed upon him; therefore, the command must be express rather than implied) (citations omitted).\\n. 305 S.W.3d 326 (Tex.App.2010).\\n. Id. at 330.\\n. Id. at 330-31.\\n. Id. at 331; see also United States v. Straub, 508 F.3d 1003, 1012 (11th Cir.2007) (for purposes of contempt, '\\\"[aln order meets the 'reasonable specificity' requirement only if it is a 'clear, definite, and unambiguous' order requiring the action in question\\\"\\\") (citations omitted).\"}"
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+"{\"id\": \"6987538\", \"name\": \"SEAN B., Appellant, v. STATE of Alaska, DEPARTMENT OF HEALTH & SOCIAL SERVICES, Office of Children's Services, Appellee\", \"name_abbreviation\": \"Sean B. v. State, Department of Health & Social Services\", \"decision_date\": \"2011-01-21\", \"docket_number\": \"No. S-13759\", \"first_page\": \"330\", \"last_page\": \"340\", \"citations\": \"251 P.3d 330\", \"volume\": \"251\", \"reporter\": \"Pacific Reporter 3d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T21:06:43.853318+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before: CARPENETI, Chief Justice, FABE, WINFREE, CHRISTEN, and STOWERS, Justices.\", \"parties\": \"SEAN B., Appellant, v. STATE of Alaska, DEPARTMENT OF HEALTH & SOCIAL SERVICES, Office of Children's Services, Appellee.\", \"head_matter\": \"SEAN B., Appellant, v. STATE of Alaska, DEPARTMENT OF HEALTH & SOCIAL SERVICES, Office of Children's Services, Appellee.\\nNo. S-13759.\\nSupreme Court of Alaska.\\nJan. 21, 2011.\\nRehearing Denied Feb. 16, 2011.\\nFleur L. Roberts, Fairbanks, for Appellant.\\nMegan R. Webb, Assistant Attorney General, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for Appellee.\\nBefore: CARPENETI, Chief Justice, FABE, WINFREE, CHRISTEN, and STOWERS, Justices.\", \"word_count\": \"5878\", \"char_count\": \"36323\", \"text\": \"OPINION\\nCARPENETI, Chief Justice.\\nI. INTRODUCTION\\nA father appeals the superior court's termination of parental rights to his son, arguing that the court's conclusions were based on insufficient evidence and that the court made erroneous factual findings. Because the record supports the superior court's decision to terminate the father's parental rights, we affirm.\\nII. FACTS AND PROCEEDINGS\\nJosh was born April 5, 2001. His biological parents Sean and Melanie were in an \\\"off and on\\\" relationship for close to two years. About six weeks after Josh was born, Melanie met Mason, and the two soon married. Melanie and Mason had three children together: Kate, born in July 2002; Leon, born in October 2008; and Mia, born in July 2005. Earlier in her relationship with Mason, Melanie at times returned to Sean when she and Mason fought.\\nJosh, Melanie, and Mason moved around Arkansas and Indiana several times during Josh's first five years. They lived on their own at times; at other times they lived with Melanie's, Mason's, or Sean's relatives. Sean did not pay formal child support. Sean's mother Sarah occasionally gave Sean money, which he gave to Melanie when she visited him to ask for financial help.\\nMason joined the army in 2006. He was transferred to Alaska in the fall of 2006. Melanie and the four children lived with Sean's family briefly before moving to Alaska to join Mason. Sean testified that he gave permission for Josh to move to Alaska because he did not want Josh to be separated from his half-siblings.\\nMelanie, Mason, and the children had been living in Alaska for roughly a year when the Office of Children's Services (OCS) started to have contact with them. On August 3, 2007, OCS received a report of harm, which alleged that the children were neglected and Melanie, their primary caregiver, was abusing crack cocaine and alcohol. OCS did not assume custody of the children at that time. Two days later Mason was arrested for domestic violence after throwing Melanie against the garage, injuring her arm and wrist. As a result, the military ordered Mason not have contact with Melanie.\\nOn August 6 and 7, 2007, OCS social worker Jamie Batten made contact with Sean and Sarah in Arkansas. Batten notified them of Josh's contact with OCS and gathered some information about Sean's relationships with Melanie and Josh. Sarah expressed a desire to maintain contact with Josh.\\nOn August 14, Mason was found at home with Melanie and the children. He had left the military barracks without permission and was escorted back by state troopers. Mason was then confined to the barracks and unable to care for the children.\\nOn August 20, Melanie was arrested and incarcerated for domestic violence against her sister. Melanie injured her sister while intoxicated and angry. Her sister lived with the family and helped take care of the children.\\nA visit to the home showed that there were dried feces and urine stains on the carpet, urine-soaked clothes in the laundry room, and toys and clothes scattered throughout the house. The children did not have clean clothes, were dirty, and smelled of urine. There was no food at home. Neither Josh nor Kate was enrolled in school. Josh needed a speech therapist. It was not clear when the children had last seen a doctor. OCS assumed emergency custody of six-and-a-hbalf year-old Josh and his siblings. On August 21, Batten filed an Emergency Petition for Child in Need of Aid Adjudication and Temporary Custody.\\nThe case was soon transferred from intake worker Jamie Batten to Merrie Tullar, who oversaw the case for roughly the next two years. Tullar, who made contact with Sean in September 2007, encouraged him to send letters and photographs to reconnect with Josh. Written case plans also instructed Sean to send weekly correspondence to Josh. When Tullar spoke with Sean over the phone, she reiterated the importance of sending letters to Josh.\\nSean and Melanie stipulated that there was probable cause that Josh was a child in need of aid as a result of Melanie's conduct. In April 2008, Josh and his half-siblings were placed with Mason's parents in Arkansas. When Josh came to live with his step-grandparents Lois and Trevor, roughly eight months had passed since Batten had notified Sean of concerns about Josh's care. Tullar later testified that by this time, she had not received any letters from Sean.\\nMason and Melanie soon relocated to Arkansas separately. Mason then sought to have the child protection proceedings in Alaska dismissed. OCS opposed the motion, arguing that keeping the case in Alaska would provide necessary continuity and benefit the children. Superior Court Judge Robert B. Downes denied the motion to dismiss.\\nTullar made contact with social worker Phillip Williams of the Arkansas Department of Health and Human Services Williams worked with OCS to administer Josh's case plan. During the summer of 2008, while Tullar was on leave, OCS social worker Rebecca Buckles was assigned to Josh's case. That summer OCS changed the permanency plan from reunification to adoption. According to OCS records, Buckles spoke with Sean about terminating his parental rights on July 7, September 8, and September 22.\\nSean and his mother testified that they had trouble contacting and keeping in touch with caseworkers. Tullar testified that she received one voice mail from Sean, which she returned the following day.\\nAround September 2008, Sean provided photographs to Arkansas social worker Williams to pass on to Josh. Before the end of 2008, Sean also sent Josh two letters and a Christmas gift. Lois admitted that she did not give Josh the first letter that she received from Sean because she considered Sean's statements in the letter about reuniting the family inappropriate and potentially confusing for Josh. Lois testified that she read Josh the second letter, shared the photographs with Josh, and gave Josh the Christmas gift from Sean. Lois testified that Josh did not receive a birthday gift from Sean. According to Sean's testimony, he stopped writing letters to Josh after he discovered that correspondence he had sent did not reach Josh.\\nIn September 2008, OCS requested the Arkansas Department of Health and Human Services to conduct a home study and consider placing Josh with Sean under the Interstate Compact on the Placement of Children. Carl Seott, who supervised the Interstate Compact home study, testified at trial that Sean's case was open from September 10 to December 8. There was limited evidence of the Interstate Compact investigator's attempts to contact Sean during this period. Scott testified that a private contractor conducted the home study and that the records from its investigation had probably been destroyed under routine shredding procedures. In December 2008, Scott denied placement with Sean. That same month OCS filed a petition to terminate Sean's parental rights.\\nAlso in December 2008, Josh began to attend therapy sessions with licensed associate counselor Jillian Fennessee. A \\\"month . or two\\\" after Josh had been placed with his step-grandparents in Arkansas in April 2008, Tullar made contact with Arkansas social worker Williams and asked him to seek counseling for Josh. But no counseling occurred for at least six months. Tullar testified that the delay in setting up these appointments was the result of a \\\"communication breakdown\\\" between OCS and the social workers in Arkansas. Josh had 17 counseling sessions with Fennessee between December 2008 and the beginning of the trial in September 2009. According to Fen-nessee's testimony, Josh came in with adjustment issues, disruptive behavior, daytime and nighttime wetting (enuresis), and difficulty expressing himself. Fennessee testified that these issues improved in the time Josh lived with Lois and Trevor.\\nAround the time Josh began to meet with the counselor, the parties agreed to a new strategy for reintroducing Sean and Josh: Sean would contact Fennessee, who would help facilitate his contact with Josh. But the plan failed, and in the end, Sean met with Fennessee only once: Fennessee fit him into her schedule on March 11, 2009, the day after he missed a scheduled appointment. On two other occasions, Sean intended to meet with Fennessee but missed the scheduled appointments. The parties disagree about why Sean's first meeting, scheduled for January 19, did not take place. They also disagree about what role Sean played in setting up an appointment for April 29 and whether Sean should have been informed of the scheduled date when he visited Fennes-see's office on April 28.\\nIn addition to the scheduling problems, the parties had a misunderstanding about Fen-nessee's role in the reunification process. At first, OCS and Arkansas caseworkers believed that Fennessee was authorized to oversee the reunification; Sean believed Fen-nessee would hold sessions that he and Josh could attend together. According to Fennes-see, she informed Sean in March that she could not conduct a reunification because she was not authorized to provide therapy to adults. She stated that she bad a list of providers prepared for Sean, which he never picked up. Sean disputed this testimony, but the superior court concluded his testimony on this point was not credible. By May 2009, all the parties were informed that Fennessee could not provide direct services to Sean.\\nIn August 2009, OCS and Arkansas caseworkers agreed to arrange a meeting for Sean, Lois, and Trevor to help them establish a healthier relationship. Sean was unable to attend the first meeting, scheduled for September 1, so they rescheduled for September 8. Sean met with Lois and Trevor under the supervision of a court-appointed special advocate. They discussed reintroducing Sean and Josh by having Sean attend Josh's soccer games. They agreed that Sean would attend some of Josh's soccer games and could spend time with Josh, Lois, and Trevor afterward. Sean could not attend the next game because he had a work conflict. Josh's team did not have a game the following week. The first game Sean could attend was the week of the termination-of-parental-rights trial.\\nFollowing the trial, Judge Downes concluded that Sean had engaged in conduct that constituted abandonment. In the court's words, this conduct \\\"caused [Josh] to be a child in need of aid independently of and subsequent to the situation in [Melanie]'s home\\\" that led to the initial child-in-need-of-aid adjudication. The court also concluded that Sean failed to remedy this conduct, that OCS engaged in reasonable and tenacious efforts to reunify Sean and Josh, and that termination of Sean's rights was in Josh's best interests. Sean appeals.\\nIII. STANDARD OF REVIEW\\nSean challenges factual findings and issues of law. We will conclude that a factual finding is clearly erroneous, and refuse to affirm that finding, if review of the entire record leaves us with \\\"a definite and firm conviction that a mistake has been made.\\\" \\\"Conflicting evidence is generally insufficient to overturn the superior court, and we will not reweigh evidence when the record provides clear support for the superi- or court's ruling.\\\" Because \\\"trial courts are in the best position to weigh witness credibility, . we give particular deference to findings based on oral testimony.\\\" Whether the record supports the statutory requirements for termination is a question of law to which we apply our independent judgment.\\nIV. DISCUSSION\\nThe decision to terminate parental rights in this case is governed by title 47 of the Alaska Statutes and our precedent. In order to terminate parental rights under AS 47.10.088, the trial court must find, by clear and convincing evidence, that: (1) the child has been subjected to conduct or conditions described in AS 47.10.011 (that is, the child is in need of aid); (2) the parent has not remedied the harmful conduct or conditions or has failed to address the conduct or conditions that are likely to harm the child in the future; and (8) the State has made reasonable efforts to reunite the parent and child.\\\" In addition, the court must find, by a preponderance of the evidence, that termination of parental rights is in the child's best interests.\\nSean raises several issues in his appeal, including claims that the State's evidence is insufficient to support the superior court's conclusions that he abandoned Josh and failed to remedy the conditions or conduct that made Josh a child in need of aid, that the State did not engage in \\\"reasonable efforts\\\" to reunite him with Josh, that the superior court's best-interests analysis was erroneous, and that other statutes bar the superior court's conclusions. In addition, Sean challenges several factual findings, which are addressed as they arise in the discussion below.\\nA. The Superior Court Did Not Err In Concluding That Sean Abandoned Josh.\\nSean challenges the superior court's conclusion that he abandoned Josh under AS 47.10.0183. We have articulated a two-part test for reviewing cases of abandonment: \\\"(1) [there must be parental conduct evidencing a 'willful disregard' for parental obligations, leading to (2) the destruction of the parent-child relationship.\\\" We apply an objective test \\\"to see if actions demon strate a willful disregard of parental responsibility.\\\" A showing of wilifal disregard under the first prong is not effectively refuted by evidence of \\\"the parent's subjective intent or 'wishful thoughts and hopes for the child, \\\" nor by \\\"token efforts to communicate with [the] child.\\\" Rather, a parent must show \\\"continuing interest in the child and [... make] a genuine effort to maintain communication and association.\\\" The see-ond prong is satisfied if there is a causal connection between the parent's conduct and the destruction of the relationship. We have concluded that \\\"it is indicative of a breakdown of the parent-child relationship if the child's best interests are promoted by legal severance of the relation.\\\"\\nThe record in this case supports the conclusion that Sean abandoned Josh under this two-part test. Tullar testified that in April 2008, when Josh had been in custody for approximately eight months, she had not received a single letter from Sean, despite her instructions to send letters and re-establish contact with Josh. Based on the testimony of Fennessee and other evidence, the superior court found Sean \\\"missed appointments or showed up on the wrong day at the wrong time, and he repeatedly failed to nurture his child.\\\" And the superior court credited Tul-lar's testimony that Sean showed no sense of urgency about reconnecting with his son.\\nFaced with conflicting testimony, the superior court found Sean \\\"did not show any compulsion, any zeal, to be a parent to [Josh].\\\" Specifically, the court determined that Sean's testimony about sending weekly correspondence to Josh was not credible. The court also determined that Sean's testimony that Fennessee failed to inform him that she would be unable to oversee the reunification was not credible.\\nSean argues that he provided photographs and letters for Josh in September 2008. This is supported by testimony from Sean and other witnesses. The State does not contest the fact that Sean provided Josh with some photographs and two letters; however, the State persuasively argues that these communications are \\\"'token efforts[,} . insufficient to satisfy Sean's parental duty.\\\"\\nAccording to the superior court, Sean's \\\"pattern of behavior demonstrates that he has failed to objectively manifest a desire to be involved in [Josh]'s life.\\\" Sean asserted that he wanted to be a part of Josh's life. Without more, these manifestations of subjective intent do not outweigh the evidence that Sean was inattentive to Josh. The evidence described above satisfies the objective standard for \\\"willful disregard of parental responsibility\\\" under the first prong of the abandonment test; the superior court properly applied the legal standard.\\nWe now turn to the second prong of the abandonment test: whether Sean's disregard of parental responsibility led to the destruction of his relationship with Josh. The evidence supports this conclusion. Sean did not meet with Josh in person for two years, from September 2007 to September 2009. His correspondence with Josh was limited, and the evidence suggested that his son did not know much about him. The superior court found that Sean failed to \\\"remedy the disruption\\\" in his relationship with Josh. This finding is supported by evidence of Sean's failure to comply with the case plan, to send letters, and to attend meetings. This evi dence satisfies the second prong of the test for abandonment. There is clear and convincing evidence that Sean abandoned Josh; the superior court did not err in reaching this conclusion.\\nB. The Superior Court Did Not Err In Concluding That Sean Failed To Remedy Josh's Abandonment.\\nSean challenges the superior court's conclusion that he failed to remedy the conduct that placed Josh at substantial risk of harm. Sean argues that the State presented insufficient evidence to support this conclusion. Before terminating parental rights under AS 47.10.088, the court must find by clear and convincing evidence that the parent has not remedied the conduct that placed the child at substantial risk of harm. In making this determination, AS 47.10.088(b) directs courts to consider any fact relating to the best interest of the child including the parent's efforts; the history of harmful conduct or conditions created by the parent; the likelihood that harmful conduct will continue; and the likelihood of returning the child to the parent within a reasonable time, considering the child's age and needs. \\\"The superior court is entitled to rely on a parent's documented history of conduct as a predictor of future behavior.\\\"\\nTaken together, the facts suggest that Sean's efforts to remedy harmful conditions and conduct were minimal, that his pattern of inattentive conduct contributed to Josh's behavioral problems, that this pattern was likely to continue, and that it was unlikely Josh would be returned to Sean's care in a reasonable time. Sean's correspondence with Josh was limited. Sean's communications with social workers and service providers were irregular. There is no evidence suggesting that Sean took serious interest in Josh's life beyond stating that he wanted his son back. For example, Sean did not seek information regarding Josh's foster family in Fairbanks, his emotional and behavioral problems, or how he was adjusting to his life in Arkansas. The record is also missing evidence that would show Sean took any initiative to play a role in Josh's life, such as finding out more about Josh's living conditions or trying to establish a relationship with Josh's caretakers. Arkansas social workers had denied Josh's placement with Sean; it was not clear how long a new determination would take. In light of these facts, it appeared unlikely that Sean would address Josh's needs in the near future.\\nIn his reply brief, Sean asserts that he provided care and support to his son the best he could in light of the cireumstances. There is indeed evidence that Sean cared for Josh in his first years of life; that when Josh first moved to Alaska, Sean tried to keep in touch through webcam; that Sean called Tullar to ask about Josh; and that Sean wanted to be a good father to Josh. These isolated facts are insufficient to disrupt the conclusion that Sean failed to remedy the conduct and conditions threatening Josh's well-being. The weight of the evidence supports the State's argument that after the State took custody of Josh, Sean \\\"took an altogether passive role in parenting\\\" and did not remedy the situation as required by AS 47.10.088(a)(2).\\nThe superior court found that Sean expected \\\"others would exert all the efforts and he could sit back and wait.\\\" According to the superior court, Sean \\\"did not show any compulsion . to be a parent to [Josh]. Instead, he appeared content to let it happen to him if it would.\\\" The court also found that Sean's lack of monitoring and initiative caused a \\\"disruption in the parent-child relationship\\\" and that Sean failed to change his conduct \\\"in any meaningful way over the course of the case.\\\" Although the superior court did not list the factors identified in AS 47.10.088(b), its findings demonstrate a thorough consideration that satisfies the requirements of this provision. The superior court did not err in concluding that Sean failed to remedy the harmful conduct or conditions that rendered Josh a child in need of aid.\\nC. The Superior Court Did Not Err In Concluding That The State Engaged In Reasonable Reunification Efforts.\\nSean challenges the superior court's conclusion that the State made reasonable efforts to reunite him with Josh. Sean argues that there was insufficient evidence in the record to support this conclusion. Before terminating parental rights under AS 47.10.088, the court must find by clear and convincing evidence that the State made timely and reasonable efforts to provide services to the family for the purpose of reunification. Alaska Statute 47.10.086 elaborates on this requirement. The State must:\\n(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;\\n(2) actively offer the parent or guardian, and refer the parent or guardian to, the services . whenever community-based services are available and desired by the parent or guardian; and\\n(3) document the department's actions....\\nThe State has some discretion in determining what efforts to pursue and whether the timing is reasonable. A parent's willingness to participate in services is relevant to the seope of the efforts OCS must provide.\\nThe superior court found that OCS created three reunification plans, first requiring Sean to write letters to Josh, next requiring him to meet with Josh's counselor, and finally facilitate meetings between Sean, Lois, Trevor, and later Josh. OCS also provided paternity testing, requested a home study through the Interstate Compact on the Placement of Children, conducted regular meetings, and participated in mediation sessions. The record contains evidence that Tullar and her colleagues at OCS stayed abreast of Josh and Sean's situation, tried to maintain contact with Sean, encouraged Sean to reconnect with Josh under the terms of the case plan, and tried to help Sean navigate the Arkansas child protection system. OCS workers continued to coordinate efforts after Josh relocated to Arkansas. Based on this evidence, the superior court concluded that \\\"OCS's efforts . were reasonable, tenacious, suited to their purpose and unsuccessful.\\\"\\nThe record includes some contrary evidence. OCS had some difficulty bringing reunification plans into effect and balanced the goal of reunification against other goals. There were break-downs in communication between OCS, the Arkansas social workers, and Fennessee. OCS workers sought voluntary relinquishment of parental rights and were cautious about reintroducing Sean and Josh. These efforts reflect OCS's interest in finding a permanent and stable living arrangement for Josh and a concern that contact with Sean might upset Josh. Not all of OCS's efforts were aimed directly at placing Josh in Sean's care or protecting Sean's visitation rights, but the fact that OCS helped facilitate Josh's placement outside the father's home does not undercut the conclusion that OCS engaged in reasonable efforts in this case. The superior court found that Sean's \\\"failure to participate in his case plan has prevented OCS from progressing in its efforts to reunify [Josh] with [Sean). The fault for this is [Seanl's and not the department's.\\\" This finding is supported by the record. The limits of OCS's success in connecting Sean with services and introducing him to Josh do not bar the court from concluding that the reasonable efforts requirement was satisfied.\\nOCS caseworkers made efforts to maintain contact with Sean, connected him with services, and documented communications as required under the statute. The record provides clear and convincing evidence that OCS met the statutory requirements for \\\"reasonable efforts.\\\" The superior court did not err in reaching this conclusion.\\nD. The Superior Court Did Not Err In Concluding That Termination of Sean's Parental Rights Was In Josh's Best Interests.\\nSean challenges the superior court's conclusion that termination of parental rights was in Josh's best interests. Under AS 47.10.088(c) and Alaska Child in Need of Aid Rule 18(c)(8), the trial court must determine, by a preponderance of the evidence, whether termination of parental rights is in the best interests of the child. In making this determination, the court may consider (1) the likelihood of returning the child to the parent within a reasonable time based on the child's age or needs; (2) the amount of effort by the parent to remedy the conduct or the conditions in the home; (8) the harm caused to the child; (4) the likelihood that the harmful conduct will continue; and (5) the history of conduct by or conditions created by the parent, as well as favorable present placements (or lack thereof).\\nThe evidence in this case supports the conclusion that termination of parental rights was in Josh's best interests. Josh has found a stable and loving home with his step-grandparents Lois and Trevor. Lois and Trevor have also taken in Josh's three half-siblings. The court heard testimony that Josh needs stability and attention to his special needs. Sean has failed to show his commitment to Josh through regular and reliable contact. Sean has not demonstrated the ability to meet Josh's needs. The superior court did not err in concluding that termination of Sean's parental rights is in Josh's best interests.\\nE. Sean's Other Arguments Lack Merit.\\n1. Alaska Statute 47.10.019 does not preclude termination of parental rights in this case.\\nSean argues that AS 47.10.019 applies to his case. This statute provides:\\nNotwithstanding other provisions of this chapter, the court may not find a minor to be a child in need of aid under this chapter solely on the basis that the child's family is poor, lacks adequate housing, or exhibits a lifestyle that is different from the generally accepted lifestyle standard of the community where the family lives. However, this section may not be construed to prevent a court from finding that a child is in need of aid if the child has been subjected to conduct or conditions described in AS 47.10.011-47.10.015.\\nSean asserts that he \\\"was not steadily employed and had indigent status.\\\" He suggests that he was faced with a dilemma: He was criticized if he did not have work and \\\"blamed\\\" when his work schedule interfered with attending meetings. The record and factual findings do not support this argument. Sean could have communicated his work schedule more clearly. Instead the record suggests that Sean relied on others to keep track of meetings concerning Josh. The superior court found that Sean expected \\\"others would exert all the efforts\\\" and \\\"give him his child,\\\" rather than taking the initiative necessary to reunite with Josh. In light of these facts, AS 47.10.019 does not preclude the superior court's conclusions that Josh was a child in need of aid and that termination of Sean's parental rights was proper.\\n2. Alaska Statute 47.10.080(0 ) does not apply to this case.\\nSean also draws our attention to AS 47.10.080(0 ). This provision authorizes termination of parental rights where the parent is incarcerated. Sean suggests that this standard should have been applied in his case because he spent three weeks in county jail while Josh was in OCS custody. In Rick P. v. State, Office of Children's Services, we explained:\\n[Alaska Statute 47.10.080(o ) ] is merely an additional, independent authority OCS may rely on to terminate rights in cases where the parent's incarceration itself is likely to injure the child in the future; it does not supplant AS 47.10.088(a)(1)(A) and 47.10.011[ ] as grounds for terminating the rights of a parent who [meets the requirements under those statutes].[ ]\\nThe superior court was not required to apply AS 47.10.080(0 ) because AS 47.10.088(a)(1)(A) provides sufficient authority for terminating parental rights in this case.\\n3. Admission of Exhibit 11 does not constitute reversible error.\\nSean also argues that the trial court improperly found that placement with him was denied as result of his non-cooperation with the Interstate Compact on the Placement of Children home study. However, the superior court did not make this specific finding. At most, the court considered evidence to that effect. While this does not appear to be error, even if error it was harmless because there was sufficient other evidence in the record to support the superi- or court's conclusion that termination was justified under AS 47.10.088.\\nV. CONCLUSION\\nFor the above stated reasons, we AP-FIRM the superior court's termination of Sean's parental rights.\\n. Pseudonyms have been used to protect the privacy of all family members.\\n. Scott also testified that a notice sent to Sean during this process was returned to sender.\\n. Lois and Tullar also testified about Josh's special needs and involvement in services.\\n, Maisy W. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 175 P.3d 1263, 1267 (Alaska 2008) (quoting A.B. v. State, Dep't of Health & Soc. Servs., 7 P.3d 946, 950 (Alaska 2000)).\\n. Id. (citing Brynna B. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth Servs., 88 P.3d 527, 529 (Alaska 2004)).\\n. Jon S. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 212 P.3d 756, 762 n. 16 (Alaska 2009).\\n. Maisy W., 175 P.3d at 1267 (citing Martin N. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth Servs., 79 P.3d 50, 53 (Alaska 2003)).\\n. AS 47.10.088(a)(1); see also AS 47.10.011.\\n. AS 47.10.088(a)(2).\\n. AS 47.10.088(a)(3).\\n. JH. v. State, Dep't of Health & Soc. Servs., 30 P.3d 79, 86 n. 10 (Alaska 2001) (citing AS 47.10.088(b)-(c)); see also Child in Need of Aid Rule 18(c).\\n. Rick P. v. State, Office of Children's Servs., 109 P.3d 950, 957 (Alaska 2005) (citing G.C. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth Servs., 67 P.3d 648, 651-52 (Alaska 2003)).\\n. Jeff A.C., Jr. v. State, 117 P.3d 697, 704 (Alaska 2005).\\n. Id. (citing G.C., 67 P.3d at 652).\\n. Id. (citing D.K. v. State, Dep't of Health & Soc. Servs. (In re H.C.), 956 P.2d 477, 481 (Alaska 1998)) (quoting E.J.S. v. State, Dep't of Health & Soc. Servs., 754 P.2d 749, 751 (Alaska 1988)).\\n. Id. (citing H.C., 956 P.2d at 481) (internal quotation marks omitted).\\n. H.C., 956 P.2d at 483 (quoting 754 P.2d at 750-51).\\n. Id. (quoting In re B.J., 530 P.2d 747, 749 (Alaska 1975)).\\n. See also R.J.M. v. State, Dep't of Health & Soc. Servs., 946 P.2d 855, 868 (Alaska 1997) (explaining that \\\"a parent's stated willingness\\\" to care for children is not enough to preclude finding that the child is in need of aid (citing O.R. v. State, Dep't of Health & Soc. Servs., 932 P.2d 1303, 1310 (Alaska 1997))).\\n. The superior court disbelieved Sean's testimony that he sent weekly letters to Josh.\\n. AS 47.10.088(a)(2).\\n. Sherry R. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth Servs., 74 P.3d 896, 902-03 (Alaska 2003) (affirming trial court determination that parent failed to remedy harmful conditions within a reasonable time).\\n. See Seth D. v. State, Dep't of Health & Soc. Servs., Office of Children Servs., 175 P.3d 1222, 1226 n. 5 (Alaska 2008) (\\\"[The superior court made findings and a conclusion that appear to satisfy [AS 47.10].011(8).\\\")\\n. AS 47.10.086.\\n. See Jeff A.C., Jr. v. State, 117 P.3d 697, 706 (Alaska 2005) (\\\"In determining reasonable ef forts, we permit the state to consider the 'amount of time available' for reunification, considering how long the child has been in foster care and whether allowing more time for reunification would not be in the child's best interests.\\\" (citing G.C. v. State, Dep't of Health & Soc. Servs., 67 P.3d 648, 653 & n. 23 (Alaska 2003))); see also G.C., 67 P.3d at 653 (noting that opportunity for reasonable efforts was limited by parent's incarceration).\\n. Cf. Ben M. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 204 P.3d 1013, 1019-21 (Alaska 2009) (\\\"[A] parent's demonstrated lack of willingness to participate in treatment may be considered in determining whether the state has taken active efforts [under ICWA].\\\") (internal quotation marks omitted).\\n. The requirement that OCS engage in reasonable efforts under AS 47.10.088 helps to ensure that parental rights are not terminated without sufficient cause. The same statute makes clear, however, that where the requirements are met, termination of parental rights is justified \\\"for purposes of freeing a child for adoption or other permanent placement.\\\" AS 47.10.088. By its very terms, this statute permits OCS to pursue reunification while considering other permanent placements that may be in the child's best interests. In other words, the statute requires OCS to consider competing goals. See also J.H. v. State, Dep't of Health & Soc. Servs., 30 P.3d 79, 88-89 (Alaska 2001) (rejecting the argument that termination of parental rights was improper where parent relied on case plan that was later changed).\\n. In addition to challenging the legal sufficiency of the evidence under the statutory definition of reasonable efforts, Sean appears to challenge the factual finding that efforts to reunify him with Josh were unsuccessful because Sean failed to participate. Sean argues that OCS's mistakes or lack of coramitment to reunification caused reunification plans to fail. As the discussion in the text makes clear, there is evidence in the record to support the finding that Sean's failure to participate was detrimental to reunification; this finding is not clearly erroneous.\\n. Sean also argues that the superior court should not have reached the best interest inquiry because the other prongs of the AS 47.10.088 analysis were not satisfied. As explained in sections IV.A, IV.B, and IV.C of this opinion, we disagree.\\n. AS 47.10.088(b).\\n. Karrie B. ex rel. Reep v. Catherine J., 181 P.3d 177, 185 (Alaska 2008) (\\\"[We have held that the fact that a child has bonded with her foster parent can be a factor in considering whether it is in the child's best interests to terminate a parent's rights.\\\"); TF. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth Servs., 26 P.3d 1089, 1096 (Alaska 2001) (affirming \\\"superior court's decision to terminate [that] depended in part on its finding that delay in permanent placement would harm the twins\\\").\\n. 109 P.3d 950, 957 (Alaska 2005).\\n. Id.\\n. A memo authored by Carl Scott, who oversaw the home study conducted under the Interstate Compact on the Placement of Children, suggested that Sean failed to cooperate with the home study. This memo was admitted at trial as Exhibit 11. At first Sean objected to the admission of the memo because it was offered before the record's author had authenticated it; Carl Scott was later called to testify, apparently meeting that objection, because Sean had conceded that the memo was admissible as a record kept in the ordinary course of business. The superior court admitted the memo, noting that its probative value was limited. Admission of the memo was at most harmless error. Aside from the memo, there is testimony in the record that the Arkansas Department of Health and Human Services denied placement because the Interstate Compact investigators were not able to meet with Sean. There is also sufficient evidence in the record that is unrelated to the home study and that supports the superior court's conclusions.\"}"
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+"{\"id\": \"6988150\", \"name\": \"Todd E. RICHARDS, Appellant, v. STATE of Alaska, Appellee\", \"name_abbreviation\": \"Richards v. State\", \"decision_date\": \"2011-03-04\", \"docket_number\": \"No. A-10570\", \"first_page\": \"303\", \"last_page\": \"307\", \"citations\": \"249 P.3d 303\", \"volume\": \"249\", \"reporter\": \"Pacific Reporter 3d\", \"court\": \"Alaska Court of Appeals\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-11T00:56:03.475704+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before: COATS, Chief Judge, and MANNHEIMER and BOLGER, Judges.\", \"parties\": \"Todd E. RICHARDS, Appellant, v. STATE of Alaska, Appellee.\", \"head_matter\": \"Todd E. RICHARDS, Appellant, v. STATE of Alaska, Appellee.\\nNo. A-10570.\\nCourt of Appeals of Alaska.\\nMarch 4, 2011.\\nJane B. Martinez, Anchorage, for the Appellant.\\nDiane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee.\\nBefore: COATS, Chief Judge, and MANNHEIMER and BOLGER, Judges.\", \"word_count\": \"2238\", \"char_count\": \"13881\", \"text\": \"OPINION\\nMANNHEIMER, Judge.\\nTodd E. Richards appeals his convictions for third-degree assault (placing another person in fear of imminent serious injury by means of a dangerous instrument) and fourth-degree criminal mischief (unlawfully damaging the property of another in an amount of at least $50). Richards asserts that the evidence presented at his trial is insufficient to support the jury's verdicts. Richards also asserts that the 18-month composite sentence he received for these two crimes is excessive.\\nWith regard to Richards's merit appeal (that is, his attack on his convictions), we conclude that the evidence is sufficient to support the jury's verdicts, and we therefore affirm Richards's convictions for third-degree assault and fourth-degree criminal mischief. With regard to the sentence appeal, however, we conclude that we do not have jurisdiction to review Richards's sentence, and we therefore refer that issue to the supreme court.\\nThe sufficiency of the evidence to support Richards's convictions for third-degree assault and fourth-degree criminal mischief\\nWhen a defendant claims that the evidence is insufficient to support a criminal conviction, we must view the evidence (and all reasonable inferences to be drawn from that evidence) in the light most favorable to upholding the verdict. Accordingly, we now present the facts of Richards's case in that light:\\nOn October 12, 2008, Richards and his wife Lorinda got into a fight after an evening of heavy drinking. Lorinda testified that Richards attacked her, wrestled her to the floor of their RV, and punched her in the eye. At some point during this altercation, Lorinda offered to leave, and she started gathering her possessions. When she asked Richards's son Travis to help her, Richards became enraged. Richards shoved her out the door and proceeded to throw her belongings outside, onto the ground.\\nLorinda began loading her belongings into her car. As she was putting the last of her things into the car, Richards stormed out of the RV and said, \\\"I'll show you, you fucking bitch.\\\" Lorinda threw the remainder of her possessions into the car, got into the driver's seat, and turned on the headlights. In the light of the headlights, she saw Richards coming toward her, carrying a splitting maul.\\nRichards threw the splitting maul at his wife's car. The maul smashed completely through the windshield, landing in the passenger's seat next to Lorinda. In a panic, and believing that her husband was trying to kill her, Lorinda floored the accelerator-even though she was barely able to see through the damaged windshield. The vehicle struck Richards, apparently with a glane-ing blow, and then Lorinda drove away from the property.\\nLorinda drove to the local Tesoro gas station and asked the store clerk to call the police for her. The Tesoro store clerk testified that Lorinda was erying and \\\"very distraught\\\". He observed that her windshield had a large vertical crack in it, and that there was a maul on the passenger's seat. When the store clerk asked Lorinda for more information before he called the police, she told him that her husband had thrown the maul through the windshield.\\nThe recording of the 911 call from the gas station was played into evidence at Richards's trial During this call, a hysterical Lorinda can be heard saying that Richards threw an axe through her windshield, that he tried to kill her, and that she had glass in her eye and in her boots. Lorinda was also concerned that Richards might be injured, because she had hit him with her car.\\nWhile this 911 call was in progress, one of the 911 operators called Richards's cell phone number to determine if he was in need of medical assistance. Richards repeatedly told the 911 operator that he was fine and that he did not need medical attention. Specifically, Richards stated, \\\"We're fine; me and Travis are fine. Lorinda is gone, so it's all good.\\\" The 911 operator responded, \\\"We're concerned about you being injured or something,\\\" to which Richards replied, \\\"No, there's no-nothing like that.... [I'm] just cleaning up the place and getting ready for bed.\\\"\\nSergeant Warren Bates, one of the police officers who responded to the 911 call, described Lorinda as \\\"very distraught\\\"; he testified that Lorinda told him that her husband had tried to kill her by throwing an axe through the windshield. Immediately after speaking to Lorinda, Sergeant Bates went to the Richards residence to investigate. Bates repeatedly knocked on the door of the RV, but no one answered.\\nOver the next month, Bates made several attempts to contact either Richards or his son Travis. Bates finally succeeded in interviewing Richards about a month after the incident. Richards told Bates that he was so drunk on the night in question that he had no memory of what happened.\\nThis evidence, if believed, is sufficient to support the jury's verdicts on the assault and criminal mischief charges.\\nIt is true that Richards and his son Travis took the stand at Richards's trial and offered a substantially different, exculpatory account of the events of that night. However, as explained above, when a defendant claims that the evidence is insufficient to support a criminal conviction, an appellate court must decide that claim by viewing the evidence in the light most favorable to the jury's verdict, even though contrary evidence may have been presented at trial. Viewing the trial evidence in that manner, it was sufficient to support Richards's convictions.\\nRichards's sentence appeal\\nRichards argues that his sentence for these two crimes is excessive.\\nAs a first felony offender, Richards faced a presumptive sentencing range of 0 to 2 years' imprisonment for his third-degree assault conviction. Superior Court Judge Patricia Collings sentenced Richards to a term of 24 months with 12 months suspended (6.e., 12 months to serve). Richards faced a sentence of up to 1 year's imprisonment for his fourth-degree criminal mischief conviction. Judge Collins sentenced Richards to a term of 12 months with 6 months suspended (ie, 6 months to serve). Judge Collins made the time-to-serve components of these two sentences concurrent, and the suspended time consecutive. Thus, Richards's composite sentence is 12 months to serve, with an additional 18 months suspended.\\nThis Court has the authority to review a misdemeanor sentence that exceeds 120 days to serve. See AS 12.55.120(a) and AS 22.07.020(b). Thus, if Richards had been convicted of fourth-degree eriminal mischief alone, and had been sentenced to the same 6 months to serve, we would have the authority to review his sentence.\\nBut Richards's sentence for the felony offense of third-degree assault is only 12 months to serve. Under AS 12.55.120(a), a defendant has no right to appeal a felony sentence unless that sentence exceeds 2 years to serve-and, under AS 22.07.020(b), this Court has no jurisdiction to review a felony sentence unless that sentence exceeds 2 years to serve. Moreover, Richards's 12-month sentence is within the applicable presumptive sentencing range for a first felony offender convicted of third-degree assault. For this additional reason, Richards has no right to appeal his felony sentence, and this Court has no jurisdiction to review it. See AS 12.55.120(e) and AS 22.07.020(b).\\nIt is true that the State has not opposed Richards's sentence appeal on these grounds (i.e., Richards's lack of entitlement to pursue an appeal, and this Court's lack of jurisdiction to entertain the appeal). But when an appellate court perceives a potential flaw in its subject-matter jurisdiction, the court is required to address and resolve this jurisdictional issue before moving forward. See Robertson v. Riplett, 194 P.3d 382, 386 (Alaska 2008) \\\"Subject matter jurisdiction . may be raised at any stage of the litigation and[,] if noticed [by the court,] must be raised by the court if not raised by the parties.\\\" (Quoting Stone v. Stone, 647 P.2d 582, 584 n. 1 (Alaska 1982).) See also O'Link v. O'Link, 632 P.2d 225, 226 n. 2 (Alaska 1981); Alaska Civil Rule 12(h)(8).\\n(The corresponding federal law is the same: if a court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action, even if the parties have not raised this issue. See Rice v. Rice Foundation, 610 F.2d 471, 474 (7th Cir.1979): \\\"[A] federal court, including a court of appeals, must raise the issue [of subject-matter jurisdiction] on its own motion where the parties fail to bring it to the court's attention.\\\")\\nThe problem in the present case is that Richards asks us to review his composite sentence for excessiveness, but only one of his two sentences falls within our jurisdiction. As explained above, we have jurisdiction to review Richards's misdemeanor sentence, but not his felony sentence. Indeed, we would have no felony sentence appeal jurisdiction in Richards's case even if we focused on the composite sentence that Richards received for both offenses. As we explained above, Judge Collins imposed Richards's active terms of imprisonment concurrently; thus, Richards's composite sentence is the same 12 months to serve that he received for his felony conviction. This sentence does not exceed 2 years to serve, and it falls within the applicable presumptive range for Richards's felony offense (0 to 2 years).\\nThe remaining question is whether we should proceed to decide the misdemeanor portion of Richards's sentence appeal (%e, the portion over which we have subject-matter jurisdiction. We conclude that we should not.\\nBoth the Alaska Supreme Court and this Court have repeatedly held that when a defendant is sentenced for two or more offenses, Alaska law does not require that each of the defendant's separate sentences be individually justifiable under the Chaney sentencing criteria, as if that sentence had been imposed in isolation. Rather, the question is whether the defendant's combined sentence is justified in light of the entirety of the defendant's conduct and history.\\nBecause of this rule, a defendant is not allowed to pursue a sentence appeal that attacks only a single sentence, or only isolated sentences, from among the entirety of the sentences imposed. An appellate court will not hear a defendant's sentence appeal in a case involving multiple offenses unless the defendant has appealed each of the sentences that contributes to the composite total-so that the court can meaningfully evaluate the whole.\\nThere is, moreover, a substantial possibility that our jurisdiction to review Richards's misdemeanor sentence arises from mere happenstance. As this Court has repeatedly observed, trial court judges who are sentencing offenders for multiple crimes generally do not select particular individual sentences for the defendant's individual crimes. Rather, judges select a composite total, and then they impose individual sentences that add up to that total, often in a fortuitous way.\\nIn Richards's case, Judge Collins imposed a composite 12 months to serve-comprised of 12 months to serve for the felony and a concurrent 6 months to serve for the misdemeanor. But Judge Collins might just as easily have given Richards only a concurrent 3 months to serve for the misdemeanor-in which case, we would clearly lack jurisdiction to review either of Richards's sentences.\\nBecause Richards would not be entitled to appeal his misdemeanor sentence in isolation, and because the propriety of Richards's sentence must be assessed in light of the totality of his conduct and background, we conclude that we should not review Richards's misdemeanor sentence when we have no jurisdiction to review his accompanying felony sentence. Instead, we refer Richards's case to the Alaska Supreme Court under Appellate Rule 215(k).\\nThat is, Richards's attack on his composite sentence must be deemed a petition for discretionary sentence review, and that petition must be decided by the supreme court under Appellate Rules 215(a) and 408(h).\\nConclusion\\nRichards's convictions for third-degree assault and fourth-degree criminal mischief are AFFIRMED, but we lack jurisdiction to decide whether his sentence for these crimes is excessive. That matter is referred to the supreme court.\\n. AS 11.41.220(a)(1)(A) and AS 11.46.484(a)(1), respectively.\\n. See, eg., Rantala v. State, 216 P.3d 550, 562 (Alaska App.2009).\\n. A splitting maul is a hand tool used for splitting wood. One side of its head is shaped like an axe (for penetrating the wood), while the other side of its head is flat like a sledgehammer.\\n. Third-degree assault is a class C felony; see AS 11.41.220(e). The presumptive sentencing ranges for class C felonies are specified in AS 12.55.125(e).\\n. Fourth-degree criminal mischief is a class A misdemeanor; see AS 11.46.484(b). The maximum sentence for a class A misdemeanor is 1 year's imprisonment; AS 12.55.135(a).\\n. The sentencing goals were first enunciated in State v. Chaney, 477 P.2d 441, 443 (Alaska 1970), and are now codified in AS 12.55.005.\\n. Waters v. State, 483 P.2d 199, 202 (Alaska 1971); Custer v. State, 88 P.3d 545, 549 (Alaska App.2004); Jones v. State, 765 P.2d 107, 109 (Alaska App.1988); Comegys v. State, 747 P.2d 554, 558-59 (Alaska App.1987).\\n. Custer, 88 P.3d at 549; Preston v. State, 583 P.2d 787, 788 (Alaska 1978).\\n. See Billum v. State, 151 P.3d 507, 509-510 (Alaska App.2006); Moore v. State, 123 P.3d 1081, 1093-94 (Alaska App.2005); Allain v. State, 810 P.2d 1019, 1022 (Alaska App.1991).\"}"
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+"{\"id\": \"6988447\", \"name\": \"Yvan SAFAR, Appellant, v. WELLS FARGO BANK, N.A., Appellee\", \"name_abbreviation\": \"Safar v. Wells Fargo Bank, N.A.\", \"decision_date\": \"2011-07-15\", \"docket_number\": \"No. S-13710\", \"first_page\": \"1112\", \"last_page\": \"1121\", \"citations\": \"254 P.3d 1112\", \"volume\": \"254\", \"reporter\": \"Pacific Reporter 3d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-11T00:55:45.379433+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before: CARPENETI, Chief Justice, FABE, WINFREE, and STOWERS, Justices.\", \"parties\": \"Yvan SAFAR, Appellant, v. WELLS FARGO BANK, N.A., Appellee.\", \"head_matter\": \"Yvan SAFAR, Appellant, v. WELLS FARGO BANK, N.A., Appellee.\\nNo. S-13710.\\nSupreme Court of Alaska.\\nJuly 15, 2011.\\nHugh G. Wade and Marion C. Kelly, Wade, Kelly & Sullivan, Anchorage, for Appellant.\\nPatrick B. Gilmore, Atkinson, Conway & Gagnon, Inc., Anchorage, for Appellee.\\nBefore: CARPENETI, Chief Justice, FABE, WINFREE, and STOWERS, Justices.\", \"word_count\": \"5423\", \"char_count\": \"33228\", \"text\": \"OPINION\\nSTOWERS, Justice.\\nI. INTRODUCTION\\nIn June 2006 Yvan Safar, a contractor and sole owner and shareholder of Safar Construction, Inc., contracted with developer Per Bjorn-Roli, sole owner and shareholder of Norway Estates, LLC, to construct six units in a 12-unit condominium project in wood for a \\\"not to exceed\\\" price of $2,990,434. Wells Fargo Bank agreed to loan up to $3.3 million to Norway to finance the project. By early May 2007 Norway had paid Safar the entire amount of his contract and Wells Fargo had disbursed the entire loan, but the units were not complete. Safar contends that he offered to use his personal funds to continue to meet payroll until Wells Fargo could devise a solution to the cost overruns, and that Cindy Jobe, a vice president of Wells Fargo who was responsible for disbursing and managing Norway's loan, repeatedly promised that Safar would be reimbursed. Jobe denies making any such promise. Safar continued to work on the project and use his personal funds to make payroll until Wells Fargo initiated foreclosure proceedings in July 2007. Safar sought damages of at least $500,000 for personal funds advanced to continue the project on a theory of promissory estoppel. After trial, the superior court found that Wells Fargo made no enforceable promise to Safar to reimburse him, dismissed Safar's claims with prejudice, and entered judgment for Wells Fargo. Sa-far appeals. We affirm.\\nII. FACTS AND PROCEEDINGS\\nA. Facts\\ni. Parties and project\\nNorway Estates, LLC (\\\"Norway\\\") is an Alaska limited liability company formed and solely owned by Per Bjorn-Roli, a retired insurance company executive. Norway planned to build a 12-unit condominium project in Girdwood (\\\"the Project\\\").\\nYvan Safar, an experienced contractor and sole proprietor, formed Safar Construction, Inc. in September 2006 for the purpose of contracting with Norway to build six of the condominium units. Safar was the sole officer, director, and shareholder of Safar Construction.\\nIn July 2006, Wells Fargo Bank, N.A. (\\\"Wells Fargo\\\") agreed to loan up to $3.3 million to Norway to finance construction of the first six units of the 12-unit condominium project. Bjorn-Roli did not cosign in his individual capacity or personally guarantee payment of the loan. Cindy Jobe, a vice president of Wells Fargo and a \\\"knowledgeable and experienced\\\" loan officer, originated and was responsible for administering the loan.\\nOn June 26, 2006, Safar Construction contracted with Norway to complete the six units by November 20, 2006 on a \\\"cost plus\\\" basis for a \\\"not to exceed\\\" price of $2,990,434. Safar prepared the contract and cost schedules with Bjorn-Roli based on rough estimates from plans that \\\"were not completely detailed\\\" because Safar did not have sufficient time to complete them. Safar hired a bookkeeper, Carol Howerton, as a subcontractor to track costs and do payroll. Safar paid himself wages as an employee of Safar Construction; he received $45 an hour and overtime. Safar also planned to purchase one of the six units for approximately $750,000.\\n2. Construction and overruns\\nSafar did not complete the six units by November 20, 2006, and prospective purchasers began to cancel their reservations. From December 2006 to March 2007, Safar reported to Norway that the project was on budget; Norway made the same reports to Wells Fargo. According to Safar, the project was delayed because of \\\"all kinds of unforeseen problems,\\\" such as municipal digging restrictions, a buried electric cable, foundation problems, and heavy rain and snow. Safar testified that he remained on budget throughout the winter notwithstanding the delays, but by February/March 2007 it became \\\"really obvious\\\" that he was experiencing cost overruns.\\nInitially, Safar believed that he could use the 18% markup included in the construction contract price to cover the overruns. By March 22, 2007, Bjorn-Roli determined that the overruns were at least $700,000, and Safar knew that he would need more money to complete the Project, but neither BJjorn-Roli nor Safar informed Wells Fargo.\\nLater in the spring of 2007, Safar and Bjorn-Roli informed Wells Fargo that Safar was over budget by approximately $100,000; neither Safar nor Bjorn-Roli expressed concern about the overruns, and Bjorn-Roli did not request a loan increase. Wells Fargo honored every draw request submitted by Norway and fully advanced the $8.3 million loan. Safar was out of money by April 20, 2007; he withdrew $10,000 from his personal account to cover payroll on April 20th, but many bills remained unpaid.\\n3. Meetings with Jobe\\nIn late April, Safar and Bjorn-Roli met with Jobe to discuss cost overruns on the Project. They informed Jobe that overruns totaled approximately $250,000, and Jobe asked them to \\\"refine and confirm\\\" the number. When Safar and Bjorn-Roli met with Jobe a second time on May 7, 2007, Safar gave Jobe a written cost estimate of $590,000 to complete the Project but did not disclose that there were unpaid bills. Bjorn-Roli told Safar and Jobe that he was not going to put any of his own money into the Project to cover overruns or pay Safar any more than the contract price of $2.9 million.\\nAccording to Bjorn-Roli, Jobe stated that it would take a \\\"couple more weeks to get some sort of approval to go above the bank loan limit,\\\" and that she would need approval from others at the bank before she could provide additional funds. According to Bjorn-Roli, Safar told Jobe that he could take part of his down payment for the condominium he was planning to purchase to cover payroll if Jobe promised that he would get his money back, and Jobe assured Safar that he would get his money back.\\nAccording to Jobe, she made no promise to reimburse Safar. She testified that the parties discussed releasing some of the funds from the expected closing of Safar's unit to help fund the overruns but that she made no commitments, no agreements were reached on the material terms of such an arrangement, and there was no discussion of Safar's down payment. She also testified that the \\\"resolution\\\" they agreed upon was that Wells Fargo would try to increase Norway's loan by $250,000 to $300,000. According to Jobe, neither Safar nor Bjorn-Roli said anything about not proceeding with construction at the late April or May 7th meetings.\\nSafar testified that he informed Jobe and Bjorn-Roli at the April meeting that he was running out of money and would have to shut down the Project unless they came up with \\\"some solution as far as funds. Safar testified that Bjorn-Roli and Jobe discussed the possibility of using proceeds from the sale of Safar's unit, for which a Certificate of Occupancy\\\" had been issued, to complete the Project. According to Safar and Bjorun-Roli, Safar told Jobe and Bjorn-Roli at the May 7 meeting that Safar Construction had no more funds and would need to stop working if Wells Fargo could not provide any additional funding. Safar testified that \\\"Bjorn-Roli and Vice President Cindy Jobe definitely didn't want to stop the construction\\\" because of two pending sales, so Safar offered to use his own funds to cover payroll for a week until Jobe could find another solution. Safar claims that Jobe made a \\\"direct promise\\\" to him that the personal money he used to cover the payroll would be returned to him.\\nAfter the May 7, 2007 meeting, Bjorn-Roli left for a planned vacation in Europe. When Bjorn-Roli returned to Anchorage, he met with Jobe to discuss possible solutions to overruns; Safar was not present. Jobe proposed loaning Norway an additional $250,000 to $300,000 to be secured by a personal guarantee from Bjorn-Roli, with Bjorn-Roli or Safar to fund any additional sums needed to complete the Project; Bjorn-Roli refused to guarantee any loan personally, and no agreement was reached. According to Jobe, she also suggested the idea of taking a partial payment at the closing of the unit Safar planned to purchase and putting the rest back into the Project, and Bjorn-Roli \\\"was receptive\\\" to the idea. Jobe testified that this never occurred, however, because the bank was \\\"waiting for a unit to close,\\\" which never occurred.\\n4. Post-meeting construction\\nFollowing the May 7 meeting, Safar continued to use his own funds to make payroll for \\\"four to five weeks.\\\" According to Safar, Jobe repeated her promise that he would be reimbursed \\\"week after week\\\" when Safar called Jobe to check on the status of his reimbursement.\\nAccording to Jobe, when Safar called to ask if the bank had reached a resolution, she told Safar that the bank was working on a resolution but never discussed what the reso-Tution might be or made any promises.\\n5. Wells Fargo foreclosure of the Project\\nAt the end of June, Jobe turned over the Norway account to Gerard Diemer in the Credit Management Group at Wells Fargo. On June 28, 2007, Safar's bookkeeper faxed an estimate to Diemer of $446,000 to complete construction on the Project and $529,000 in outstanding payables; 'the total estimated overrun was $975,000. After several meetings with Bjorn-Roli, Wells Fargo decided that no reasonable work-out agreement could be reached and decided to proceed with foreclosure.\\nDiemer visited the Project site in early July and found Safar and his team working. When Diemer discovered that Bjorn-Roli had not informed Safar that he should stop working, Diemer called Bjorn-Roli, informed him that Safar was still working, and handed the phone to Safar so that Bjorn-Roli could tell Safar to stop.\\nSafar informed Diemer that he had a tape recording of Jobe promising him that he would be reimbursed for the money he spent on the project. Diemer conducted an extensive investigation into Safar's allegations and concluded that there was no evidence to sub stantiate any of Safar's claims that Jobe had promised to reimburse him. Safar later admitted to Diemer that he had no recording and that a friend had suggested he \\\"bluff\\\" about the tape to get the bank to reimburse him.\\n6. Safar's mortgage\\nSafar applied for a mortgage with Residential Mortgage in early April 2007. Safar moved into a unit in the Project in early May 2007 and agreed to pay $2,500 in rent to Bjorn-Reoli until his mortgage closed. Residential Mortgage ultimately denied Safar's mortgage. After the foreclosure, Safar refused to vacate the unit. Wells Fargo evicted Safar on May 1, 2008, but agreed to forgive April 2008 rent. Safar therefore owed Wells Fargo $11,917 in past due rent ($2,500 per month from November 7, 2007 to March 31, 2008)\\nB. Proceedings\\nOn August 9, 2007, Wells Fargo filed a Complaint for Appointment of a Receiver Under AS 09.40.240. Norway resisted appointment of a receiver, moved to dismiss the complaint, and filed a counterclaim and third-party complaint against several bank officers. In its counterclaim complaint, Norway asserted 15 claims for relief based on predatory lending practices, breached/repudiated agreements/promises/commitments, fraud, intentional and/or negligent misrepresentations, breached covenant of good faith and fair dealing, estoppel, breach of the Unfair Trade Practices and Consumer Protection Act, interference with prospective economic opportunities and contracts, waste, and defamation. Safar and Safar Construction filed an Answer and Counterclaim in Intervention, asserting direct claims against Wells Fargo based on promissory estoppel, fraudulent misrepresentation, and unjust enrichment. Safar also asserted that he was the equitable owner of the unit he occupied and sought to foreclose a claim of lien in the amount of $310,841.53 for unpaid wages from Safar Construction and personal expenditures for labor and materials that he had filed.\\nOn April 7, 2008, Superior Court Judge Mark Rindner dismissed Safar's claim of equitable ownership or title to his unit, and ruled that Norway's claims against Wells Fargo and its employees be submitted to binding arbitration. The arbitrator rejected all of Norway's claims, finding that there was no contract between Wells Fargo and Norway to loan additional money to Norway. On April 9, 2009, the superior court approved a stipulation between Wells Fargo and Norway by which all of Norway's claims were dismissed and Wells Fargo waived any claim against Norway for costs and fees.\\nSafar's remaining claims against Wells Fargo proceeded to trial on September 1, 2009. Safar conceded that Safar Construction's claim of lien for outstanding wages should be dismissed and limited his claim to damages of \\\"not less than $500,000\\\" for personal funds advanced to pursue completion of the Project made in reliance on Wells Fargo's repeated assurances that he would be reimbursed.\\nOn September 11, 2009, after hearing testimony from Safar, Howerton, Jobe, and Diemer, and considering the depositions of Bjorn-Roli and LaRose (the loan officer at Residential Mortgage who reviewed Safar's loan application), which were admitted into evidence, the trial court issued extensive findings of fact and asked both parties to file memoranda arguing the legal consequences of the findings and to propose conclusions of law. Wells Fargo filed a memorandum and proposed conclusions of law; Safar did not. Safar filed detailed objections to the court's findings of fact, which the trial court overruled without comment. The court issued its conclusions of law on October 12, 2009.\\nThe superior court made three conclusions that are relevant to Safar's appeal: (1) Wells Fargo did not make a binding contractual commitment to pay or reimburse Safar's expenses because Jobe neither made an offer to Safar or Bjorn-Roli nor set forth all material terms of a contract; (2) Wells Fargo did not commit to releasing funds from the closing of Safar's condo purchase because there was no agreement on the material terms of the alleged agreement; and (8) Safar's claim for promissory estoppel was barred because Jobe did not make a definite promise encompassing all the material terms of a contract, and because Safar could not have reasonably relied upon his understanding that there was a \\\"promise\\\" when the promise \\\"did not identify the amount of money to be advanced, the terms of repayment, or even who would be responsible for the repayment.\\\"\\nOn November 2, 2009, the court issued a final judgment dismissing Safar's claims with prejudice and entering judgment for Wells Fargo for unpaid rent in the amount of $11,917 plus interest, costs, and attorney's fees.\\nSafar appeals.\\nIII. STANDARD OF REVIEW\\nWe review the trial court's findings of fact, including those on the credibility of witnesses, for clear error' We will find clear error if, after a thorough review of the record, we come to a \\\"definite and firm conviction that a mistake has been made.\\\" We review factual findings in the light most favorable to the prevailing party below. \\\"[We grant 'particular deference to the trial court's factual findings when they are based primarily on oral testimony, because the trial court, not this court, performs the function of judging the credibility of witnesses and weighing conflicting evidence.\\\" \\\"\\nThere are four elements of a cause of action for promissory estoppel: (1) an \\\"actual promise\\\" that induced action or for-bearancee; (2) the action induced was actually foreseen or reasonably foreseeable; (8) the action amounted to \\\"a substantial change in position\\\"; and (4) enforcement of the promise is necessary in the interest of justice. The only element at issue in this case is whether there was an \\\"actual promise\\\" that induced action or forbearance, which is a question of fact that we review for clear error.\\nIV. DISCUSSION\\nThe central issue raised by Safar on appeal is whether the trial court's findings of fact were clearly erroneous.\\nSafar argues that the trial court clearly erred in: (1) failing to make specific factual findings about conflicting accounts of the May 7 meeting; (2) not finding promissory estoppel on the facts of the case; and (8) finding that Wells Fargo was entitled to costs, interest, and attorney's fees.\\nIn response, Wells Fargo contends that: (1) the trial court determined that Wells Fargo's account of what happened at the May 7 meeting was more credible than Sa-far's account; (2) Safar did not establish the elements of promissory estoppel; and (8) any promise made by Wells Fargo was a conditional promise that was not breached.\\nWe find that the record supports the trial court's findings of fact and conclusions of law.\\nA. The Superior Court's Findings Of Fact Were Neither Incomplete Nor Clearly Erroneous.\\nSafar argues that the trial court dismissed Safar's claim without making any specific findings about the conflicting evidence regarding what was said at the May 7 meeting. He also argues that the trial court did not make specific factual findings on any of the factual issues Safar raised in his trial brief, and that the factual findings the court did make were \\\"problematic.\\\"\\nIn response, Wells Fargo asserts that the court's detailed findings of fact reveal that the court found Wells Fargo's account of what occurred at the May 7 meeting to be more credible than Safar's account.\\nWe hold that the superior court's findings of fact were neither incomplete nor clearly erroneous.\\n1. The trial court did not fail to make specific findings regarding Jobe's alleged promises to Safar.\\nThe superior court made 46 detailed findings of fact, many of which address the conflicting accounts of what Jobe allegedly promised to Safar. Specifically, the court found that Safar did not prove that the parties came to \\\"a meeting of the minds\\\" at the May 7 meeting as to all material terms of a contract to lend, noting that Safar could not articulate the details of any commitment by Jobe or Wells Fargo to reimburse him for expenses he incurred after May 7, such as \\\"the amount of the loan, the terms of repayment, the security, the interest rate, or even if the bank's supposed commitment was a loan or a gift.\\\"\\nThe superior court also explicitly found that Safar did not prove a \\\"promise\\\" to lend with definite terms enforceable under the doctrine of promissory estoppel, or a \\\"binding commitment, definite in all its material terms\\\" to release proceeds of the bank's collateral from the expected closing of Safar's condo. The court further found that, even if Jobe had made a binding commitment, the commitment was not broken because Residential Mortgage did not approve Safar's loan, Safar did not purchase the unit, and \\\"Wells Fargo had no duty to release proceeds from a closing that never occurred.\\\"\\nSafar's assertion that the trial court dismissed his claims without making specific findings about the conflicting evidence regarding Jobe's alleged \\\"promise\\\" is therefore incorrect.\\n2. The trial court's findings of fact regarding Jobe's alleged promises to Sa-far were not clearly erroneous.\\nSafar suggests that any findings of fact the court did make regarding Jobe's alleged promises to Safar were \\\"problematic.\\\" Wells Fargo argues that the trial court's findings regarding the conflicting accounts of what Jobe stated during and after the May 7 meeting illustrate that the trial court found Wells Fargo's version of the facts to be more credible than Safar's version.\\nAlthough the trial court did not make specific credibility findings, it is clear that the trial court found Wells Fargo's witnesses' accounts of what occurred to be more credible than Safar's witnesses' accounts: all 46 findings of fact support Wells Fargo's account of the conversations that occurred between Safar and Jobe. During trial, the superior court articulated why it found Sa-far's account of the meeting problematic:\\n[The whole problem I'm having . is [Safar] almost seems to be saying that the Bank is going to give him this money to pay him off, and I don't believe that for a second occurred, or that if he believed that or thought that, I certainly am having trouble believing that it was reasonable for him to do it.... I'm going to have to resolve this as a credibility question.\\nA review of the record supports the trial court's findings that Jobe did not make any legally enforceable promises to Safar.\\\"\\nB. The Superior Court Did Not Err In Not Finding Promissory Estoppel On The Facts Of The Case.\\nSafar contends that the court committed legal error by not finding promissory estop-pel because all of the elements of promissory estoppel were satisfied.\\nFour elements are needed to prove a claim of promissory estoppel: (1) an \\\"actual promise\\\" that induces action or forbearance; (2) the action is actually foreseen or reasonably foreseeable; (8) the action is a \\\"substantial change in position\\\"; and (4) enforcement of the promise is necessary in the interest of justice. Safar argues that the evidence presented at trial proved all four elements. The superior court found that Safar's claim for promissory estoppel failed because he did not prove the first element, and because his reliance on any alleged statements by Jobe would not have been reasonable.\\nWe conclude that Safar's promissory estoppel claim fails because the record does not support a finding that Jobe made an actual promise to Safar.\\nAn \\\"actual promise\\\" is one that is \\\"definitive, . very clear, . and must use precise language.\\\" To be enforceable under promissory estoppel, a promise must be \\\"analytically identical\\\" to the acceptance of an offer in contract law: it must \\\"manifest an unequivocal intent to be bound.\\\" None of the alleged statements by Jobe to Safar constituted an \\\"actual promise\\\" for promissory estoppel purposes.\\nSafar argues that Jobe's assertion to Safar at the May 7 meeting that \\\"of course\\\" he would be repaid and the \\\"words and conduct\\\" Jobe used to \\\"reinforce\\\" the promise after May 7 constitute an \\\"actual promise.\\\" He cites cases from other jurisdictions in which lenders' assurances to borrowers that they would \\\"support,\\\" \\\"help,\\\" or \\\"work with\\\" borrowers were sufficient \\\"promises\\\" to find that promissory estoppel applied. In contrast to the cases he cites, Safar was not a borrower, Jobe was not authorized to approve loans,\\\" and neither Safar nor Wells Fargo contends that the possibility of Safar applying for or receiving a loan from Wells Fargo was discussed as a potential solution.\\nSafar also argues that a promise \\\"may be simple or complex,\\\" and that Jobe's promise to Safar was simple: if he advanced his personal money for payroll, he would get his money back. He argues that a \\\"general rule of contract\\\" is that contracts may be en-foreed even if the parties have left open \\\"some matters to be determined in the future\\\" by examining the agreement itself or \\\"other usage or custom\\\" that is independent of a party's \\\"mere \\\"wish, will and desire. \\\" He cites Bank of Standish v. Curry, in which the court held that a borrower who went to a bank \\\"for the express purpose of learning whether he would receive financing\\\" could enforce the bank's promise to \\\"continue to support\\\" his business under promissory estoppel because the terms of the promise \\\"could be objectively determined from the nature of the transaction, and the ten-year history of the customary loan practices between the parties.\\\"\\nIn contrast to the situation in Curry, Safar was not Wells Fargo's borrower, he had no history of borrowing from Wells Fargo, and he was not seeking to extend or receive a loan. Thus, there were no prior dealings, usage, or customs from which a definite promise could be gleaned.\\nIn Valdes Fisheries Development Association, Inc. v. Alyeska Pipeline Service Co., we held that a prospective lessee's promise to a prospective lessor that he would receive a lease contract was not enforceable through promissory estoppel because the promise was ambiguous as to the lease duration and price. Similarly, the trial court in this case found that Safar could not articulate the basic terms of any agreement, such as the amount of money that would be advanced, the terms of payment, or who would be responsible for the repayment. The court also found that \\\"Jobe did not make a definite promise as to all the material terms of a contract,\\\" and noted that Safar's own testimony established that \\\"Jobe did not make any binding commitments to Norway and/or Safar.\\\"\\nThe record supports the trial court's findings. When asked at trial about the specifics of Jobe's promise at the May 7 meeting, Safar stated: \\\"I was assured that there would be no problem. . [Jobe] said you will get that money back as soon as the Bank and Bjorn-Roli have, you know, the extension of the loan or whatever terminology they use.\\\" Safar testified that there were not \\\"any specifics discussed about it,\\\" but that he was under the \\\"assumption\\\" that the money would \\\"go directly from the Bank\\\" to him. When asked why he assumed Wells Fargo would pay him directly despite the fact that all Project funds he had received had come from Norway, Safar stated:\\nBecause [Jobe] was repeating it over and over and reassuring me and encouraging me to finish unit three so it can be sold, and since I knew she was the banker dealing with the project, I basically trusted her.... [It was clear to me she was the key person on the project.\\nOn cross-examination, Safar testified that the word \\\"loan\\\" was never used in his discussions with Jobe, and that there were \\\"different terms used, arrangement or whatever they were discussing. How they were going to do it, I don't know. I wasn't privy to that.\\\" Thus, according to Safar's own testimony, the proposed contract was not definitive as to any material terms.\\nBecause none of Jobe's alleged statements were definite as to the amount or terms of Wells Fargo's reimbursement to Safar, we affirm the superior court's finding and conclusion that Jobe did not make any promise or commitment to Safar sufficient to meet the \\\"actual promise\\\" element of promissory estoppel.\\nv. CONCLUSION\\nFor the reasons described above, we AP-FIRM the superior court's judgment and award of damages, costs, and attorney's fees.\\nCHRISTEN, Justice, not participating.\\n. When asked exactly what Jobe said, BjJorn-Roli stated: \\\"She said, of course.... Of course he'd get his money back. And she thought that was a good solution to this dilemma.\\\"\\n. This amount was seen as a sufficient \\\"fix\\\" because Bjorn-Roli had indicated that he could get by with $250,000 to $300,000 in addition to proceeds from the pending sales of two units.\\n. A Certificate of Occupancy is a document issued by the municipality after a building official has inspected a building project and found no violations of any ordinance, plat note, or building or zoning code. See Spinell Homes, Inc. v. Municipality of Anchorage, 78 P.3d 692, 698 (Alaska 2003) (citing 3 Kenner H. Youns, Anperson's American Law or Zoninc \\u00a7 19.03, at 362 (4th ed. 1996).\\n. After Wells Fargo foreclosed on the Project, Safar's rent was owed to Wells Fargo.\\n. AS 45.50.471-561.\\n. Safar earned $22,623.73 in wages for his work on the Project, but he never cashed his payroll checks issued by Safar Construction.\\n. Romero v. Cox, 166 P.3d 4, 7-8 (Alaska 2007) (citing Soules v. Ramstack, 95 P.3d 933, 936-37 (Alaska 2004)).\\n. Id. at 8.\\n. Id. (citing N. Pac. Processors, Inc. v. City & Borough of Yakutat, 113 P.3d 575, 579 (Alaska 2005)).\\n. Wee v. Eggener, 225 P.3d 1120, 1124 (Alaska 2010) (quoting Millette v. Millette, 177 P.3d 258, 261 (Alaska 2008)).\\n. See Alaska Trademark Shellfish, LLC v. State of Alaska, Dep't of Fish & Game, 172 P.3d 764, 766 (Alaska 2007) (quoting Zeman v. Lufthansa German Airlines, 699 P.2d 1274, 1284 (Alaska 1985) (applying Resrarement (SEconp) or Contracts \\u00a7 90 (1979)) (internal quotation marks omitted)).\\n. See Crook v. Mortenson-Neal, 727 P.2d 297, 300 (Alaska 1986) (implying all four elements of promissory estoppel should be reviewed as questions of fact); 4 Ricmarp A. Lorp, Wirtiston on Contracts \\u00a7 8:7, at 152 (4th ed. 2008) (noting that many jurisdictions consider both \\\"the existence and the scope of [an actual 'promise'] to be questions of fact, and [a finding] . that the promise exists [will stand] on appeal unless it is clearly erroneous.\\\").\\n. Safar states: \\\"The single issue in this case is whether a promise was made.\\\" He also argues that the trial court \\\"mischaracterized\\\" his claim by analyzing it under a contract-based theory of recovery. Thus, promissory estoppel is the only legal theory Safar argues on appeal.\\n. Safar also claims that the trial court erroneously failed to find that BJorn-Roli's account of the May 7 meeting, described in a letter BJorn-Roli wrote ten weeks after the meeting, was \\\"substantially accurate.\\\" The trial court's failure to make specific factual findings regarding the accuracy of Bjorn-Roli's letter was not clearly erroneous because the trial court provided more than enough \\\"detailed and explicit findings\\\" to give this court a \\\"clear understanding of the basis\\\" of its decision. Urban Dev. Co. v. Dekreon, 526 P.2d 325, (Alaska 1974) (quoting Alaska R. Civ. P. 52(a)) (internal quotation marks omitted). Although Bjorn-Roli's letter generally corroborates Safar's account of the May 7 meeting, both Bjorn-Roli's and Safar's accounts of Jobe's statements support the superior court's finding that the statements were not sufficiently definite to constitute an \\\"actual promise\\\" under promissory estoppel. See infra Part B. Thus, Bjorn-Roli's corroboration would not have mate rially contradicted the court's ultimate legal determination.\\n. Safar notes that the superior court adopted \\\"nearly all\\\" of Wells Fargo's proposed findings of fact \\\"without edit or comment\\\" but offers no explanation for why he did not submit his own proposed findings of fact. It is not clearly erroneous per se for a trial court to adopt one party's proposed findings of fact. See Indus. Indem. Co. v. Wick, 680 P.2d 1100, 1108 (Alaska 1984) (\\\"A trial court is . entitled to adopt findings and conclusions prepared by counsel, so long as they reflect the court's independent view of the weight of the evidence\\\").\\n. See infra Part B.\\n. Alaska Trademark Shellfish, LLC v. State of Alaska, Dep't of Fish & Game, 172 P.3d 764, 766 (Alaska 2007) (quoting Zeman v. Lufthansa German Airlines, 699 P.2d 1274, 1284 (Alaska 1985) (applying Restatement (SEconp) or Contracts \\u00a7 90 (1979)) (internal quotation marks omitted)).\\n. Id. at 767 (quoting Simpson v. Murkowski, 129 P.3d 435, 442-43 (Alaska 2006)) (internal quotation marks omitted).\\n. Id. (quoting Brady v. State, 965 P.2d 1, 6-11 (Alaska 1998)) (internal quotation marks omitted).\\n. Diemer and Jobe testified that Jobe, as a loan officer, had absolutely no authority to create, approve, or modify a loan without approval from supervisors, and that her alleged promises would be \\\"very much out of line and uncharacteristic\\\" because \\\"it isn't something that can happen.\\\" Diemer testified that it is appropriate and common for loan officers to talk to their borrowers about \\\"things that, together, the borrower and the bank can do to resolve issues . [when borrowers get into trouble,\\\" and that he believed this is what Jobe had done. Although Safar contests the court's finding that Jobe lacked authority and argues that Jobe had \\\"apparent authority\\\" to promise that Safar would be reim bursed, Safar's testimony reveals that he was aware that any \\\"solution\\\" would have to involve Norway and be approved by others at Wells Fargo.\\n. 442 Mich. 76, 500 N.W.2d 104, 110 (1993).\\n. Id. at 111. There is language in Curry that actually supports Judge Rindner's determination that Jobe's alleged promise \\\"did not identify the amount of money to be advanced, the terms of repayment, or even who would be responsible for the repayment.\\\" The Michigan Supreme Court explained: \\\"For a promise to loan money in the future to be sufficiently clear and definite, some evidence must exist of the material terms of the loan, including the amount of the loan, the interest rate, and the method of repayment.\\\" Id. at 113.\\n. 45 P.3d 657, 670 (Alaska 2002).\\n. The fact that Safar and Bjorn-Roli were both aware that Jobe did not have authority to increase the amount of the loan to Norway also supports a finding that Jobe's statements were not an \\\"actual promise.\\\" In Simpson v. Murkowski, 129 P.3d 435, 444 (Alaska 2006), we held that a 1993 letter from Governor Hickel to the Speaker of the House of Representatives was not an \\\"actual promise\\\" because it \\\"expressly noted\\\" that the program the letter proposed was subject to the legislature's approval. Similarly, the superior court's finding that Safar knew Jobe lacked the authority to approve additional funds and Safar's testimony that he understood that Norway would have to be involved in whatever \\\"arrangement\\\" was made to reimburse him support a finding that Jobe's statements were not actual promises.\\n. Because we conclude that Jobe's statements to Safar do not satisfy the first element of promissory estoppel, we need not determine whether any of the other elements of promissory estoppel were met.\"}"
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+"{\"id\": \"6990673\", \"name\": \"Kenneth M. OSTERKAMP, Appellant/Cross-Appellee, v. Kattaryna STILES, Appellee/Cross-Appellant\", \"name_abbreviation\": \"Osterkamp v. Stiles\", \"decision_date\": \"2010-06-25\", \"docket_number\": \"Nos. S-13297, S-13317\", \"first_page\": \"178\", \"last_page\": \"193\", \"citations\": \"235 P.3d 178\", \"volume\": \"235\", \"reporter\": \"Pacific Reporter 3d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-11T00:55:29.668579+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before: CARPENETI, Chief Justice, FABE, WINFREE, and CHRISTEN, Justices.\", \"parties\": \"Kenneth M. OSTERKAMP, Appellant/Cross-Appellee, v. Kattaryna STILES, Appellee/Cross-Appellant.\", \"head_matter\": \"Kenneth M. OSTERKAMP, Appellant/Cross-Appellee, v. Kattaryna STILES, Appellee/Cross-Appellant.\\nNos. S-13297, S-13317.\\nSupreme Court of Alaska.\\nJune 25, 2010.\\nMary A. Gilson and Allison E. Mendel, Mendel & Associates, Anchorage, for Appellant/Cross-Appellee.\\nRobert C. Erwin and Roberta C. Erwin, Robert C. Erwin, LLC, Anchorage, for Ap-pellee/Cross-Appellant.\\nBefore: CARPENETI, Chief Justice, FABE, WINFREE, and CHRISTEN, Justices.\", \"word_count\": \"8448\", \"char_count\": \"52241\", \"text\": \"OPINION\\nCHRISTEN, Justice.\\nI. INTRODUCTION\\nKenneth Osterkamp appeals the award of sole physical and legal custody of Simon Stiles to his adoptive mother, Kattaryna Stiles. Ken and Kattaryna were Simon's foster parents from one week after Simon was born until Kattaryna adopted Simon when he was sixteen months old. Ken and Kattaryna continued to raise Simon together as domestic partners until Simon was twenty months old, at which point Kattaryna separated from Ken. After Kattaryna began limiting Ken's visitation, he filed a complaint for custody and visitation. The superior court denied Ken custody, concluding that he did not meet the substantive requirements for a third party seeking custody over the objection of the legal parent. It concluded that between the time Kattaryna adopted Simon and the time Ken filed suit, Ken had not established psychological parent status. The superior court did not reach the question of whether Ken met the substantive requirements for a third party seeking visitation. We affirm the superior court's award of legal and physical custody to Kattaryna because we agree that Ken did not establish by clear and convincing evidence that awarding sole custody to Kattaryna would be clearly detrimental to Simon; it was not clearly erroneous for the superior court to conclude that at the time Ken filed his complaint he was not Simon's psychological parent. Given the already protracted length of these proceedings, we reach the merits of the visitation issue and conclude that Ken did not prove by clear and convincing evidence that it would be in Simon's best interests for the court to order visitation over Kattaryna's objection.\\nKen also appeals the superior court's ered-it of loan payments to Kattaryna, the award of attorney's fees to Kattaryna, and the issuance of a writ of assistance without proper notice. Kattaryna cross-appeals the superior court's order requiring her to repay money she received from Ken's parents. We affirm the superior court's rulings on property issues and attorney's fees, but conclude that it was error to issue a writ of assistance without providing both parties with proper notice and an opportunity to be heard.\\nII. FACTS AND PROCEEDINGS\\nA. Custody And Visitation\\nKenneth Osterkamp and Kattaryna Stiles met in the spring of 2002 and became romantically involved shortly thereafter. They began living together, first in Kattaryna's apartment and then in a condominium they purchased together in 2008. They bought a home together in late 2004 where they lived until separating in March 2007. Ken and Kattaryna never married, but they considered themselves to be domestic partners.\\nIn 2004 Ken and Kattaryna became foster parents together, successively serving as foster parents to several infants. On September 1, 2005, the Office of Children's Services (OCS) placed Simon with Kattaryna and Ken. Simon was born on August 25, 2005 and is an Indian child under the Indian Child Welfare Act (ICWA)\\nKen and Kattaryna began taking steps to adopt Simon in early 2006, even as they began to experience difficulties in their relationship. They dispute whether they decided to adopt Simon as a couple, although a home study for joint adoption was conducted in spring 2006. Kattaryna claims she always planned to adopt Simon on her own but a social worker advised putting Ken's name on the home study in case they later decided to adopt together. Ken claims that the plan was always for joint adoption and he only agreed to remove his name from the adoption petition after Kattaryna insisted that they wait and see if their relationship improved before including his name. Ken and Kattar-yna agreed that if Ken ultimately did not adopt Simon, he would be like a \\\"beloved uncle\\\" and continue to have a role in Simon's life. Once it was decided that, at least initially, Kattaryna would adopt Simon by herself, a second adoption study was completed taking these changed cireumstances into account. Both adoption studies recommended that the adoption proceed.\\nOn December 28, 2006, the court held an adoption hearing and issued an adoption decree Simon was sixteen months old and had spent all but one week of his life living with Ken and Kattaryna. Ken attended the hearing and did not raise any objections or concerns over his name not appearing on the adoption decree. Nor did he request to reserve any post-adoption rights. After the adoption, Ken, Kattaryna, and Simon continued to live together as a family unit for three months.\\nKattaryna separated from Ken in March 2007 after a heated argument, but she testified that she had been planning to leave for many months. The parties initially agreed Ken would have visitation with Simon but Kattaryna began limiting visitation to once every two or three weeks, with no overnights. Kattaryna also forbade Simon's social worker and daycare providers from referring to Ken as \\\"dad\\\" or \\\"father,\\\" and forbade Ken from doing the same.\\nIn April 2007, Ken filed a complaint for joint legal and physical custody. He elaimed that as Simon's \\\"psychological father\\\" and as someone who had acted in loco parentis for Simon, he had a right to joint custody. Ken also sought an order compelling Kattaryna to consent to his joint adoption of Simon. The superior court ordered interim visitation while the complaint for custody was pending, but Kattaryna retained sole legal and primary physical custody. In response to a motion filed by Ken, the court appointed a custody investigator in June 2007.\\nIn March 2008, eleven months after filing his initial complaint, Ken filed a motion in limine to determine his standing to seek custody or visitation. He asked the court to determine before trial whether he was a psychological parent to Simon. The court partially granted the motion in April 2008, allowing Ken to proceed to trial but deferring until trial the question of whether Ken was Simon's psychological parent.\\nThe custody investigator filed a report in June 2008 explaining that \\\"it is guesswork\\\" to determine whether a person is a psychological parent to a toddler. But because Ken and Kattaryna were Simon's only caregivers during the first nineteen months of his life, the investigator concluded \\\"one can be fairly certain\\\" that Simon had \\\"more or less\\\" equal emotional attachments to each of them. Similarly, a psychological evaluation completed at the request of the custody investigator observed that Simon had positive interactions with both Ken and Kattaryna and that both Ken and Kattaryna demonstrated parental love and affection towards Simon.\\nKen and Kattaryna experienced great difficulty cooperating with each other to implement the court's visitation schedule. Kattar-yna repeatedly expressed to both the custody investigator and psychological evaluator that she no longer wanted Ken in Simon's life. This led to conflict, sometimes in front of Simon.\\nA bench trial was held in early July 2008. The court entered an oral ruling on August 22, 2008 awarding Kattaryna sole legal and physical custody of Simon. Although the superior court found Ken had established psychological parent status by the time of trial, the court ruled that the period from the adoption in December 2006 until the custody suit in April 2007 was the dispositive time period for purposes of assessing Simon's bond with Ken. The court concluded that Ken was not Simon's psychological parent as of the time the parties separated and Ken filed his complaint. The court also concluded that Ken had not shown by clear and convincing evidence that it would be clearly detrimental to Simon to remain in Kattaryna's custody. The court was silent on Ken's claim for visitation rights.\\nAfter the court read its oral ruling into the record, the court, at the suggestion of Kat-taryna's attorney, discussed and issued a writ of assistance to Kattaryna to obtain physical custody of Simon. Because the court had failed to send notice to the parties informing them when the ruling would be read, Ken and his attorney were not present during the discussion or issuance of the writ of assistance; Kattaryna's attorney was present because she noticed the proceeding scheduled on CourtView.\\nIn October 2008 Ken unsuccessfully requested visitation pending appeal. He has had no contact with Simon since August 2008.\\nKen appeals the superior court's denial of custody as well as its failure to determine if he met the substantive requirements for visitation. He also appeals its issuance of a writ of assistance without proper notice.\\nB. Property Issues\\nIn 2004 Ken's parents gave Kattaryna and Ken $44,000 to finance the purchase of their home. Ken's parents issued \\\"gift letters\\\" of $22,000 each to Kattaryna and Ken. These letters purported to require no repayment. Nonetheless, Kattaryna made monthly payments to Ken's parents from October 2005 until February 2007, writing \\\"home loan\\\" on each check. Ken and his mother testified that the expectation was for both $22,000 payments to be paid back, but with no interest and without a deadline for repayment. Kattaryna argued the $22,000 payment was a gift and that her monthly payments were made out of moral obligation only.\\nIn its August 2008 oral ruling, the court found that Ken's parents loaned $44,000 to the parties The court credited Kattaryna $4,200 for payments she had made on her loan and ordered her to repay the remaining $17,800. After accounting for Kattaryna's loan payments, Ken's home improvements, and the amount owing on the mortgage, the court found Kattaryna's share of the home equity to be $50,182, and Ken's share to be $78,883.75. The court ordered that the parties refinance the home to remove Kattaryna from the mortgage obligation, and that they equally share the cost of refinancing.\\nKen appeals the superior court order ered-iting only Kattaryna for payments she made to Ken's parents. Kattaryna cross-appeals the superior court's order requiring that she repay a loan she received from Ken's parents.\\nC. Attorney's Fees\\nIn October 2006 Kattaryna successfully moved for interim attorney's fees under AS 25.24.140(a)(1), which permits interim fee awards in divorcee or dissolution actions. At trial, the court found the interim fee award continued to be justified because Ken was living in the parties' home and had a greater income. Ken appeals the superior court's award of attorney's fees to Kattaryna.\\nIII. STANDARD OF REVIEW\\nThe superior court has \\\"broad discretion in custody awards\\\" We will reverse a superior court's custody and visitation determination \\\"only if the superior court has abused its discretion or if its controlling findings of fact are clearly erroneous. \\\" The superior court abuses its discretion when it \\\"consider{s] improper factors in making its custody determination, fails] to consider statutorily mandated factors, or assign[s] disproportionate weight to particular factors while ignoring others. We review factual findings, including determinations of psychological parent status, for clear error A factual finding is clearly erroneous when a review of the record leaves us with the definite impression that a mistake has been made.\\n\\\"Whether factual findings are sufficient to support an award of custody to a third party is a legal issue to which we apply our independent judgment.\\\" Likewise, \\\"IwJhether the court applied the correct standard in a custody determination is a question of law we review de novo.\\\"\\nInterim attorney's fee awards in divorce-like proceedings are reviewed for abuse of discretion. We will not reverse such an award \\\"unless it is arbitrary, capricious, manifestly unreasonable, or stems from an improper motive.\\\"\\nIV. DISCUSSION\\nA. The Standing Issue\\nPrior to trial, Ken filed a \\\"Motion in Limine to Determine Plaintiffs Standing.\\\" He asked the court to determine, before trial, whether he was \\\"the psychological parent of [Simon].\\\" The superior court did not decide prior to trial whether Ken was Simon's psychological parent; the court ordered that Ken would have to prove his case at trial. Because Kattaryna did not challenge Ken's standing to bring a claim for custody or visitation in her \\\"Partial Opposition to Motion in Limine to Determine Plaintiff's Standing\\\"-she asked only that the court rule that former foster parents like Ken could not establish psychological parent status-the superior court never expressly ruled on the issue of standing. But on cross-appeal before this court, Kattaryna argues that Ken does not have standing to seek post-adoption custody or visitation because any rights he may have had based on his relationship with Simon were terminated when Kattaryna adopted Simon.\\nIn Buness v. Gillen we considered whether a stepparent had standing to seek custody over the objection of the biological parent. We held that \\\"a non-parent who has a significant connection with a child has standing to assert a claim for custody. In Evans v. McTaggart we \\\"question[{ed] whether the significant connection test was intended to be merely another way of expressing psychological parent or in loco par-entis status,\\\" but we declined to \\\"flesh out the meaning of the significant connection test\\\" for standing because the biological father in Evans had not objected to the maternal grandparents' intervention or custody motion on standing grounds. Here, because Kattaryna did not make a \\\"specific negative averment\\\" before the superior court that she \\\"wishe[d] to raise an issue as to the capacity of [Ken] to sue, Kattaryna is precluded from raising an objection to stand ing on appeal.\\nB. The Superior Court Did Not Err By Concluding That Ken Failed To Establish By Clear And Convincing Evidence That Awarding Sole Custody To Kattaryna Would Be Clearly Detrimental To Simon.\\nKen concedes that under AS 25.23.130(a)(2) Kattaryna's adoption of Simon resulted in the legal creation of a parent-child relationship between Simon and Kattar-yuna as if she were Simon's biological parent. We agree; once the adoption decree was finalized on December 28, 2006, Kattary-na became Simon's sole legal parent. Ken's legal relationship to Simon has always been that of a third party, both before and after Kattaryna's adoption of Simon. The question here is whether Ken, as a third party, may obtain custody or visitation against the wishes of Kattaryna, Simon's legal parent.\\nWe previously discussed questions of third party custody and visitation in Evans v. McTaggart. Evans involved a claim by a child's maternal grandparents for custody over the objections of the child's biological parents.\\\" The grandparents also sought visitation with their grandchild's half-sibling who was not biologically related. to them.\\\" The Evans trial court did not find the grandparents to be the psychological parents of either child. Addressing the custody issue in Evans, we stated that:\\nin order to overcome the parental preference [in an initial custody contest between a parent and a non-parent] a non-parent must show by clear and convincing evidence that the parent is unfit or that the welfare of the child requires the child to be in the custody of the non-parent.\\nKen argues that the superior court erred by concluding that he did not meet his evidentia-ry burden for a third party seeking shared custody. The basis of Ken's custody argument is that the \\\"welfare of the child\\\" requires that he continue to have contact with Simon-not that Kattaryna is an unfit parent. Our inquiry therefore focuses on whether Ken was able to meet his evidentia-ry burden to show \\\"that the welfare of the child requires the child to be in the custody of the non-parent.\\\" Kattaryna's fitness as a parent is not in dispute.\\nWe explained the \\\"welfare of the child\\\" component of this analysis in Evans, where we decided that to be awarded custody a \\\"non-parent must show that the child would suffer clear detriment if placed in the custody of the parent.\\\" We clarify that this analysis is not limited to examining the child's relationship with the legal parent; courts may take into account the relationship between a child and a third party in determining whether awarding custody to the legal parent-and denying custody to the third party-would result in clear detriment to the child.\\nThe clear detriment Ken alleges is \\\"the harm [Simon] will experience if his relationship with a psychological parent is ended.\\\" Ken cites to our decisions in Buness v. Gillen and Todd v. Todd in support of this argument. In Buness, we noted that \\\"severing the bond between the psychological parent and the child may well be clearly detrimental to the child's welfare.\\\" In Todd v. Todd, we acknowledged that when a child's \\\"strongest psychological bonding\\\" is with third parties, \\\"it would be detrimental to [the child] to destroy those bonds.\\\"\\nTo determine whether Ken met his eviden-tiary burden to show clear detriment, we first review the superior court's determination that Ken was not Simon's psychological parent at the time he filed suit for custody and visitation. Because Ken's clear detriment argument rests on the assertion that he has at all relevant times been Simon's psychological parent, his argument ends where it begins unless he can demonstrate he was Simon's psychological parent at the relevant time. Second, we review Ken's clear detriment argument in light of our decisions in Buness and Todd.\\n1. The superior court did not err by concluding that Ken was not Simon's psychological parent for purposes of this custody dispute.\\nWe have explained that a psychological parent is:\\none who, on a day-to-day basis, through interaction, companionship, interplay, and mutuality, fulfills the child's psychological needs for an adult. This adult becomes an essential focus of the child's life, for he is not only the source of the fulfillment of the child's physical needs, but also the source of his emotional and psychological needs.\\nThe superior court ruled that Ken did not demonstrate he was Simon's psychological parent during the relevant time period for this custody action. And the court ruled that the relevant time period was from December 28, 2006-when Kattaryna adopted Simon-to April 12, 2007-when Ken filed suit for custody.\\nKen disputes the superior court's decision that these three and a half months constitute the relevant time period for assessing his status as Simon's psychological parent. He argues that the superior court should have made its determination \\\"based on all the evidence\\\"-from the moment Ken became Simon's foster parent in September 2005 until trial in July 2008. Ken further argues that even if the superior court was correct to consider only the interval between the entry of the adoption decree and the filing of the complaint in this action, it was still clearly erroneous to conclude that Ken had not established psychological parent status by the time he filed his complaint for custody. Kat-taryna counters that Ken cannot be Simon's psychological parent because he is a former foster parent whose legal rights were extinguished by his failure to join in Kattaryna's adoption of Simon.\\nThe issue of what time period the court should look to in determining psychological parent status is particularly significant in this case. The superior court found there was insufficient evidence that Ken had established psychological parent status as of the date Ken filed suit for custody, but the superior court's oral findings included the statement that it was \\\"unequivocal that as of the time of trial, July 2008, [Ken] was a psychological parent to [Simon]. * We consider separately the time before Kattaryna adopted Simon and the time after Ken filed his complaint for custody.\\na. The superior court correctly began its analysis at the moment Kattaryna became Simon's sole legal parent.\\nThe superior court concluded that \\\"no rights accrued to [Ken] during the period of his foster parenting . such that the rights of a psychological parent would have developed,\\\" observing that Ken \\\"voluntarily allowed [Kattaryna] to adopt [Simon] in December of 2006.\\\" Ken argues that the superior court erred as a matter of law by not considering the entire time Ken served as Simon's foster parent when it decided whether Ken met his burden of showing psychological parent status. We disagree.\\nThe purpose of an adoption decree is to vest all legal parental rights with the adoptive parent or parents, to the exclusion of all others. The same policy reasons that motivate AS 25.23.180 militate against recognizing a former foster parent's claims for eusto-dy or visitation against the wishes of the adoptive parent based upon psychological bonds established during the period of foster care. Just as the relationship between adoptive parents and adoptive children should be protected from post-adoption disruptions by biological parents who have surrendered children for adoption, it must also be protected against post-adoption disruptions from foster parents or other third parties, particularly when these individuals did not oppose the adoption or seek to reserve any rights under the adoption decree.\\nAllowing Ken to establish psychological parent status based upon time he served as a foster parent is also inconsistent with the basic premise of our foster care and adoption programs. Discussing the related concept of \\\"de facto parent\\\" status, the American Law Institute has cautioned, \\\"[rlelationships with foster parents are . generally excluded . because inclusion of foster parents would undermine the integrity of a state-run system designed to provide temporary, rather than indefinite, care for children.\\\"\\nAscertaining whether a foster parent has attained psychological parent status also presents special difficulties. As we stated in Carter v. Brodrick, the psychological parent is one who \\\"love[s], value[s], appreciate[s], and view[s] as an essential person\\\" the child for whom he or she is caring. A foster parent serves a vital but inherently temporary role in a child's life. The ultimate goal in foster care is for the child to either be returned to the biological parents in appropriate cireumstances or adopted, either by the foster parents or by another third party. The temporary nature of foster care along with the compensation for services associated with it make it more difficult to ascertain whether a foster parent has become a psychological parent or is serving the child's needs in a different capacity.\\nGiven these considerations, we hold that the superior court was correct not to consider the time prior to the entry of the adoption decree for purposes of determining whether Ken was Simon's psychological parent.\\nKattaryna is correct that the time Ken served as Simon's foster parent may not be considered for purposes of establishing psychological parent status, but she is incorrect that Ken is barred from subsequently establishing such status. The adoption decree gave Ken a clean slate upon which to establish psychological parent status. While it made Ken a \\\"stranger\\\" to Simon in the eyes of the law as of the moment of the adoption, in this case that moment was short-lived. Kattaryna and Simon continued living together with Ken after the adoption and the superior court was obliged to evaluate the nature and quality of the relationship that Ken developed with Simon following the entry of the decree.\\nAt least initially, Kattaryna promoted and fostered a relationship between Ken and Simon after the adoption. The custody investigator reported that Kattaryna, Simon, and Ken \\\"still lived together as a family unit\\\" after the adoption, a fact the superior court found significant. The superior court also pointed to a new will Kattaryna drafted in January 2007 as evidence that after the adoption she envisioned Ken \\\"being in [Simon's] life.\\\" The will identified Ken (or Ken's relatives if Ken did not survive Kattaryna) as guardian and conservator of Simon, and left Kattaryna's interest in the parties' house to Ken.\\nGiven Ken's continuing relationship with Simon, encouraged or at least accepted by Kattaryna, the difficult question before the superior court was whether or not Ken established psychological parent status in the period subsequent to the adoption.\\nb. The superior court correctly ended its analysis at the point when Ken filed his complaint for custody.\\nThe superior court concluded that the end of the relevant period for determining psychological parent status was when Ken filed his complaint for custody. Ken argues that the superior court erred as a matter of law by not considering any facts after Ken filed his complaint. We agree with the superior court.\\nThere are important policy reasons why the parental status of parties to custody and visitation cases should be fixed at the time they file suit a third party should not be able to establish psychological parent status against the wishes of the legal parent as a result of court-ordered interim visitation. Interim visitation is meant to help maintain and promote already existing psychological parent-child bonds; it should not be converted into a tool for establishing such bonds. If courts considered the interim period, litigants in Kattaryna's position would have an incentive to withhold or oppose pre-trial visitation, a potentially harmful result to a child genuinely bonded to a third party psychological parent. Conversely, litigants in Ken's position would have an incentive to delay resolution of the case in the hope a psychological parent connection could be established by exercising visitation during the interim period. The latter result could also be harmful to the child, in addition to being contrary to the wishes of the legal parent. For these reasons, we hold that in third party custody or visitation actions, the relevant point in time for establishing psychological parent status is the time when a complaint for eusto-dy or visitation is filed.\\nIt was not clearly erroneous for the superior court to decide that Ken failed to establish psychological parent status during the relevant time period.\\nThe superior court \\\"did not find [Ken] to be the psychological parent of [Simon], between the time of the adoption on December 28, 2006 and the date [Ken] filed the Petition for Custody on April 12, 2007.\\\" The court based its conclusion on three primary considerations. First, it concluded that the time period between the adoption and Ken's custody complaint-about three and a half months-was simply too short to establish psychological parent status. Second, it pointed to Simon's very young age at the time of separation-between nineteen and twenty months-as a factor weighing against establishing psychological parent status. Finally, the court emphasized the importance of the fact that Ken voluntarily agreed to let Kattaryna adopt Simon alone just three and a half months before filing his complaint for joint custody. We review a finding of psychological parent status for clear error.\\nThe superior court did not clearly err when it found that three to four months is not long enough to establish psychological parent status, particularly given Simon's young age. As the custody investigator stated, \\\"until a child is old enough to say 'she's my mom and he's my dad, it is guesswork to figure out who [the child] views as his psychological parent(s).\\\" Furthermore, even though there is disputed evidence in the record suggesting it was Ken's intention to eventually adopt Simon, the superior court did not err when it considered Ken's decision not to adopt Simon when he may have had the chance to do so as weighing against his claim. We do not find the superior court's decision that Ken failed to establish psychological parent status at the time he filed suit for custody to be clearly erroneous. We do not accept Ken's invitation to reconsider whether a psychological parent seeking custody or visitation over the objections of a legal parent should be held to a different substantive standard or evidentiary burden than another third party seeking similar rights.\\n2. Buness and Todd are distinguishable from this case.\\nKen argues that Buness v. Gillen and Todd v. Todd support his argument that it will be clearly detrimental to Simon if his bond with Ken is broken. We do not find either decision to be inconsistent with the superior court's ruling. 'The third party relationships that were at issue in Buness and Todd are both distinguishable from Ken's relationship with Simon. Most prominently, the third party relationships with the children in Buness and Todd were significantly longer than the relationship between Ken and Simon. In Buness, the third party seeking custody had been the child's stepfather and \\\"primary care-giver and father figure\\\" for ten years. In Todd, the child's grandparents sought custody and they had been the child's primary caregivers for about seven years Ken's entire relationship with Simon was only twenty months in duration when he filed suit for custody, and only three and a half of those months post-dated the adoption decree. Another important distinction is that the children in Buness and Todd were significantly older than Simon; the third parties in Buness and Todd had raised the children in those cases throughout much of their childhood. In contrast, Simon was still a toddler when Ken filed suit for custody.\\nIn light of these considerations, we do not find that the superior court was clearly erroneous in concluding that Ken failed to demonstrate by clear and convincing evidence that it would be clearly detrimental to Simon if Ken was not awarded custody.\\nC. Ken Did Not Prove By Clear And Convincing Evidence That It Would Be In Simon's Best Interest To Order Visitation Over Kattaryna's Objection.\\nThe superior court did not rule on Ken's request for third party visitation, which was argued by the parties below. Because this case already has a protracted history, because the parties need finality, and because Ken presented his case for visitation to the superior court, we resolve Ken's claim for visitation on the merits rather than remand for further proceedings. We held in Evans that to obtain visitation over the objection of a legal parent, a third party must show by clear and convincing evidence that visitation is in the child's best interests. This heightened burden of proof reflects our long-standing custodial preference for parents over non-parents.\\nIn Evans, we noted the statement from the plurality in the United States Supreme Court's decision Troxel v. Granville that special weight must be given to a fit parent's determination as to the desirability of visitation with third parties. We concluded that a presumption of parental fitness to determine what is in a child's best interests could be ensured by requiring that a third party prove \\\"by clear and convincing evidence\\\" that such visitation \\\"is in the best interests of the child.\\\" The result of establishing this heightened standard, we concluded, was to \\\"provide effective protection for a parent's choice, except where the choice is plainly contrary to a child's best interests.\\\"\\nIn this case, Kattaryna has repeatedly expressed her preference that Ken no longer have a role in Simon's life. She has actively told others that they are forbidden to refer to Ken as Simon's father. The psychological evaluator noted in a follow up report prepared shortly before trial that \\\"[i]t remains clear, as it was at the time of my original evaluation, that Kattaryna wants Ken out of [Simon's] life.\\\"\\nThis is a difficult case and it is a close question whether it would be in Simon's best interests to order visitation with Ken over Kattaryna's fervent objections. On one hand, there is evidence in the record of a close and loving relationship between Simon and Ken as of the time of trial. On the other, both the custody investigator and the psychological evaluator acknowledged Simon could be harmed by continued exposure to the toxic relationship between Ken and Kat-taryna. Ultimately, Ken's inability to es tablish psychological parent status once again undercuts his chief argument-that removing Ken from Simon's life would be detrimental to Simon. We also disagree with Ken regarding the weight to be given to Kattary-na's unwillingness to foster his relationship with Simon; special consideration must be given to a fit parent's determination regarding the desirability of visitation with third parties. Having considered the evidence presented at trial, we find that Ken did not meet his burden to prove by clear and convincing evidence that Kattaryna's preference that he no longer have a relationship with Simon is plainly contrary to the child's best interests.\\nD. The Superior Court Did Not Err By Requiring Kattaryna To Repay A Loan From Ken's Parents Or By Not Crediting Her Loan Payments To Both Parties.\\nOn eross-appeal, Kattaryna argues the superior court erred in finding that Ken's parents loaned $22,000 to Kattaryna and $22,000 to Ken. She argues the parties called and treated the payments \\\"gifts.\\\" Ken disagrees and also argues the court erred by not crediting Kattaryna's loan payments to both parties.\\nThere is a rebuttable presumption that transfers of funds between close relatives are not actual debts. We review the superior court's characterization of such transfers of funds as \\\"loans\\\" or \\\"gifts\\\" for clear error.\\nThere is conflicting evidence as to whether the transfer of funds from Ken's parents were loans or simply gifts. Ken's parents issued \\\"gift letters\\\" stating \\\"[nlo repayment of this gift is expected or implied either in the form of cash or by future services of the recipient,\\\" and Kattaryna testified she made payments out of a moral obligation only. Ken's mother testified the payments were interest-free and without a specific payment term, but that the payments were loans, and that the \\\"gift\\\" part of the transaction was making the loans interest-free and not requiring a specific payment term or schedule. She also testified they made similar loans to Ken's siblings, and the record contains documents showing payments made on those loans. Kattaryna made sixteen payments to Ken's parents, generally in installments of $250, and wrote \\\"home loan\\\" on her checks. Ken testified the payments from his parents were loans and that Kattaryna's installments were payments made on behalf of both of them because he was paying the mortgage.\\nThe presumption that transfers of funds between close relatives are not actual debts is rebutted in this case by weightier evidence that the money from Ken's parents was intended to be repaid. We conclude that the court did not clearly err in finding the payments from Ken's parents were legally enforceable loans.\\nWe also conclude the superior court did not clearly err by crediting Kattar-yna for the loan payments she made, and by not crediting Ken for the mortgage payments. \\\"[PJroperty accumulated during cohabitation should be divided by determining the express or implied intent of the parties.\\\" Although Ken testified that Kattar-yna made payments on the parents' loans for both of them because he was paying the mortgage, the record shows the loans were made to Kattaryna and Ken individually. The record also supports the superior court's factual finding that the parties intended Ken to pay the mortgage, and that Kattaryna would pay utilities and incidentals because Ken had a higher income. The court's property division was in accord with the parties' intentions, as reflected in the record.\\nE. The Superior Court Did Not Err By Granting Kattaryna Interim Attorney's Fees.\\nKen argues on appeal that the superior court abused its discretion when it ordered him to pay Kattaryna interim attorney's fees. He argues the court made no findings to support this decision and claims that the fact he has lived in the house throughout the litigation does not support awarding Kattaryna interim attorney's fees.\\nThe court reduced its original award of interim fees from $10,000 to $5,000, finding the award justified because Ken had a greater income and occupied the home-the parties' \\\"largest and only significant equity\\\"throughout the action.\\n\\\"[In actions between unmarried couples that resemble divorcee proceedings the rules governing the award of attorney's fees in divorce cases will be applied.\\\" In such cases, \\\"an award of costs and fees is based on the relative economic situations and earning powers of the parties.\\\" The purpose of such awards is to ensure the parties can litigate on a \\\"fairly equal plane. 'We review an interim attorney's fee award in divorce-like proceedings for abuse of discretion and will not reverse the award \\\"unless it is arbitrary, capricious, manifestly unreasonable, or stems from an improper motive.\\\"\\nHere, the court did not abuse its discretion in awarding Kattaryna $5,000 in fees. Contrary to Ken's assertion, the court made findings and its findings were relevant to the determination. It considered the parties' respective incomes and other sources of equity, including Ken's continued possession of the house, the parties' sole significant asset. The record supports these findings. The court's findings were not clearly erroneous, it considered appropriate factors, and the award was not arbitrary, capricious, or manifestly unjust.\\nF. The Superior Court Should Have Provided Notice To Ken Before Issuing A Writ Of Assistance To Kat-taryna.\\nKen contends the superior court's communication with opposing counsel following its oral ruling and its issuance of a writ of assistance outside of his presence was error.\\nThe purpose of the court's proceedings on August 22, 2008 was to issue the court's oral ruling on record. While no notice was sent to counsel, the date for the decision on the record appeared on the CourtView calendar, which both parties could access. Kattaryna's counsel saw the date on CourtView and attended. Ken and his counsel did not have notice and they were not present. There is no evidence that the court intended to address the issue of a writ of assistance at these proceedings-this issue came up when Kattaryna's counsel asked if the court was going to issue an order for the return of Simon. But the court ended up granting Kattaryna's request for a writ of assistance without providing an opportunity for Ken to be heard. Ken is correct that the writ of assistance should not have been issued under these cireumstances. As Ken notes, however, \\\"the damage has been done.\\\" Ken did not request additional relief.\\nIV. CONCLUSION\\nFor the reasons stated above, with the exception of the court's issuance of a writ of assistance, the decisions of the superior court are AFFIRMED.\\nEASTAUGH, Justice, not participating.\\n. This opinion uses a pseudonym to protect the minor's privacy.\\n. 25 U.S.C. \\u00a7 1903(4) (2006).\\n. Simon's biological mother's parental rights were terminated and his biological father voluntarily relinquished his parental rights. The tribes with which Simon is affiliated received notice of the adoption hearing and filed no objection; the court found good cause to deviate from ICWA's placement preferences.\\n. CourtView is the trial court's electronic, online docketing and calendaring system.\\n. The superior court observed that the total loan amount was actually $48,000, but found that only $44,000 was related to the home. Because it did not find that the remaining $4,000 was related to the home, it did not include this amount in its calculations. Neither party appeals this decision.\\n. In re Adoption of Missy M., 133 P.3d 645, 648 (Alaska 2006) (quoting Elton H. v. Naomi R., 119 P.3d 969, 973 (Alaska 2005)) (internal quotation marks omitted).\\n. R.I. v. C.C., 9 P.3d 274, 277 (Alaska 2000) (internal citations omitted); see also Skinner v. Hagberg, 183 P.3d 486, 489 (Alaska 2008) (reviewing visitation orders for abuse of discretion) (citing Lone Wolf v. Lone Wolf, 741 P.2d 1187, 1190 (Alaska 1987)).\\n. In re Missy M., 133 P.3d at 648 (quoting Fardig v. Fardig, 56 P.34 9, 11 (Alaska 2002)).\\n. Kinnard v. Kinnard, 43 P.3d 150, 153 (Alaska 2002).\\n. In re Missy M., 133 P.3d at 648.\\n. J.W. v. R.J., 951 P.2d 1206, 1209 (Alaska 1998) (citing R.R. v. State, 919 P.2d 754, 755 n. 1 (Alaska 1996)), overruled on other grounds by Evans v. McTaggart, 88 P.3d 1078, 1085 n. 34 (Alaska 2004).\\n. Elton H. v. Naomi R., 119 P.3d 969, 973 (Alaska 2005) (quoting Moeller-Prokosch v. Prokosch, 27 P.3d 314, 316 (Alaska 2001)).\\n. See Koller v. Reft, 71 P.3d 800, 808 (Alaska 2003).\\n. See id. (quoting Zimin v. Zimin, 837 P.2d 118, 124 (Alaska 1992)) (internal quotation marks omitted).\\n. 781 P.2d 985, 986 (Alaska 1989), overruled on other grounds by Evans, 88 P.3d at 1085 n. 34 (Alaska 2004).\\n. Id. at 988.\\n. Evans, 88 P.3d at 1082. We recognize that the statement in Evans questioning the relationship between the significant connection test and psychological parent status caused confusion. To clarify, a third party need not prove psychological parent status in order to have standing to bring a claim for custody or visitation. As we suggested in Evans, establishing psychological parent status \\\"is more demanding than the 'significant connection' status that a third party must have in order to seek custody.\\\" Id. \\\"Significant connection\\\" status is a threshold question; it relates to whether a third party has standing to assert a claim for custody or visitation. Buness, 781 P.2d at 988. Psychological parent status does not entfifle a third party to custody or visitation, but this status can help a third party prove that it would be clearly detrimental to a child to deny third party custody, or that it would be in the child's best interests to grant visitation to a third party. See, eg., id. at 989 n. 8.\\n. Brown v. Music Inc., 359 P.2d 295, 300-01 (Alaska 1961). The \\\"failure to raise the issue of capacity to sue below results in a waiver of that defense.\\\" Moore v. State, Dep't of Natural Res., 992 P.2d 576, 577 n. 5 (Alaska 1999); see also Jackson v. Nangle, 677 P.2d 242, 250 n. 10 (Alaska 1984); King v. Petroleum Servs. Corp., 536 P.2d 116, 118 (Alaska 1975).\\n. Questions of standing should be raised and decided during the initial stages of litigation. Given the emotional burden custody and visitation litigation places on children and litigants, trial courts should resolve issues of standing as early as possible in the pre-trial phase of litigation.\\n. In relevant part, AS 25.23.130(a)(2) provides: (a) A final decree of adoption . has the following effect . (2) to create the relationship of parent and child between petitioner and the adopted person, as if the adopted person were a legitimate blood descendant of the petitioner, for all purposes....\\n. 88 P.3d 1078, 1079 (Alaska 2004).\\n. Id. at 1081.\\n. Id. at 1087.\\n. Id. at 1082.\\n. Id. at 1085.\\n. Evans, 88 P.3d at 1085.\\n. Id.\\n. See J.W. v. R.J., 951 P.2d 1206, 1211 (Alaska 1998) (\\\"[The court may take the relationship [between a child and a third party] into account, however, in deciding whether awarding custody to the biological parent would be detrimental to the child.\\\"), overruled on other grounds by Evans v. McTaggart, 88 P.3d 1078, 1085 n. 34 (Alaska 2004).\\n. 781 P.2d 985, 989 (Alaska 1989).\\n. 989 P.2d 141, 143 (Alaska 1999).\\n. Evans, 88 P.3d at 1082 (quoting Carter v. Brodrick, 644 P.2d 850, 853 n. 2 (Alaska 1982)).\\n. The superior court made conflicting statements about whether it considered the time of suit or the time of separation to be the relevant point for determining psychological parent status. We conclude that although the superior court treated these events somewhat interchangeably, it ultimately decided that the date Ken filed his complaint for custody was the relevant date for purposes of determining his psychological parent status.\\n. The superior court's written findings of fact and conclusions of law only state that (1) the court did not find Ken to be the psychological parent of Simon between the time of adoption and the date he petitioned for custody; and (2) Ken is not the psychological parent of Simon.\\n. Because Ken argues psychological parent status to meet the \\\"clear detriment\\\" requirement in his claim for third party custody, the evidentiary burden he must meet to establish this status is \\\"clear and convincing evidence.\\\" Evans, 88 P.3d at 1085 (holding that \\\"a heightened standard of proof is appropriate in initial custody contests between parents and non-parents,\\\" and 'that the heightened standard should be a clear and convincing evidence standard.\\\").\\n. See AS 25.23.4130. There is a spousal exception for instances where a stepparent who is married to the natural parent adopts the natural parent's child. Id.\\n. ALI Principles of the Law of Family Dissolution \\u00a7 2.03 comment cif).\\n. 644 P.2d $50, 853 n. 2 (Alaska 1982).\\n. See, eg., In re Adoption of S.K.L.H., 204 P.3d 320, 326 n. 23 (Alaska 2009) (\\\"AS 25.23.130(a) clearly provides, however harshly, that the final [adoption] decree has the effect of making an adopted child a 'stranger' to the former relatives.\\\") (internal citations omitted).\\n. Ken points to our ruling in Evans to support his argument that the superior court should have made its determination on psychological status based on his entire history with Simon up to the time of trial,. In Evans, we vacated an award of custody and visitation to the grandparents of two half-brothers, ordering that if on remand the grandparents' visitation and custody could not be sustained on previously-admitted evidence, the superior court was to hold an evidentiary hearing to get updated facts. 88 P.3d 1078, 1091 (Alaska 2004). The issue in Evans was not the nature of the grandparents' relationship to the children-the superior court held they had not established psychological parent status, Id. at 1082-the issue was the ability of the children's biological parents to meet the children's physical, emotional and intellectual needs. Id. at 1080. The question of parental fitness or home environment is often an evolving assessment. If a parent has gone from being fit to unfit or the home environment has deteriorated over the course of litigation, a superior court may consider these changed circumstances when determining custody or visitation.\\n. Kinnard v. Kinnard, 43 P.3d 150, 153 (Alaska 2002).\\n. The American Law Institute standard for establishing \\\"de facto parent\\\" status requires that a person live with a child for \\\"a significant period of time not less than two years.\\\" ALI Principles of Family Dissolution \\u00a7 2.03, comment c(iv). We do not establish any minimum length of time for establishing psychological parent status, but we do agree with the ALI that [tlhe length of time that constitutes a significant period will depend on many circumstances, including the age of the child, the frequency of contact, and the intensity of the relationship.\\\" Id.\\n. 781 P.2d 985, 989 (Alaska 1989).\\n. 989 P.2d 141, 145 (Alaska 1999).\\n. 781 P.2d at 989.\\n. 989 P.2d at 145.\\n. Ken's argument that remand is necessary on the issue of clear detriment because it is not possible to discern the basis of the superior court's decision also fails Because we affirm the superior court's finding that Ken did not establish psychological parent status during the relevant period, and psychological parent status is Ken's sole argument for establishing clear detriment, remand is not appropriate.\\n. See, eg., In re Estate of Johnson, 119 P.3d 425, 436 n. 43 (Alaska 2005) (\\\"Due to the lengthy delays in this case, we are reluctant to remand the case for further proceedings.\\\"); State v. Kenaitze Indian Tribe, 83 P.3d 1060, 1071 (Alaska 2004) (\\\"[Gliven the long delays in this litigation . we are reluctant to remand to the superior court to carry out the same review that we have already conducted. We therefore think it is better in this case for us to consider the merits of whether the regulation is invalid, rather than remand to the superior court, with the potential for further appeals.\\\").\\n. Evans v. McTaggart, 88 P.3d 1078, 1089 (Alaska 2004).\\n. See, eg., Turner v. Pannick, 540 P.2d 1051, 1055 (Alaska 1975) (stating that \\\"parental custody [is] preferable and only to be refused where clearly detrimenial to the child\\\"); see also Kinnard v. Kinnard, 43 P.3d 150, 154 (Alaska 2002) (\\\"Even in custody disputes between parents and stepparents, the best interests standard is rejected in favor of the Turner parental preference.\\\"); J.W. v. R.J., 951 P.2d 1206 (Alaska 1998) (applying the parental preference principle established in Turner to a custody dispute between a legal parent and a stepparent who had established psychological parent status).\\n. Evans, 88 P.3d at 1089 (citing Troxel v. Granville, 530 U.S. 57, 70, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000)).\\n. Id. We also found that visitation could be ordered over the objection of a legal parent if the court found by clear and convincing evidence that the parent was unfit to make visitation decisions. Id. at 1090. Ken has not alleged that Kattaryna is unfit to make visitation decisions, so we need not consider this here.\\n. Id. at 1089.\\n. As the custody investigator concluded, \\\"Jf [Kattaryna] is unable to accept [Ken] as [Simon's] father, then any kind of custody/visitation schedule has the great potential to create a horrific existence for [Simon] as he's the object of a lifetime of conflict between [Ken] and [Kattary-nal.\\\" Even Ken admitted to the psychological evaluator that \\\"he has seriously considered bow ing out of [Simon's] life if it is determined that Kattaryna would be unable to cooperate with him in coparenting [Simon],\\\" although \\\"he loves [Simon] and does not want to do this.\\\"\\n. We consider \\\"the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child\\\" in a custody dispute between two parents. AS 25.24.150(c)(6) But this is not a dispute between two parents. Consistent with our opinion in Evans, the parental preference may only be overcome if it is determined, by clear and convincing evidence, that it would be in the best interests of the child to award third party visitation.\\n. Ware v. Ware, 161 P.3d 1188, 1192 (Alaska 2007) (quoting Dixon v. Bradsher, 779 S.W.2d 727, 732 (Mo.App.1989)); Fortson v. Fortson, 131 P.3d 451, 462 n. 34 (Alaska 2006) (citing Charles C. Marvel, Annotation, Unexplained Gratuitous Transfer of Property From One Relative to Another as Raising Presumption of Gift, 94 A.L.R.3d 608 (1979); 59 AmJur2p Parent and Child \\u00a7 92 (2002)).\\n. See Fortson, 131 P.3d at 461 (upholding finding that loans from former wife's parents were not legally enforceable}.\\n. See id. at 462 (\\\"'The trial court is the factfin-der, and given the evidence in the record supporting its decision [that payments from the former wife's parents were gifts], we cannot say that its finding that the loans were not marital debts was clearly erroneous.\\\").\\n. The superior court found the parties intended to own the house equally, although it recognized the payments had been unequal. It credited Ken for home improvements. It ordered the parties to refinance and to split those costs equally. It concluded that ultimately, Ken would be entitled to $78,883.75 in equity and Kattaryna to $50,132 (taking into account the improvement credit to Ken and the debt to his parents), less half the refinancing costs.\\n. Bishop v. Clark, 54 P.3d 804, 811 (Alaska 2002) (quoting Wood v. Collins, 812 P.2d 951, 956 (Alaska 1991)).\\n. Id. at 813 (citing Bergstrom v. Lindback, 779 P.2d 1235, 1238 (Alaska 1989)). AS 25.24.140(a) permits a court to award interim attorney's fees to a spouse.\\n. Bergstrom, 779 P.2d at 1238 (citing L.L.M. v. P.M., 754 P.2d 262, 263-64 (Alaska 1988)).\\n. Sanders v. Barth, 12 P.3d 766, 769 (Alaska 2000) (citing Lone Wolf v. Lone Wolf, 741 P.2d 1187, 1192 (Alaska 1987)).\\n. Koller v. Reft, 71 P.3d 800, 808 (Alaska 2003) (citing Zimin v. Zimin, 837 P.2d 118, 124 (Alaska 1992)).\"}"
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+"{\"id\": \"6992622\", \"name\": \"Grant T. RODERER, M.D. and Advanced Pain Centers of Alaska, Inc., Appellants, v. Deborah DASH, Appellee\", \"name_abbreviation\": \"Roderer v. Dash\", \"decision_date\": \"2010-07-02\", \"docket_number\": \"No. S-13106\", \"first_page\": \"1101\", \"last_page\": \"1114\", \"citations\": \"233 P.3d 1101\", \"volume\": \"233\", \"reporter\": \"Pacific Reporter 3d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T17:00:00.689269+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before: CARPENETI, Chief Justice, WINFREE, and CHRISTEN, Justices.\", \"parties\": \"Grant T. RODERER, M.D. and Advanced Pain Centers of Alaska, Inc., Appellants, v. Deborah DASH, Appellee.\", \"head_matter\": \"Grant T. RODERER, M.D. and Advanced Pain Centers of Alaska, Inc., Appellants, v. Deborah DASH, Appellee.\\nNo. S-13106.\\nSupreme Court of Alaska.\\nJuly 2, 2010.\\nMatthew K. Peterson and Linda Johnson, Clapp, Peterson, Van Flein, Tiemessen & Thorsness, Anchorage, and Sanford M. Gibbs, Brown, Waller & Gibbs, P.C., Anchorage, for Appellants.\\nGeorge M. Kapolehok, Kapolehok Law Offices, Anchorage, and Cheryl Mandala and Matthew Singer, Jermain Dunnagan & Owens, P.C., Anchorage, for Appellee.\\nBefore: CARPENETI, Chief Justice, WINFREE, and CHRISTEN, Justices.\", \"word_count\": \"7381\", \"char_count\": \"45253\", \"text\": \"OPINION\\nCHRISTEN, Justice.\\nI. INTRODUCTION\\nDeborah Dash brought a medical malpractice claim against Dr. Grant Roderer based on a procedure he performed to relieve her back pain. A jury awarded Dash roughly $1.4 million in compensatory damages. The superior court awarded Dash costs under Alaska Civil Rule 79 and attorney's fees under Alaska Civil Rule 68. Dr. Roderer appeals from the denial of his motions to dismiss, for judgment notwithstanding the verdict, and for a new trial. He also appeals the order awarding fees and costs. We affirm the superior court's denial of these motions and the court's award of costs, and conclude that the court's fee award was invited error.\\nII. FACTS AND PROCEEDINGS\\nA. Dash's Pain And Treatment\\nDash began experiencing pain in her back, right hip, knee, and foot in early 2001. She managed her pain using a combination of over-the-counter drugs and Vicodin.\\nDash first saw Dr. Roderer, of Advanced Pain Centers of Alaska (APCA), in August of 2002. Dr. Roderer's first treatment of Dash involved injecting steroids into her spine. These treatments began in August 2002 and continued for several months, but did not provide sufficient relief. Dr. Roderer then performed a discogram -an invasive diagnostic procedure-on October 22, 2002. The procedure revealed problems with three of Dash's discs. Dr. Roderer and Dash discussed the results of the discogram and the possibility of Intradiscal ElectroThermal Therapy (IDET) as a treatment. Dash agreed to undergo the IDET procedure and Dr. Roderer performed it at Providence Hospital on three of Dash's spinal dises. The IDET procedure involves insertion of a small, wire-like heating element into a disc. The element is then heated to roughly 194 degrees Fahrenheit. Dash testified that she was unconscious during the procedure except for a brief period when she was roused by \\\"insane pain.\\\" The procedure left Dash initially unable to walk. Roughly two weeks after the procedure, Dash's medication was no longer sufficient to manage her pain and her husband persuaded Dr. Roderer's office to prescribe an alternative-apparently Oxy-Contin. About a month after the procedure, Dash successfully transitioned from using a wheelchair to using a walker.\\nDash was evaluated by Dr. Onorato, a neurologist, on March 7, 2008. Dr. Onorato had been treating Dash for migraines and another nerve condition for several years. Dr. Onorato diagnosed nerve damage at \\\"L5-S1\\\" that affected Dash's ability to use her left leg.\\nDash moved to Idaho in March of 2008. At that point she began receiving treatment through the Idaho Pain Center.\\nB. The Dashes File Suit\\nDash and her husband, David Dash, filed suit against Dr. Roderer and APCA on December 14, 2004. They alleged that the IDET caused nerve damage which led to increased pain, decreased mobility, and decreased quality of life for Dash. They alleged that Dr. Roderer failed to exercise the degree of skill and care necessary to perform the IDET properly, and failed to obtain Dash's informed consent to the procedure. They also alleged that David Dash suffered damages from loss of society and loss of consortium.\\nC. The Dashes' Offer Of Judgment\\nOn July 28, 2006 the Dashes conveyed a settlement offer pursuant to Rule 68. The document offered \\\"to allow judgment to be entered against defendants Grant T. Roderer, M.D., and Advanced Pain Centers of Alaska, Inc., in the amount of $450,000.00 inclusive of costs, pre-judgment interest, and attorney fees, in complete satisfaction of plaintiffs' claims.\\\" The document was signed by the Dashes' attorney's secretary \\\"for and with permission of\\\" the attorney. The offer was not accepted.\\nIn October 2006 counsel for the Dashes and Dr. Roderer stipulated to dismiss David Dash as a party to the case. This stipulation was approved by the superior court in November 2006.\\nD. Expert Report Issue\\nDr. Roderer moved to dismiss the plaintiff's complaint on October 27, 2006 because Dash had failed to file an expert report by the court's August 10, 2006 pre-trial deadline. Dash's attorney filed an opposition, along with a \\\"working draft\\\" of the report of Dash's expert, Dr. Eric Boyd. Dr. Roderer replied to Dash's opposition with a \\\"Notice of Continuing Non-Compliance and Request for Ruling\\\" in which he questioned the authenticity of the \\\"working draft.\\\" In response, Dash's attorney explained that he, not Dr. Boyd, had authored the \\\"working draft,\\\" and asked the court for a continuance so that an adequate expert report could be obtained. The superior court granted the continuance and denied the motion to dismiss but ordered that Dash pay Dr. Roderer's attorney's fees incurred because of the delay. The court also ordered that Dash's attorney pay a $2,500 sanction, that no further continuances would be allowed, and that failure to abide by the court's order would result in dismissal of the action. A final version of Dash's expert report was later produced.\\nE. Trial And Verdict\\nTrial was held before a jury beginning June 25, 2007. The jury heard testimony from medical experts for both parties. Dr. Roderer moved for a directed verdict at the close of evidence, arguing that there was not sufficient evidence to support a finding that Dash suffered a severe permanent impairment. The motion was denied as to the alleged injury at L6-S1 but granted as to injuries at other locations.\\nThe jury found that Dr. Roderer was negligent in treating Dash, that he failed to get her informed consent before performing the IDET procedure, that these failings were legal causes of harm to Dash, and that Dash \\\"suffers from one or more severe permanent physical impairments.\\\" The jury awarded Dash $1,404,618 in compensatory damages for past and future economic and non-economic losses.\\nDr. Roderer moved for relief from the verdict under three alternative theories: (1) judgment notwithstanding the verdict, based on the argument that the preparation of Dash's expert report violated the civil rules and warranted dismissal; (2) a new trial, either on the merits or limited to damages, based on the argument that Dash had not introduced sufficient evidence and the jury's award was a product of \\\"passion and/or prejudice\\\"; and (8) remittitur, based on the argument that the jury's award of damages was not adequately supported by the evidence. All of these motions were denied.\\nF. Award Of Attorney's Fees\\nOn July 9, 2007 Dash filed a motion for entry of final judgment to include prejudgment interest and attorney's fees. Because the amount the jury awarded was greater than the Rule 68 settlement offer, Dash argued that she was entitled to an award of fifty percent of her \\\"reasonable actual\\\" attorney's fees under Rule 68. She measured her reasonable actual attorney's fees as the amount she was obligated to pay under her attorney's contingent fee agreement: forty percent of her total gross recovery if the case went to trial. Dash requested an award of attorney's fees in the amount of fifty percent of the amount of fees owed under the contin-geney fee agreement, or $819,654.87.\\nDr. Roderer opposed the motion for fees. He argued that the purported Rule 68 offer of judgment was invalid for three reasons: (1) it was made to two defendants; (2) it was made by two plaintiffs; and (8) it was signed by Dash's attorney's secretary, not Dash's attorney. Dr. Roderer also demanded that Dash's attorney \\\"submit an accounting of time and services performed and his hourly rate\\\" to allow Dr. Roderer to challenge time spent on improper projects, such as writing the \\\"working draft\\\" of Dr. Boyd's expert report.\\nIn response, Dash argued that the settlement offer was valid and that Rule 68 did not require an itemized billing record in the circumstances of this case. Dash explained that her \\\"actual fees will be 40% of the total gross recovery. These fees are reasonable and in fact standard. Plaintiff lawyers do not keep track of their time for billing purposes.\\\"\\nThe superior court rejected Dr. Roderer's arguments, initially ordering him to pay fifty percent of the fees owed under the contin-geney agreement. But Dr. Roderer argued that the court should reduce the attorney's fee award to avoid compensating Dash for work her attorney did before serving the offer of judgment. Dr. Roderer argued that of the hours billed by his attorney, only seventy percent were incurred after the offer was made and that unless Dash's attorney could show a different pattern of work, Dash's attorney's fees should be reduced by at least thirty percent. Dash agreed to that reduction and the superior court awarded attorney's fees accordingly.\\nG. Award Of Costs\\nDash moved for costs under Rule 79 and included an itemized cost bill. Dr. Roderer opposed, arguing that the court should strike the motion because it was not signed by Dash's attorney. The opposition compared copies of the signature that appeared on the request for costs against the signature that appeared on an earlier affidavit of Dash's attorney. Though both signatures are in Dash's attorney's name, the two signatures are not similar. Dr. Roderer argued that Dash's attorney had not personally signed the motion for costs, and that this posed two problems: (1) Alaska Civil Rule 11 requires that pleadings, motions and other papers filed on behalf of a represented party must be signed by an attorney; and (2) Rule 79 requires that the request for costs must be itemized and verified, imposing an independent requirement that Dash's attorney personally review and sign the motion. Dr. Roderer also questioned certain entries in the bill, asked that Dash be required to produce receipts, and requested that the charges be reviewed by the clerk of court.\\nThe superior court did not strike the motion for costs, referring it instead to the clerk \\\"for determination.\\\" The court denied Dr. Roderer's motions for post-trial relief from the jury's verdict and entered final judgment. Dr. Roderer appeals.\\nIII. STANDARD OF REVIEW\\nWe review a trial court's imposition of discovery sanctions for abuse of discretion. When reviewing a denial of a motion for judgment notwithstanding the verdict, we \\\"review the record in a light most favorable to [sustaining the verdict], and reverse only if reasonable and fair-minded persons would invariably have found\\\" other than the jury found.\\nWhen reviewing an order denying a motion for a new trial, we will affirm \\\"if there is an evidentiary basis for the jury's decision,\\\" and will only reverse \\\"if the evidence supporting the verdict was so completely lacking or slight and unconvincing as to make the verdict plainly unreasonable and unjust.\\\"\\nWe review awards of attorney's fees for abuse of discretion and will reverse \\\"if the award is arbitrary, capricious, manifestly unreasonable, or improperly motivated.\\\" We review the interpretation of the civil rules authorizing fee awards de novo.\\nIV. DISCUSSION\\nA. The Superior Court's Refusal To Dismiss Dash's Case As A Discovery Sanction Was Not An Abuse Of Discretion.\\nDr. Roderer argues that the superior court erred by denying his pre-trial motion to dismiss. Dr. Roderer argued that Dash's complaint should have been dismissed when her attorney authored the \\\"working draft\\\" of her expert's report and filed it with the court. We conclude the superior court did not err when it denied Dr. Roderer's motion to dismiss.\\nDr. Roderer moved for dismissal because Dash failed to timely file an expert witness report. To avoid dismissal, Dash filed a \\\"working draft\\\" of Dash's expert witness's report. The document was unsigned and it was on blank paper rather than letterhead. The pleading that accompanied it did not disclose that the working draft was the work product of Dash's counsel. It stated: \\\"The report . is not signed by Dr. Boyd, but this is being accomplished.\\\" Upon learning that Dash's attorney authored the document, Dr. Roderer argued that Dash's case should be dismissed with prejudice. The superior court determined that Dr. Roderer's motion to dismiss was in fact a motion for summary judgment, denied the motion, granted a continuance of the trial date, and sanctioned Dash's attorney. The superior court explained that:\\n[elffectively, this [mJjotion to [dlismiss is really a motion for litigation-ending sance-tions for violation of this court's discovery orders; namely, the deadline for filing expert reports. Alaska Civil Rule 37(b)(8)(E) provides that if a party willfully violates a court order to provide discovery, the court may dismiss a claim or defense.\\nCiting the preference for addressing the merits of a case, the court declined to impose litigation-ending sanctions, but did impose \\\"significant sanctions.\\\" The court ordered Dash to pay Dr. Roderer \\\"all costs associated with the continuance,\\\" sanctioned Dash's attorney $2,500, and warned that further failure to comply with the court's discovery orders would result in \\\"dismissal of this case.\\\"\\n\\\"A superior court's imposition of sanctions under Alaska Rule of Civil Procedure 87(b) for a party's failure to comply with a discovery order is . reviewed for abuse of discretion.\\\" A decision constitutes abuse of discretion if it is \\\"arbitrary, capricious, manifestly unreasonable, or . stems from an improper motive.\\\"\\nWe have explained that \\\"the sanction of dismissal is only allowed in extreme cases because a party should not be barred from his or her day in court where an alternative remedy would suffice to make the adverse party whole.\\\" In other cases we have closely scrutinized the imposition of litigation-ending sanctions, explaining:\\nBecause of the extreme nature of dismissal . before a case is dismissed the trial court must first find (1) that the noncomplying party acted willfully to violate the order in question, (2) that there is resulting prejudice to the opposing party, and (8) that the imposed dismissal is sufficiently related to the violation at issue. In addition, the court must consider a reasonable exploration of alternatives to dismissal and whether those alternatives would adequately protect the opposing party as well as deter other discovery violations.[ ]\\nThe superior court took the situation seriously, recognizing that \\\"[this is a case where litigation-ending sanctions may be appropriate,\\\" but because the court was able to devise alternative sanctions that would \\\"alleviate . the monetary prejudice to the defendants,\\\" the court concluded that \\\"significant sanctions, short of litigation-ending sanctions, are warranted here.\\\"\\nIt is well settled that the superior court has wide discretion in imposing sanctions for violation of its discovery orders. In this case, it is not clear that dismissal was required to \\\"adequately protect the opposing party as well as deter other discovery violations,\\\" and we do not otherwise find the superior court's decision arbitrary, capricious, or manifestly unreasonable. The superior court's decision was a conscious, measured response to the discovery violation. We do not believe the superior court abused its discretion when it sanctioned Dash's attorney and denied Dr. Roderer's motion to dismiss.\\nAfter the verdict, Dr. Roderer sought judgment notwithstanding the verdict on the same basis as his earlier motion to dismiss-Dash's failure to file a timely expert witness report and the working draft filed with the court. The motion for judgment notwithstanding the verdict expanded on this argument with information acquired from the expert in discovery. For the reasons already discussed, we find that the superior court's denial of this motion was not an abuse of its discretion and we decline to overturn it.\\nB. Dr. Roderer Is Not Entitled To Judgment Notwithstanding The Verdict.\\nDr. Roderer argues on appeal that the jury's verdict cannot stand because Dash failed to present sufficient evidence to allow the jury to find all of the elements of Dash's negligence claim. Dr. Roderer made two motions for a directed verdict during trial, but neither was on this ground.\\nAlaska Civil Rule 50(b) provides that judgment notwithstanding the verdict may be entered only \\\"in accordance with [a previously entered] motion for a directed verdict.\\\" Dr. Roderer's first motion for directed verdict was made before the close of evidence, and the superior court reserved judgment on it. The second, made after the close of evidence, made two arguments: (1) Dash did not present sufficient evidence to support a finding of \\\"severe permanent physical impairment;\\\" and (2) Dash did not present evidence to support an argument that the procedure Dr. Roderer performed injured Dash in locations other than \\\"L6-S1.\\\" Dr. Roderer did not seek a directed verdiet on the ground that Dash had not presented sufficient expert witness testimony to support jury findings on standard of care, breach, or causation.\\nWe have explained that \\\"[wlhere a party fails to move for a directed verdict at the close of the evidence, a superior court's refusal to grant a judgment n.o.v. cannot be considered on appeal.\\\" Dr. Roderer's failure to move for a directed verdict on the grounds he now asserts would have precluded him from moving for judgment notwithstanding the verdict on those grounds before the superior court. His failure to make this argument in the trial court precludes him from making it on appeal.\\nC. Dr. Roderer Is Not Entitled To A New Trial.\\nDr. Roderer argues that the superior court should have granted his post-verdiet motion for a new trial. In this motion, Dr. Roderer argued that: (1) a jury instruction wrongly created an \\\"irrefutable presumption\\\" of a breach of duty; and (2) Dash failed to present sufficient expert testimony to sustain a verdict on negligence. Dash argues that the jury instruction challenge is waived, that the challenge itself is without merit, and that the jury's finding on informed consent renders moot the claim that there was insufficient evidence to support the negligence claim. We agree with Dash on each of these points.\\n1. The jury instructions do not support Dr. Roderer's request for a new trial.\\nDr. Roderer argues that the jury's verdict should be vacated because jury instruction 25.1 probably led the jury to believe that Dr. Roderer's inability to produce Dash's consent form or additional photographs documenting the IDET procedure was sufficient grounds for imposing liability on Dr. Roderer. Dash argues that Dr. Roderer waived this argument by failing to articulate it distinctly before the instructions were given. We agree that the objection was waived, but also consider the merits of the argument and find that giving the instruction was not reversible error.\\ni. The objection Dr. Roderer raises on appeal was not raised at trial.\\nAlaska Civil Rule 51(a) bars a party from arguing on appeal that a jury instruction was improper unless the party \\\"objects thereto before the jury retires . stating distinctly the matter to which the party objects and the grounds of the objection.\\\" We have explained that the rule \\\"is intended to ensure that a trial judge is clearly made aware of the precise nature of the alleged error,\\\" and we have interpreted this rule to require a relatively specific articulation, before the trial court, of the same argument raised on appeal.\\nIn Van Huff v. Sohio Alaska Petroleum Co., an employee suing for wrongful termination objected to an instruction that would have immunized the employer if the termination was for a \\\"legitimate business purpose.\\\" The employee argued at trial that the instruction should explain that the business purpose had to be reasonable; but on appeal, the employee argued that the instruction should have defined \\\"legitimate business purpose.\\\" We declined to consider this argument on appeal, finding it to be \\\"entirely different\\\" from that raised at trial. Similarly, in Hout v. NANA Commercial Catering, a plaintiff alleging employment discrimination objected to jury instructions on the grounds that they placed too heavy a burden on the plaintiff. On appeal, Hout argued that the instructions were flawed because they were \\\"not based on the principles advanced by the United States Supreme Court in McDonnell Douglas Corp. v. Green,\\\" a federal employment discrimination case articulating the burden-shifting rules now commonly applied in such cases. We held that this argument was waived for failure to articulate it at trial:\\nThe issue is not properly before this court because Hout failed to submit to the trial court instructions that were patterned after the McDonnell Douglas decision and did not object to the court's proposed instructions on this ground. She objected generally to the instructions, saying they placed on her a heavy burden, but she did not distinctly state the grounds of her objection or suggest corrective language consistent with MeDonnell Douglas principles.[ ]\\nDash offered jury instruction 25.1, and Dr. Roderer objected to it. But the cireum- stances of Dr. Roderer's objections to jury instruction 25.1 are similar to those in Hout. As it was initially proposed, jury instruction 25.1 contained two paragraphs. The first read: \\\"A physician is required to make and keep records of his patients' treatment.\\\" The second paragraph referred to a specific record Dr. Roderer had not produced. Dr. Roderer's counsel objected to identifying the specific record, calling it \\\"argumentative.\\\" The superior court removed the second paragraph and asked Dr. Roderer if he objected to the remaining sentence, \\\"A physician is required to make and keep records of his patient's treatment.\\\" Dr. Roderer's counsel responded:\\nWell, I'd still object to that because it's not-there's not a factual issue for them to decide relating to that one way or the other, and so I would object to that in its entirety but it's-I think it's substantially [im]proved by taking out that second paragraph but I-just for the record, I object to the whole instruction.\\nThe court gave the single-sentence instruction to the jury.\\nOn appeal, Dr. Roderer contends that this instruction may have caused the jury to believe that Dr. Roderer could be held liable for failure to obtain informed consent on the basis of the record missing from Dash's patient file. But this argument was not specifically raised before the superior court. Had it been, the superior court could have evaluated whether to add further instructions to clarify that liability for failure to obtain informed consent requires more than proof that Dr. Roderer failed to keep his records properly. As it is, in accordance with the standard for waiver applied in Hout and Van Huff, we find this argument waived. .\\nii. Giving jury instruction 25.1 was not plain error.\\nAbsent a specific objection at trial that complies with Rule 51(a), we \\\"will not review [a] jury instruction unless the giving of the challenged instruction was plain error. Plain error will be found when an obvious mistake exists such that the jury instruction creates a high likelihood that the jury will follow an erroneous theory resulting in a miscarriage of justice.\\\" Dr. Roderer argues that jury instruction 25.1, while generally \\\"a correct statement\\\" of the law, was incorrect in this instance and should not have been given because it may have led the jury to apply an erroneous theory of liability. Specifically, he argues that the jury might have concluded that Dr. Roderer should be found liable for Dash's injuries because some of Dash's medical records were missing from her file. Dr. Roderer asserts that the instruction may have led the jury to believe that the mere fact that some of Dash's medical records were missing, by itself, established that he was negligent or had not obtained informed consent. There was no argument presented at trial along the lines Dr. Roderer suggests.\\nThe special verdiet form required that the jury separately determine whether Dr. Ro-derer (1) was negligent, (2) failed to obtain Dash's informed consent, and, if so, whether each failure was a legal cause of harm to Dash. The jury answered yes to each of these questions. A review of the jury instructions explaining negligence and informed consent refutes Dr. Roderer's argument. The only instruction purporting to define negligence, instruction 11, defined negligence as \\\"the failure to meet the standard of care\\\"; it explained that the jury must \\\"determine the standard of care only on the basis of [the] opinions offered by [the doctors] who have testified as expert witnesses on the standard of care.\\\" Thus, the jury had no basis to conclude that the failure to keep adequate records, without more, constituted negligence.\\nEven if the jury did find that Dr. Roderer's failure to keep records breached his duty of care, they were instructed that to impose liability based on negligence they had to also find that the negligence was a legal cause of the harm Dash suffered. Dr. Roderer has not suggested how the conclusion that the failure to keep adequate records constituted negligence was reasonably possible under the facts of this case, and it is improbable that the jury imposed liability on this basis.\\nIt is also unlikely that the instruction affected the jury's finding on informed consent. Dr. Roderer's concern seems to be that the jury might have used instruction 25.1 as a basis from which to infer that Dr. Roderer's failure to produce a record of informed consent meant that he failed to obtain informed consent. But the jury had strong evidence before them supporting plaintiff's informed consent claim. The jury heard the Dashes testify about what they were and were not told about the risks of the procedure and their testimony amply supports the jury's finding that Dash did not give informed consent. For example, Dash testified that Dr. Roderer claimed to have performed hundreds of IDET's but he later admitted that Dash's procedure \\\"may have been\\\" the first three-level IDET he had ever performed. Dash also testified she was never told that the procedure might result in nerve damage. Dr. Roderer testified that he typically obtains a written acknowledgment of informed consent, that he did so here, that he typically sends a copy to Providence Hospital when the procedure will be performed there, but that he could not locate a copy of the consent form he asserts Dash signed before undergoing the IDET. Considering this evidence, we do not find merit in Dr. Roderer's contention that jury instruction 25.1 \\\"created a high likelihood\\\" that the jury followed an erroneous theory. We conclude that giving jury instruction 25.1 was not plain error.\\n2. The jury's finding on informed consent renders moot any failure of evidence on the negligence claim.\\nDr. Roderer argues that Dash's expert testimony was not sufficient to allow the jury to find each of the elements of negli-genee. Dash counters that even if the expert testimony was insufficient to support the jury's finding that Dr. Roderer negligently performed the IDET procedure, the jury's finding that Dr. Roderer failed to obtain Dash's informed consent is sufficient to sustain the jury's award. We agree with Dash. The informed consent finding was not challenged by Dr. Roderer on appeal and it independently supports the jury's liability finding. For this reason, we do not reach Dr. Roderer's argument regarding the sufficiency of the evidence supporting the negligence claim.\\nD. The Rule 68 Offer Was Valid And The Method Used To Calculate Fees Was Invited Error.\\nDr. Roderer argues that the award of attorney's fees under Rule 68 should be vacated for three reasons: (1) Rule 68 was not applicable because Dash's settlement offer was not signed by Dash's attorney; (2) the offer did not trigger Rule 68 because it \\\"was not inclusive of [all] the relationships of the parties\\\" and presented apportionment problems; and (8) the award amount was improperly calculated because the superior court relied upon Dash's contingency fee agreement and did not require itemization of the hours her attorney worked. We conclude that the Rule 68 offer was valid. Though the method used to calculate attorney's fees was incorrect, we conclude that the erroneous calculation was invited error. We affirm the award of attorney's fees.\\n1. The Dashes' attorney was not required to sign the offer.\\nDr. Roderer argues that the Dashes' offer of judgment did not trigger Rule 68 because it was signed by the Dashes' attorney's secretary \\\"for and with permission of\\\" the attorney, rather than by the attorney himself. The superior court agreed that Rule 11's signature requirement applied to the offer of judgment, but concluded that it was \\\"within the discretion of the court to strike the [o]ffer of [JJudgment,\\\" and declined to do so. We conclude that the offer of judgment did not violate Rule 11.\\nIn pertinent part, Rule 11 states:\\nEvery pleading, motion and other paper of a party represented by an attorney shall be signed by at least one attorney of record in the attorney's individual name.... The signature of an attorney or party constitutes a certificate by the signer that the signer has read the pleading, motion, or other paper; that to the best of the signer's knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless expense in the cost of litigation. If a pleading, motion, or other paper is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the pleader or movant.[ ]\\nDr. Roderer cites no authority to support his contention that a Rule 68 offer of judgment is subject to Rule 11's signature requirement, and we have never addressed this issue. The Dashes' Rule 68 offer of judgment was addressed to and served on Dr. Roderer's attorney, as is typical when issuing such offers. Offers of judgment are filed with the court only upon acceptance or, if rejected, in conjunction with post-trial motions for fees. Here, the offer of judgment was submitted to the court as an attachment to Dash's July 9, 2007 Motion for Entry of Final Judgment, Award of Prejudgment Interest, and Award of Attorney Fees. The motion was signed by counsel. This filing satisfied the requirements of Rule 11.\\n2. The multiplicity of parties and claims did not prevent the offer from triggering Rule 68.\\nDr. Roderer argues that the Dashes offer did not trigger Rule 68 because it was \\\"not inclusive of the relationships of the parties\\\" and presented apportionment problems. Dr. Roderer argues: (1) because \\\"David Dash had an independent claim\\\" that was \\\"distinct and separate\\\" from Deborah Dash's claim, the offer of judgment did \\\"not meet the test for joint offers set by this court in John's Heating Service v. Lamb\\\"; and (2) because \\\"there were two separate and distinct claims brought against Dr. Roderer and Advanced Pain Centers, apportionment would have been difficult.\\\"\\nThe test for whether a multi-party offer of settlement triggers Rule 68 is described in John's Heating Service v. Lamb. In that case, we held that an offer will trigger the rule if;: (1) \\\"the offer was inclusive of all the relationships among the parties and their conflicting claims,\\\" which means that the \\\"settlement offer clearly indicated all claims between the parties would be resolved if the offer were accepted\\\" and (2) \\\"no apportion, ment difficulty existed.\\\" The superior court addressed Dr. Roderer's claim that the John's Heating test was not met, rejecting it with little explanation. The question whether a settlement offer triggers Rule 68 is a legal one that this court reviews de novo.\\nThe Dashes offered to accept a certain sum of money \\\"in complete satisfaction of plaintiffs' claims.\\\" This language \\\"clearly indicated\\\" that if the offer was accepted, \\\"all claims between the parties would be resolved.\\\" The claims against APCA were based solely on respondeat superior. We have not addressed this particular application of respondeat superior before, but we do not find that it presents an apportionment problem given the facts of this case. None of the parties ever contended that APCA was exposed to liability for any reason other than via the doctrine of respondeat superior. We have consistently held that settlement offers do not trigger Rule 68 if they would leave unresolved serious disputes that, absent settlement, would have to be resolved by a jury, but we conclude under the cireum-stances of this case that the Dashes' offer did not present an apportionment problem.\\n3. The superior court's calculation of Rule 68 fees was invited error.\\nDr. Roderer argues that the superi- or court erred when it calculated Dash's attorney's fee award. Rule 68 authorizes trial courts to award a percentage of a party's \\\"reasonable actual attorney's fees incurred by the offeror [of an offer of judgment] from the date the offer was made....\\\" Dash's attorney represented her pursuant to a written fee agreement that called for forty percent of Dash's \\\"total gross recovery.\\\" The court accepted the amount of fees Dash owed her attorney under their contingent fee agreement as her total \\\"reasonable, actual fees\\\" and used defense counsel's hourly time records to approximate the fees she incurred after the date of the Rule 68 offer of judgment. Dr. Roderer argued that fees under Rule 68 cannot be based on a contingency fee and requested that Dash's attorney provide itemized bills.\\nIn Marron v. Stromstad, we addressed a request for itemization in conjunction with a Rule 68 motion for fees and held that, \\\"where the rule authorizes reasonable actual fees, a court may not award attorney's fees to a party who has not itemized his or her requested fees, when the opposing party has requested such itemization.\\\" Dash's counsel did not keep track of the hours he actually worked on the case, but the superior court accepted the contingency fee award as a measure of plaintiff's \\\"reasonable, actual fees.\\\" Dr. Roderer's counsel then argued that even if itemized bills could not be produced, Dr. Roderer should only be responsible for the portion of the contingency fee reflecting work performed after the July 28, 2006 offer of judgment. Dr. Roderer's counsel argued to the superior court that:\\n[Dash's] attorney did not keep track of his time, which is why [Dash] does not want to provide her attorney's actual time spent. [Dr. Roderer's] attorney did keep track of his time, and believes that it is a reasonable estimate of fees in this instance.... [RJloughly 80% of [Dr. Roderer's attorney's] time on the case was prior to the offer of judgment, and 70% after offer through trial.... [Alt a minimum, [Dr. Roderer] should only be responsible for . 70% of one half of the contingency fee....\\nAs we acknowledged in Marron, a superior court may not award attorney's fees \\\"based only on an estimate of what fee amount [is] reasonable.\\\" Though we have never suggested that Rule 68 is limited to cases where the fee-seeking party is obliged to pay his or her attorney by the hour, the percentage of total hours worked by Dr. Roderer's attorney after July 28, 2006 cannot be described as Dash's counsel's \\\"reasonable, actual fees\\\" during the same time period. The superior court's reliance on Dr. Roderer's attorney's time records to measure the number of hours Dash's counsel worked was error. But this method of calculation was suggested by Dr. Roderer. Invited error \\\"occurs when the court takes erroneous action at the express request of [a party], and then [that party] urges reversal on that basis on appeal.\\\" \\\"When an error is invited, an appellate court examines the error to see if there is an 'exceptional situation' where reversal is necessary to preserve the integrity of the judicial process or to prevent a miscarriage of justice.\\\" In our view, the facts of this case do not rise to this level. The integrity of the judicial process was not threatened by the superior court's use of Dr. Roderer's proposed estimate of attorney's fees where Dr. Roderer agreed that this was \\\"reasonable\\\" and the court had no basis to conclude otherwise. Though the trial court erred by adopting this method of calculating Dash's fees, reversal of the award of attorney's fees is not necessary under the doctrine of invited error. We therefore affirm the superior court's award of fees.\\nE. The Award Of Costs Was Proper.\\nDr. Roderer argues that the superi- or court should have struck Dash's request for costs because it was not signed by Dash's attorney. The request for costs was signed in Dash's attorney's name, but Dr. Roderer argued-and the superior court agreed-that the signature did not resemble the one typically used by Dash's attorney. Dash's attorney filed an affidavit asserting that the signature was his own and the superior court refused to strike the request for costs. The court noted that (1) Dash's attorney stated that the signature was his own in an affidavit, and (2) the remedy for an unsigned doeument under Rule 11 would be to require the attorney to sign the pleading. The superior court ordered that \\\"in this case (and in other cases in which [the attorney] is before this judge) [the attorney] use only one signature for all documents he signs and files with the court, and it should be the one that is filed with the Complaint or Answer.\\\"\\nWe review a superior court's refusal to strike a pleading under Rule 11 for abuse of discretion. Because the attorney affirmed, in a signed affidavit, that the signature on the contested document was his own, we find that the superior court did not abuse its discretion by failing to strike the pleading. We find no error in the trial court's award of costs.\\nv. CONCLUSION\\nWe AFFIRM the superior court's denial of Dr. Roderer's motions to dismiss, for judgment notwithstanding the verdict, and for a new trial. We also AFFIRM the court's award of fees and costs.\\nFABE and EASTAUGH, Justices, not participating.\\n. At trial, the terms \\\"discogram\\\" and \\\"discography\\\" were used interchangeably.\\n. \\\"L5-S1\\\" designates a particular disc in the spinal column. The IDET procedure Dr. Roderer performed on Dash involved treatment of three discs; one of them was the L5-S1 disc.\\n. Dash's claims against APCA were asserted only via the doctrine of respondeat superior; the parties treated the two defendants as a single entity for purposes of this case. This opinion refers to the defendants as \\\"Dr. Roderer\\\" for simplicity.\\n. Dr. Roderer also argued that there was no evidence the IDET procedure injured Dash's spine at locations other than L5-S1. This part of the motion was not opposed. Dash's theory at trial was that the L5-S1 injury caused all of the loss for which she sought compensation.\\n. Dash's attorney calculated that the jury's award of damages plus interest totalled $1,598,274.35. 40% of this total is $639,309.72.\\n. Rule 68 only authorizes enhanced attorney's fee awards for fees incurred after an offer of judgment is made. Alaska R. Civ. P. 68(b).\\n. Keen v. Ruddy, 784 P.2d 653, 658 (Alaska 1989).\\n. Poulin v. Zartman, 542 P.2d 251, 273 (Alaska 1975) (citing City of Fairbanks v. Nesbett, 432 P.2d 607, 609-10 (Alaska 1967)), overruled on other grounds by State v. Alex, 646 P.2d 203, 208 n. 4 (Alaska 1982).\\n. Hogg v. Raven Contractors, Inc., 134 P.3d 349, 352 (Alaska 2006) (quoting Glamann v. Kirk, 29 P.3d 255, 259 (Alaska 2001)) (internal quotation marks omitted).\\n. Id.\\n. Rhodes v. Erion, 189 P.3d 1051, 1053 (Alaska 2008) (quoting Kellis v. Crites, 20 P.3d 1112, 11i3 (Alaska 2001)) (internal quotation marks omitted).\\n. Marron v. Stromstad, 123 P.3d 992, 998 (Alaska 2005) (citing Glamann, 29 P.3d at 259).\\n. Roughly one month after Dr. Roderer's motion to dismiss was converted into a motion for summary judgment and denied, Dr. Roderer filed a \\\"Notice of Withdrawal of Defendants' Summary Judgment Without Prejudice.\\\" Dash argues that Dr. Roderer waived his argument regarding the expert witness report because he withdrew his motion for summary judgment and failed to renew it. But the court denied the summary judgment motion on February 7, 2007; the \\\"notice of withdrawal\\\" was therefore without effect. Further, Dr. Roderer renewed the underlying argument in his motion for judgment notwithstanding the verdict. The superior court addressed the claim on the merits, holding that 'it was appropriate both then and now to have denied dismissal of the case.\\\" Dr. Roderer did not waive this issue.\\n. Lee v. State, 141 P.3d 342, 347 (Alaska 2006) (citing DeNardo v. ABC Inc. RVs Motorhomes, 51 P.3d 919, 922 (Alaska 2002)).\\n. Shea v. State, Dep't of Admin., Div. of Ret. and Benefits, 204 P.3d 1023, 1026 (Alaska 2009) (quoting Dobrova v. State, Dep't of Revenue, Child Support Servs. Div., 171 P.3d 152, 156 (Alaska 2007)).\\n. DeNardo, 51 P.3d at 922 (quoting Hughes v. Bobich, 875 P.2d 749, 752 (Alaska 1994)) (internal quotation marks omitted).\\n. See, eg., id. at 922-27.\\n. Id. at 922-23 (citing Alaska R. Civ. P. 37(b)(3); Hughes, 875 P.2d at 753).\\n. Lee, 141 P.3d at 349 (explaining that \\\"Alaska Civil Rule 37(b) gives judges broad discretion to enforce discovery orders through sanctions.\\\" (citing DeNardo, 51 P.3d at 922).)\\n. DeNardo, 51 P.3d at 923.\\n. In his deposition, Dr. Boyd confirmed that he had not been \\\"aware of the need for an expert report\\\" at the time the working draft was filed with the court, and that he first began work on his report shortly before its submission in March of 2007.\\n. See supra note 4.\\n. Richey v. Oen, 824 P.2d 1371, 1374 (Alaska 1992) (citing Metcalf v. Wilbur, Inc., 645 P.2d 163, 170 (Alaska 1982)).\\n. Dash had two independent theories of liability: lack of informed consent and negligent performance of the procedure itself. She argues that either theory is adequate to support the jury's award.\\n. Girves v. Kenai Peninsula Borough, 536 P.2d 1221, 1223 (Alaska 1975) (quoted with approval in Van Huff v. Sohio Alaska Petroleum Co., 835 P.2d 1181, 1186 (Alaska 1992)).\\n. $35 P.2d at 1186-87.\\n. Id. at 1187.\\n. Id.\\n. 638 P.2d 186, 189 (Alaska 1981).\\n. Id.\\n. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 793-807, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).\\n. Hout, 638 P.2d at 189.\\n. Conam Alaska v. Bell Lavalin, Inc., 842 P.2d 148, 153 (Alaska 1992) (internal citations and footnote omitted).\\n. Dr. Roderer claims that Dash's closing argument contained such an implication, but we do not find the closing argument troubling. Dash's counsel pointed out that certain records of the drugs Dash was taking after the IDET were missing, and then stated that \\\"the judge will instruct you that the doctor has an absolute duty to make accurate records and to keep them.\\\" Dash's counsel went on to argue that this failing was part of a broader pattern of inconsistencies or lapses of memory that cast serious doubt on the credibility and reliability of Dr. Roderer's testimony. We do not believe this argument suggested that the missing record, alone, established liability or negligence.\\n. Alaska R. Civ. P. 11.\\n. 46 P.3d 1024 (Alaska 2002).\\n. Id. at 1042 & n. 85 (quoting Taylor Constr. Servs., Inc. v. URS Co., 758 P.2d 99, 102 (Alaska 1988)) (internal quotation marks omitted).\\n. See Sayer v. Bashaw, 214 P.3d 363, 364 (Alaska 2009) (citing Mackie v. Chizmar, 965 P.2d 1202, 1204 (Alaska 1998)).\\n. John's Heating Serv., 46 P.3d at 1042 n. 85 (quoting Taylor, 758 P.2d at 102) (internal quotation marks omitted).\\n. Both the jury instructions and the special verdict form in this case explicitly directed that Dr. Roderer and APCA be treated as a single entity. Cf. Pagenkopf v. Chatham Electric, Inc., 165 P.3d 634, 641 n. 28 (Alaska 2007) (employee and employer treated as individual Rule 68 offer- or where employer's liability premised entirely upon respondeat superior).\\n. For example, in Pagenkopf, 165 P.3d at 640-44, the settlement offer might have precluded any recovery from a third-party defendant, who otherwise stood to be held liable separately and apportioned a distinct percentage of the fault.\\n. Alaska R. Civ. P. 68(b).\\n. The agreement defines \\\"total gross recovery\\\" as the sum of damages, interest on the damages, and any court-ordered awards of attorney's fees. Awards of costs are excluded from \\\"total gross recovery.\\\"\\n. 123 P.3d 992, 1014 (Alaska 2005).\\n. Id. at 1013.\\n. Cf. Froines v. Valdez Fisheries Dev. Ass'n, Inc., 175 P.3d 1234 (Alaska 2008) (affirming award of attorney's fees for plaintiff represented under a contingent fee agreement could be based on attorney's hourly rate and hours worked).\\n. Barrett v. State, 772 P.2d 559, 568 n. 10 (Alaska App.1989).\\n. Parson v. State, Dep't of Revenue, Alaska Hous. Fin. Corp., 189 P.3d 1032, 1038 (Alaska 2008).\"}"
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+"{\"id\": \"6992669\", \"name\": \"STATE of Alaska, Petitioner, v. Allen SIFTSOFF Jr., Respondent\", \"name_abbreviation\": \"State v. Siftsoff\", \"decision_date\": \"2010-04-30\", \"docket_number\": \"No. A-10322\", \"first_page\": \"214\", \"last_page\": \"217\", \"citations\": \"229 P.3d 214\", \"volume\": \"229\", \"reporter\": \"Pacific Reporter 3d\", \"court\": \"Alaska Court of Appeals\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T18:25:46.490526+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before: COATS, Chief Judge, and MANNHEIMER and BOLGER, Judges.\", \"parties\": \"STATE of Alaska, Petitioner, v. Allen SIFTSOFF Jr., Respondent.\", \"head_matter\": \"STATE of Alaska, Petitioner, v. Allen SIFTSOFF Jr., Respondent.\\nNo. A-10322.\\nCourt of Appeals of Alaska.\\nApril 30, 2010.\\nDavid L. Brower, Assistant Attorney General, Criminal Division Central Office, and Richard A. Svobodny, Acting Attorney General, Juneau, for the Petitioner.\\nMichael Jude Pate, Assistant Public Defender, Sitka, and Quinlan Steiner, Public Defender, Anchorage, for the Respondent.\\nBefore: COATS, Chief Judge, and MANNHEIMER and BOLGER, Judges.\", \"word_count\": \"1883\", \"char_count\": \"11597\", \"text\": \"OPINION\\nCOATS, Chief Judge.\\nSergeant Daryl Rice of the Sitka Police Department saw a truck traveling at approximately sixty to sixty-five miles per hour in a forty-five mile per hour zone. Sergeant Rice activated his overhead lights and pursued the truck, reaching speeds which he estimated at eighty to eighty-five miles per hour. Sergeant Rice pursued the truck as it slowed down to turn into the gravel road of a trailer park. The truck momentarily fishtailed, kicked up some gravel and dust, and then continued, apparently under control. Sergeant Rice recognized the driver as Allen Siftsoff Ir.\\nSiftsoff got out of his truck and started walking toward a trailer that Sergeant Rice knew was Siftsoff's trailer. Sergeant Rice told Siftsoff that he was conducting a traffic stop and told him not to go into the trailer. Siftsoff shook his head and went into the trailer.\\nAfter calling for backup and checking to make sure no one else was in the truck, Sergeant Rice knocked on the trailer door, announced his presence, and then proceeded to open the trailer door and enter. In the trailer, he encountered Siftsoff, who was apparently intoxicated. Sergeant Rice took Siftsoff into custody.\\nA grand jury indicted Siftsoff on three counts: (1) failure to stop at the direction of a peace officer, a class C felony; (2) reckless driving, a misdemeanor; and (8) misdemeanor driving under the influence. Siftsoff filed a motion to suppress, arguing that Sergeant Rice had illegally entered his residence and asking the court to suppress all of the evidence which derived from the entry-the evidence of Siftsoff's intoxication. The State argued that Sergeant Rice's entry into Sift-soff's residence was justified under the doe-trine of \\\"hot pursuit.\\\"\\nFollowing an evidentiary hearing, Superior Court Judge David V. George granted the motion to suppress. Judge George held that, to enter a home, the police must not only have probable cause, but also that \\\"an emer-geney or exigency must also exist and the emergency or exigency must be of such a nature that it compels entry into a person's home by police before a warrant can be secured.\\\" Judge George concluded that the police had not met this standard. He concluded that Sergeant Rice had probable cause \\\"to believe Siftsoff was driving the vehicle [that Sergeant] Rice observed and that Siftsoff remained in the house at the time of [Sergeant] Rice's entry.\\\" Judge George stated that there was little danger that Siftsoff would have been able to escape, that he would not have gotten very far if he had attempted to escape, and that Siftsoff would not have been a danger to others. Judge George further stated that there was no indication that Siftsoff was armed or dangerous. Despite finding that Sergeant Rice's pursuit was immediate and continuous, Judge George concluded that \\\"given the specific facts of this case the appropriate action would have been for Sergeant Rice to await the arrival of back-up and obtain a warrant from a neutral judge or magistrate.\\\"\\nWhy we wphold Judge George's decision\\nWe conclude that Judge George's order accurately reflects Alaska law. We have reviewed the Alaska cases which discuss the \\\"hot pursuit\\\" exception to the warrant requirement. In reviewing these cases, we find that the decisions do not support allowing the police to enter a residence merely because the police are engaged in an immediate and continuous pursuit of a suspect. The police must have \\\"a compelling need for official action and no time to secure a warrant.\\\"\\nWe discuss the cases in chronological order. In Gray v. State, the Alaska Supreme Court discussed the \\\"hot pursuit\\\" doctrine. Relying on United States v. Robinson, the supreme court stated that \\\"hot pursuit\\\" requires an exigency \\\"in which time [is] of the essence\\\" and it is not practical to obtain a warrant.\\nIn Anchorage v. Dunkelberger, an unpublished decision, we decided a case with facts similar to Siftsoff's case. In Dunkelberger, a police officer was investigating an automobile accident. One of the drivers involved in the accident informed the officer that the other driver had fled from the seene on foot. The officer was able to obtain information about the driver who had fled from the driver's vehicle registration. The driver who had remained at the seene pointed out the apartment to which the other driver had fled. The officer went to the apartment, saw the door was slightly ajar, and saw someone lying on the bed inside. After knocking and identifying himself, the police officer called out Dunkelberger's name. He heard a groan which he interpreted as a response and entered the apartment and arrested Dunkelber-ger.\\nDunkelberger moved to suppress. The Municipality argued that the officer's entry was justified either by the doctrine of hot pursuit or by Dunkelberger's consent. We upheld the trial court's ruling:\\nWe believe that the trial court could reasonably conclude that the entry into Dun-kelberger's apartment was not justified by hot pursuit. This exception clearly contemplates that the entry into a private residence must be necessary because of circumstances of an \\\"emergency nature.\\\" There was no showing that there was an emergency which would justify a hot pursuit entry.[ ]\\nIn Johnson, we generally discussed exigent cireumstances, including \\\"hot pursuit.\\\" We observed that \\\"a warrantless entry into a person's home to arrest him is per se unreasonable and therefore in violation of the state and federal constitutions unless it falls within one of the limited exceptions to the warrant rule.\\\" We set out a number of factors for a court to consider to determine whether there were \\\"exigent cireumstances\\\" which would justify such an entry. But we summarized the test for whether there were exigent cireumstances by stating that exigent cireumstances occurred where \\\"there is a compelling need for official action and no time to secure a warrant.\\\"\\nWe addressed the doctrine of \\\"hot pursuit\\\" again in Wilson v. State. We set out the facts of Wilson as follows:\\nOn the evening of January 14, 1983, state troopers observed Wilson driving erratically. When the troopers attempted to pull Wilson over he refused to stop and nearly lost control of his truck trying to get away. After hitting one of the patrol cars and running a red light, Wilson drove to his home. There he jumped out of his truck and attempted to run into a greenhouse. The troopers followed him and after a scuffle Wilson was subdued and handcuffed.[ ]\\nWe held that \\\"the officers were in hot pursuit of Wilson when they entered the greenhouse and therefore did not need a warrant.\\\" Wilson is distinguishable from Siftsoff's case. It appears from the circumstances of the case that the police had to act promptly to take Wilson into custody.\\nIn 1993, in Garcia v. State, an unpublished decision, we again relied on the Johnson test to determine whether the police were justified by exigent cireumstances to enter a person's home: \\\"in light of the totality of the cireumstances was there a compelling need for official action and an insufficient time to obtain a warrant?\\\"\\nIn 1999, in Anchorage v. Reekie, an Anchorage police officer developed reasonable suspicion that the driver of a car was intoxi cated. He followed the driver, who parked his car in one of eight parking spaces in an underground garage. The officer stopped his car outside the garage, walked into the garage, and contacted Reekie, who was sitting in his car. The officer arrested Reekie for driving while intoxicated. Reekie \\\"moved to suppress all evidence obtained as a result of the warrantless entry into the garage of his condominium. In the trial court, the Municipality conceded that Reekie had an expectation of privacy in his garage but argued that exigent cireumstances justified the entry.\\\" The trial judge ordered the evidence suppressed.\\nWe held that probable cause to arrest Reekie would not have justified a warrantless entry into his garage \\\"unless exigent cireum-stances required an immediate entry. In assessing the need for immediate action, we examine the totality of the cireumstances, balancing the nature of the exigency against the intrusiveness of the warrantless entry.\\\" We observed that Alaska statutes provide a method to obtain search warrants telephoni-cally. We stated that the \\\"Municipality did not attempt to show that a telephonic warrant would have been ineffectual to prevent the loss of evidence in this case. Nor is there any indication that it was necessary to immediately restrain Reekie to prevent him from escaping or committing further crimes.\\\" We upheld the trial court's decision suppressing the evidence.\\nIn this case, Judge George applied the \\\"hot pursuit\\\" analysis that our supreme court originally set out in Gray. Although Gray dealt with the warrantless entry of a motor vehicle, this court has consistently applied the Gray analysis to situations where the police enter a residence in hot pursuit of a suspect.\\nUnder this analysis, police officers in hot pursuit of a suspect may enter a residence without a warrant if (1) the officers have probable cause to believe that the person has committed a serious offense; (2) the officers know or have probable cause to believe that the person is in the residence they are about to enter; and (8) the officers have probable cause to believe that some additional exigent cireumstance requires a prompt entry into the residence-for instance, that the person is armed or otherwise presents an imminent threat of harm to the officers or others, or that the person will flee the residence and escape unless the officers make an immediate arrest, or that the person will destroy evidence unless immediately apprehended. Finally, even when these criteria are met, the law requires the police to restrict themselves to a peaceable entry unless the situation reasonably requires the use of force.\\nHaving reviewed the record in this case, we conclude that Judge George appropriately applied this analysis to the facts presented here, and that he properly granted Siftsoffs suppression motion.\\nThe judgment of the superior court is AFFIRMED.\\n. AS 28.35.182(a).\\n. AS 28.35.400.\\n. AS 28.35.030(a)(2).\\n. Johnson v. State, 662 P.2d 981, 985 (Alaska App.1983) (citing Michigan v. Tyler, 436 U.S. 499, 509, 98 S.Ct. 1942, 1949-50, 56 L.Ed.2d 486 (1978)). See also Ingram v. State, 703 P.2d 415, 422 (Alaska App.1985).\\n. 596 P.2d 1154 (Alaska 1979).\\n. 533 F.2d 578 (D.C.Cir.1976), cert. denied, 424 U.S. 956, 96 S.Ct. 1432, 47 L.Ed.2d 362 (1976).\\n. Gray, 596 P.2d at 1156-57.\\n. Memorandum Opinion and Judgment No. 106 (Alaska App., May 16, 1982), 1982 WL 889220.\\n. Dunkelberger, 1982 WL 889220 at *1 (internal citations omitted).\\n. Johnson, 662 P.2d at 984-88.\\n. Id. at 984.\\n. Id. at 985-86 (citations omitted).\\n. 680 P.2d 1173 (Alaska App.1984).\\n. Id. at 1177.\\n. Id. (citation omitted).\\n. Memorandum Opinion and Judgment No. 2650 (Alaska App., Mar. 24, 1993), 1993 WL 13156622.\\n. Id. at *3.\\n. Memorandum Opinion and Judgment No. 3998 (Alaska App., Feb. 24, 1999), 1999 WL 91810.\\n. Reekie, 1999 WL 91810 at *1.\\n. Id. at *2 (citations omitted).\\n. 596 P.2d at 1157.\"}"
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+"{\"id\": \"6997261\", \"name\": \"David D. BEAL; Jerry L. Coles; Steven E. Nathanson; Michael C. Norman; Raymond E. Gills; and Stephen C. Sitter, Appellants, v. David A. MCGUIRE; HealthSouth Corporation; Alaska Surgery Center, Inc.; Alaska Surgery Center, Ltd.; Louise Bjornstad; and Lake Otis Professional Center, LLC, Appellees\", \"name_abbreviation\": \"Beal v. McGuire\", \"decision_date\": \"2009-09-25\", \"docket_number\": \"No. S-12626\", \"first_page\": \"1148\", \"last_page\": \"1174\", \"citations\": \"216 P.3d 1148\", \"volume\": \"216\", \"reporter\": \"Pacific Reporter 3d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-11T00:55:19.953321+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before EASTAUGH, CARPENETI, and WINFREE, Justices.\", \"parties\": \"David D. BEAL; Jerry L. Coles; Steven E. Nathanson; Michael C. Norman; Raymond E. Gills; and Stephen C. Sitter, Appellants, v. David A. MCGUIRE; HealthSouth Corporation; Alaska Surgery Center, Inc.; Alaska Surgery Center, Ltd.; Louise Bjornstad; and Lake Otis Professional Center, LLC, Appellees.\", \"head_matter\": \"David D. BEAL; Jerry L. Coles; Steven E. Nathanson; Michael C. Norman; Raymond E. Gills; and Stephen C. Sitter, Appellants, v. David A. MCGUIRE; HealthSouth Corporation; Alaska Surgery Center, Inc.; Alaska Surgery Center, Ltd.; Louise Bjornstad; and Lake Otis Professional Center, LLC, Appellees.\\nNo. S-12626.\\nSupreme Court of Alaska.\\nSept. 25, 2009.\\nDouglas Pope, Pope & Katcher, and Ray R. Brown, Dillon & Findley, P.C., Anchorage, for Appellants.\\nTimothy J. P\\u00e9tamenos, Birch Horton Bitt-ner & Cherot, and Roger F. Holmes, Biss & Holmes, Anchorage, for Appellees.\\nBefore EASTAUGH, CARPENETI, and WINFREE, Justices.\", \"word_count\": \"14153\", \"char_count\": \"88595\", \"text\": \"OPINION\\nEASTAUGH, Justice.\\nI. INTRODUCTION\\nSix members of a joint venture sued two other members, primarily claiming breaches of fiduciary duties. The joint venture, most of whose members were Anchorage physicians, owned a medical services condominium on Laurel Street and leased it out for use as an ambulatory surgical center. The plaintiffs claimed in part that the joint venturer defendants and others were liable for moving the surgical center to a building not owned by the joint venture. They claimed that this diminished the income-earning capacity of the condominium because an Alaska statute, AS 18.07.031(c), effectively prevented the plaintiffs from replacing the surgery center on Laurel Street. The superior court granted complete summary judgment for all the defendants. Because we conclude that genuine issues of material fact exist both as to the extent of the fiduciary duty the two joint venturer defendants owed the plaintiffs and as to whether they breached that duty, we reverse in part and remand. We affirm the summary judgment entered for all the other defendants.\\nII. FACTS AND PROCEEDINGS\\nThis appeal arises out of a lawsuit brought by six members of a joint venture, Advances in Surgical Care, against two other joint venturers and against several other persons and entities. The plaintiffs were Anchorage physicians David Beal, Jerry Coles, Steven Nathanson, Michael Norman, Raymond Gills, and Stephen Sitter. The two joint venturer defendants were HealthSouth Corporation and Anchorage physician David McGuire; the other defendants were former Health-South employee Louise Bjornstad and several business entities.\\nTen physicians and one dentist formed Advances in Surgical Care in 1981. The owners of Advances changed over the years. When the lawsuit was filed in 2003, there were nine members; each had an equal ownership interest. The nine were the six plaintiffs, defendants HealthSouth and Dr. McGuire, and one other individual. Dr. McGuire was not one of the original Advances members, but had become a member by July 1982. HealthSouth became a member in the mid-1990s.\\nThe 1981 organizing document was entitled \\\"Joint Venture Agreement,\\\" but it also consistently referred to the members as \\\"partners\\\" and to the entity as \\\"the Partnership.\\\" The 1981 joint venture agreement defines \\\"Partnership\\\" to mean \\\"joint venture.\\\" The members, including Dr. McGuire, executed an amended agreement in 1982. Like the 1981 agreement, the 1982 agreement is entitled \\\"Joint Venture Agreement,\\\" but it also consistently refers to the members as \\\"partners\\\" and to the entity as \\\"the Partnership.\\\" Unlike the 1981 agreement, the 1982 agreement does not define \\\"Partnership.\\\" The record contains no later organizing document for Advances, and the parties refer to none, so we assume the 1982 agreement is the controlling document. It was largely the same as the 1981 agreement; we will discuss differences in the two agreements as necessary.\\nThe parties dispute the nature and legal effect of Advances's business form. We refer to the entity as a \\\"joint venture,\\\" per the titles of the two joint venture agreements in the record. Our usage is not meant to imply any legal or factual distinction between the joint venture form and the partnership form. We discuss that issue below. Both agreements stated that the \\\"sole purpose\\\" of Advances was to acquire, develop, and manage property for the \\\"production of income and profit.\\\" But it also appears undisputed that, as the defendants alleged in the superior court, the members specifically entered into the joint venture agreement \\\"to construct a building to be used for professional services.\\\"\\nThe persons who were the original Advances joint venturers were also the shareholders of a separate corporation, Alaska Surgery Center, Inc., that was then operating an ambulatory surgical center on Rhone Circle in Anchorage; that surgery center had been in operation since approximately 1976. Alaska Surgery Center, Inc. has been known by different names, including \\\"Surgery Center, Inc.\\\" and \\\"Surgery Center.\\\" We refer to it as \\\"Alaska Surgery Center, Inc.,\\\" the name the corporation adopted in 1983, or as \\\"Alaska Surgery Center\\\" for short. The plaintiffs allege here, as did the defendants below, that the joint venturers started the Advances joint venture primarily to construct a new facility that could house a new ambulatory surgery center.\\nAs amended in 1982, AS 18.07.031 required anyone intending to spend $1 million or more on the construction of a health care facility to first obtain a certificate of need (CON) from the Alaska Department of Health and Social Services (DHSS). In about 1982 Advances and Alaska Surgery Center, Inc. jointly applied to DHSS for a CON to construct an ambulatory surgical center on Laurel Street in Anchorage so Alaska Surgery Center could relocate from Rhone Circle. Dr. Raymond Gills sent DHSS a letter on behalf of Alaska Surgery Center, Inc., stating in part that the space at Rhone Circle would no longer be used for outpatient surgery once that space was vacated.\\nIn February 1983 DHSS issued to both Alaska Surgery Center, Inc. and Advances a CON for the \\\"construction of a new facility and the relocation and expansion of the Surgery Center....\\\" The CON approved a maximum expenditure of $2,809,400 for the new facility. Advances then constructed a new ambulatory surgical facility in Condominium A of 4001 Laurel Street; Advances was the owner of that condominium.\\nIn late 1984 or early 1985 the individuals who were the Alaska Surgery Center, Inc. shareholders (and who were also the Advances joint venturers) sold a majority of them shares in Alaska Surgery Center, Inc. to a health care operating company called AlternaCare. At the same time, the Advances joint venture negotiated a twenty-year lease with Alaska Surgery Center, Inc. for Condominium A at 4001 Laurel Street. In effect, the joint venture leased the space for the surgery center to AlternaCare for twenty years. The joint venturers also entered into a twenty-year non-competition agreement between themselves and Alterna-Care that prohibited Advances and the former shareholders of Alaska Surgery Center, Inc. from directly or indirectly engaging in the ambulatory surgery center business \\\"at any location within a 25 mile radius of the current site of the Center or within the Municipality of Anchorage, whichever is smaller.\\\" The lease and the non-competition agreement both expired in 2005.\\nThe ownership of Alaska Surgery Center, Inc. changed, and in 1996 HealthSouth acquired a majority interest in the corporation. Around the same time, HealthSouth also acquired an eleven percent interest in the Advances joint venture. Thus, by the mid-nineties, the joint venturers included the six physicians who are plaintiffs here and Dr. McGuire and HealthSouth.\\nWhen HealthSouth acquired the corporation in 1996, Alaska Surgery Center, Inc. had approximately nine years remaining on its Laurel Street lease with Advances. In June 1998 HealthSouth hired Dr. McGuire as a consultant to help relocate the Alaska Surgery Center before its lease expired. After plaintiffs filed suit in 2003, Dr. McGuire testified by deposition that he believed that, to relocate the surgery center from Laurel Street, HealthSouth would have to either build a new facility for less than $1 million or apply for a new CON. Because he believed at the time that getting a new CON would be \\\"difficult,\\\" Dr. McGuire informed Health-South that \\\"the best and most likely successful outcome would be legislative.\\\"\\nTherefore, around 1999, Dr. McGuire and HealthSouth informed the other joint ventur-ers that they intended to lobby the Alaska legislature either to repeal the CON requirement or to raise the CON threshold from $1 million to $7 million. The plaintiffs later asserted in their complaint that they had \\\"no objection\\\" to either of these proposed legislative changes.\\nIn January 2000 a lobbyist hired by Dr. McGuire and HealthSouth worked with legislators to introduce House Bill 297, which proposed requiring CONs only for projects with proposed costs exceeding $7 million. But the proposal to raise the CON threshold met with opposition. By March 2000 the sponsor statement for HB 297 indicated that the bill had been- revised to provide \\\"a solution to the immediate problem without raising the $1,000,000 floor.\\\" The revised bill proposed allowing a health care facility to relocate to a new site without obtaining a CON as long as there was no increase in the services offered. As revised, HB 297 proposed in part adding this subsection to AS 18.07.031:\\n(c) Notwithstanding (a) of this section, a person who is lawfully operating a health care facility that is an ambulatory surgical facility at a site may make an expenditure of any amount in order to relocate the services of that facility to a new site in the same community without obtaining a certificate of need as long as neither the bed capacity nor the number of categories of health services provided at the new site is greater. However, notwithstanding the expenditure threshold in (a) of this section, a person may not use the site from which the health care facility relocated for another health care facility unless authorized under a certificate of need issued by the department.\\nThe legislature enacted the bill as so revised; the governor signed it into law in April 2000. The last sentence of the subsection was deleted when subsection .031(c) was amended in 2004.\\nIn 2001 HealthSouth, relying on the new CON exception created in 2000 by AS 18.07.031(c), relocated Alaska Surgery Center from 4001 Laurel Street to the Lake Otis Professional Center. Dr. McGuire, Louise Bjornstad, and HealthSouth each acquired an ownership interest in Lake Otis Professional Center, LLC, the company that owned the Lake Otis Professional Center. Health-South's lease of the Laurel Street facility did not expire until 2005 and HealthSouth apparently continued to pay rent to the Advances joint venture through the end of the lease. The defendants assert that the Laurel Street surgery center space has remained vacant since Advances regained possession when the lease expired in 2005.\\nFive of the joint venturers sued Dr. McGuire, HealthSouth, Louise Bjornstad, Alaska Surgery Center, Inc., Alaska Surgery Center, Ltd., and Lake Otis Professional Center, LLC in April 2003. Another plaintiff was added later. The six plaintiffs are the appellants in the appellate caption. Their March 2004 amended complaint asserted eight claims: (1) fraud by intentional misrepresentation; (2) fraud by deception; (3) negligent misrepresentation; (4) conversion; (5) conspiracy to commit fraud; (6) breach of fiduciary duty; (7) breach of contract; and (8) economic duress.\\nThe superior court granted complete summary judgment for all the defendants in October 2006. The court concluded in part that the plaintiffs had not demonstrated how \\\"choosing to move rather than extending [the] lease\\\" breached any duty owed by defendants McGuire and HealthSouth. The court then awarded all of the defendants attorney's fees under Alaska Civil Rules 68 and 82.\\nThe plaintiffs appeal.\\nIII. DISCUSSION\\nA. Standard of Review\\nWe review grants of summary judgment de novo, drawing all factual inferences in favor of, and viewing the facts in the light most favorable to, the non-prevailing party. Summary judgment is appropriate if there is no genuine issue as to any material fact and the prevailing party is entitled to judgment as a matter of law. A party opposing summary judgment need not prove that it will prevail at trial, but only that there is a triable issue of fact. Any evidence sufficient to raise a genuine issue of material fact, \\\"so long as it amounts to more than a scintilla of contrary evidence,\\\" is sufficient to oppose summary judgment.\\nThe applicability of a legal doctrine presents a question of law to which we apply our independent judgment, adopting the rule of law that is most persuasive in light of precedent, reason, and policy. Questions of contract interpretation generally raise questions of law that we review de novo. Fact questions may be created if the meaning of the contract language depends on conflicting extrinsic evidence. Summary judgment is inappropriate if there is an unresolved material factual dispute about the intent of the contracting parties. The parties' expectations must be gleaned not only from the contract language, but also from extrinsic evidence, including evidence of the parties' conduct, goals sought to be accomplished, and surrounding circumstances when the contract was negotiated.\\nWe review a superior court's award of attorney's fees for an abuse of discretion. We will conclude there has been an abuse of discretion if, after reviewing the whole record, we are left with a definite and firm conviction that the superior court erred in its ruling. Whether a superior court applied the law correctly in awarding attorney's fees is a question of law that we review de novo. We apply the independent standard of review in deciding whether a superior court correctly determined a settlement offer's compliance with Rule 68.\\nB. Whether It Was Error To Grant Summary Judgment to the Joint Venturer Defendants on the Fiduciary Duty Claim\\nThe plaintiffs argue that the superior court erred by granting summary judgment to the two joint venturer defendants (HealthSouth and Dr. McGuire) on the fiduciary duty claim. This claim primarily concerns the joint venturer defendants' role in relocating the surgery center from the Laurel Street facility owned by the joint venture to a facility not owned by the joint venture at a time AS 18.07.031(c) effectively prevented operation of a replacement surgery center at the Laurel Street address. The plaintiffs contend that the joint venture agreement as written imposed fiduciary duties relevant here. They also argue that these genuine issues of material fact exist: (1) whether joint venturers Dr. McGuire and Health-South owed the other joint venturers a fiduciary duty; (2) whether Dr. McGuire and HealthSouth breached that duty; and (3) whether the plaintiffs suffered damages as a result.\\n1. The scope of Dr. McGuire and HealthSouth's fiduciary duties\\nThe plaintiffs contend preliminarily that the joint venture agreement created a fiduciary relationship and that the joint ventur- ers owed each other a duty to act without fraud or deceit and with full disclosure at all times. They also argue that there are genuine issues of material fact concerning the scope of fiduciary duties owed by Dr. McGuire and HealthSouth. Dr. McGuire and HealthSouth respond that Advances was a joint venture, not a partnership, and assert that this distinction is \\\"significant\\\" because the scope of duties owed between partners is generally broader than that owed between joint venturers.\\na. Whether the form of Advances matters\\nIn granting summary judgment, the superior court noted that the parties disagreed about whether partnership or joint venture law determined the scope of fiduciary duties owed. The superior court did not resolve this disagreement, having ruled there was no breach of any fiduciary duty.\\nBecause joint ventures and partnerships both involve fiduciary relationships, the outcome of this appeal does not turn on whether Advances was a partnership or a joint venture. Instead, the scope of any duties the members owed each other is principally determined by the terms of the 1982 joint venture agreement. We assume the 1982 agreement is the applicable agreement. That is the agreement signed by Dr. McGuire, and no one suggests any later joint venture agreement exists or applies.\\nThat said, there seems to be little justification for distinguishing between a partnership and a long-term joint venture like Advances when determining the scope of fiduciary duty owed. Advances was created primarily to construct the 4001 Laurel Street building and to own and manage the portion of the building (Condominium A) containing a surgery center that would generate long-term profits for the joint venturers. Advances is a profit-sharing enterprise formed to facilitate not just a single transaction or project relatively brief in duration, but rather a long-term, and potentially lucrative, business arrangement. Although we have indicated that fiduciary duties owed between partners may often be broader than those owed between joint v\\u00e9nturers, we have been referred to no authority that would make such a distinction relevant in this ease.\\nIt also does not matter that, unlike the 1981 agreement, the 1982 amended agreement did not explicitly state that general partnership law would apply to the extent the agreement did not provide otherwise. The joint venture was a form of partnership; the only question is whether the agreement's terms and purposes gave rise to or foreclosed particular purported duties of loyalty and care.\\nUnder Alaska's Uniform Partnership Act (UPA), the scope of duties owed between partners is largely determined by the partnership agreement. The UPA also governs relations between and among partners \\\"[t]o the extent the partnership agreement does not otherwise provide.\\\" According to AS 32.06.404, partners owe each other the duties of loyalty and care. The duty of loyalty requires a partner to refrain from competing in the conduct of the partnership business and to account for any property, profit, or benefit derived by the partner from the appropriation of a partnership opportunity. A partner must discharge this duty and any other duties under the partnership agreement and exercise any rights \\\"in accordance with the obligation of good faith and fair dealing.\\\" According to AS 32.06.960, the partnership agreement may not completely eliminate the duty of loyalty, but may \\\"identify specific types or categories of activities that do not violate the duty of loyalty, if not manifestly unreasonable.\\\"\\nTo determine the scope of duties owed between the Advances joint venturers, we must therefore first consider what duties the joint venture agreement explicitly or implicitly imposed on the members.\\nb. The terms of the agreement\\nThe parties disagree about the extent of any fiduciary duty owed under the 1982 joint venture agreement. Four provisions in that agreement, sections 2.04, 2.05, 5.04, and 13.07, are particularly relevant.\\nThe defendants argue that sections 2.05 and 13.07 demonstrate that the joint venturers specifically agreed to limit their fiduciary duties, as former AS 32.05.130 legally entitled them to do. The defendants appear to reason that sections 2.05 and 13.07 entitled Dr. McGuire and HealthSouth to deal with the plaintiffs \\\"at arm's length, unencumbered by any fiduciary duty,\\\" in any matter involving Alaska Surgery Center, Inc. after its sale in 1985.\\nSection 2.05, in effect, permitted members to compete with the joint venture and among themselves, and states that nothing \\\"shall deprive or otherwise affect the right of the Partners to own, invest in, manage or operate property or to conduct business activities which ar\\u00e9 competitive with the business of the Partnership.\\\"\\nSection 13.07 authorized the individual joint venturers to enter into transactions with Advances, and provides:\\nTransactions Between the Partnership and a Partner. Any Partner may deal with the Partnership other than in his capacity as a member of such Partnership, and any such transaction shall be consid ered as occurring between the Partnership and one who is not a Partner. Any such transaction(s) shall be governed by such terms and conditions and shall be based on such compensation and commissions as may be agreed between the Partner so dealing with the Partnership acting through the Executive Committee.\\nThe plaintiffs implicitly contend that section 13.07 was intended to permit a joint venturer to deal at arm's length with Advances when leasing office space in the Laurel Street facility. They also argue that nothing in section 2.05, which permits members to compete with Advances and the other members, implies a complete waiver of all fiduciary duties.\\nWe conclude that the defendants' analysis of the agreement's limiting effect on fiduciary duty is incorrect. They correctly contend that sections 2.05 and 13.07 allow joint ven-turers to compete with Advances and conduct business with Advances as if they were at arm's length. But those provisions did not expressly or implicitly relieve Dr. McGuire and HealthSouth of every fiduciary obligation they might otherwise owe with respect to the ownership and management of the joint venture's Laurel Street property. Indeed, to the extent the fiduciary violations alleged by the plaintiffs do not involve either competing with or dealing at arm's length with the joint venture, sections 2.05 and 13.07 do not apply.\\nThe plaintiffs contend that section 5.04 of the joint venture agreement confirms that the members of Advances owed a fiduciary duty to act \\\"without fraud and deceit and with full disclosure at all times.\\\" They also argue that section 5.04 prohibited the joint venturers from doing anything that would effectively prevent Advances from carrying on its \\\"business,\\\" which they assert was \\\"to lease a majority of the space at the Laurel Street facility [for use] as a surgery center.\\\"\\nSection 5.04, in effect, prohibits members from engaging in unconsented activities detrimental to the joint venture's best interests. It states in part that a member cannot, \\\"without the consent of the Majority-in-Interest of the Partners,\\\" do any act that would be \\\"detrimental to the best interests of the Partnership\\\" or otherwise \\\"make it impossible to carry on the business of the Partnership.\\\"\\nThe superior court implicitly determined that section 2.04 defined the extent of Advances's purpose and, by extension, the extent of any fiduciary duty owed under section 5.04. The superior court concluded that, per section 2.04, the purpose of Advances was \\\"specifically limited to the acquisition of real property and the development, leasing, sale, operation and management of the real property.\\\" The court seemingly reasoned that the business of the joint venture was not leasing a surgery center, but rather generally owning and managing real property.\\nSection 2.04, which defines the purpose and character of the Advances business, provides that:\\n[t]he sole purpose of the Partnership shall be limited to (i) the acquisition of real property listed in Exhibit A hereof (\\\"Property\\\") and all personal property used in connection with the operation of the Property and improvements thereof; and (ii) the development, leasing, sale, operation and management of the Property, improvements thereon, and said personal property for the production of income and profit.\\nIn short, section 2.04 states that the \\\"sole purpose\\\" of the joint venture is to manage real property for \\\"the production of income and profit.\\\" Defendants point to no evidence permitting a finding that there was no such purpose. Given this express purpose, we conclude that section 5.04 imposed a fiduciary duty on the joint venturers to avoid gravely harming the income-earning capacity of the joint venture. That duty was potentially relevant here. We consequently conclude the agreement's terms imposed actionable fiduciary duties on the members, without regard to whether extrinsic evidence would permit defining those duties more broadly.\\nThe plaintiffs also argue that the superior court \\\"erred by limiting [its] review to the terms of the partnership agreement.\\\" They contend that the court also should have considered extrinsic evidence and the circumstances surrounding the formation and conduct of the partnership. The plaintiffs argue that the court should have considered that: (1) when Advances was formed, the joint venturers were all practicing physicians who owned and operated Alaska Surgery Center, Inc.; (2) Advances applied for the 1983 CON together with Alaska Surgery Center, Inc.; and (3) Advances's primary business for twenty years was leasing out most of the Laurel Street facility for use as a surgery center.\\nWe agree with the plaintiffs that the text of the joint venture agreement is not necessarily dispositive when determining the purpose of the joint venture. As the plaintiffs argue, in determining the meaning of an agreement courts should consider, in addition to its text, relevant extrinsic evidence, including the subsequent conduct of the parties. Courts may consult extrinsic evidence without first finding that an agreement's words are ambiguous.\\nWe conclude that the record contains evidence that would permit an inference that the purpose of the joint venture was broader than the superior court found from the agreement's text. For example, the joint venture was formed by a group of health care professionals who then owned and operated the Rhone Circle surgery center. After Advances acquired the Laurel Street property, the joint venture and a new corporation jointly applied to DHSS for a CON to construct a new, apparently larger, health care facility on Laurel Street into which the Alaska Surgery Center would be moved. The joint venture received the surgery center lease payments for at least twenty years. And although the surgery center itself was sold in 1985, it was sold when no statute permitted the surgery center to be relocated unless a new CON was obtained for the new location. A fact finder might therefore find that even though the current lease expired in 2005, given the relative difficulty of obtaining a CON, it was reasonable for the joint venture to expect that the Laurel Street facility would continue to operate as a surgery center beyond 2005 and would continue to generate commensurate lease payments. It cannot be said as a matter of law that the joint venture had no purpose of receiving those payments after 2005 just because the current lease was to expire in 2005. It could be inferred that Advances was formed not merely to manage real property at 4001 Laurel Street, but with the specific purpose of (1) providing space to be leased for long-term use as the new (post-Rhone Circle) ambulatory surgical center and (2) sharing substantial profits from that use. The evidence suggests that the joint venture had a purpose of leasing real estate for use as a surgery center, or at least owning a facility that would generate the sort of revenue to be earned by leasing to a surgery center.\\nTherefore, even given a narrow reading of what the agreement said about the purpose of Advances, it cannot be said as a matter of law that the joint venture had no purpose giving rise to a fiduciary duty relevant here. And extrinsic evidence that the purposes may have specifically included leasing the space for use as a surgery center creates a genuine fact dispute that forecloses complete summary judgment on the duty issue. It will be necessary on remand to consider extrinsic evidence relevant to the joint venture's purposes. Those purposes will determine what the joint venturer defendants could permissibly do (such as competing, as expressly authorized by section 2.05) and could not do (such as any act that was detrimental to the joint venture or that made it impossible for the joint venture to carry out its business, as expressly prohibited by section 5.04).\\n2. The alleged breaches of fiduciary duties\\na. Relocation of the surgery center\\nThe plaintiffs argue that the superior court erred in granting summary judgment on the issue whether the two joint venturer defendants breached their fiduciary duties. The plaintiffs contend in part that there are triable issues whether those defendants breached their fiduciary duties by \\\"destroying [the joint venture's] right to continue leasing the Laurel Street facility as a competing surgery center.\\\"\\nWhether there was a breach depends in part on what duties were owed. Given what we said above about those duties, there is a genuine issue of material fact about whether Dr. McGuire and HealthSouth breached their fiduciary duties when they moved the surgery center from Laurel Street to Lake Otis. If Advances had a purpose of maximizing the rent at Laurel Street or a more specific purpose of receiving rent from a surgery center into the indefinite future, there is a genuine dispute about whether the conduct of the joint venturer defendants breached their fiduciary duties by violating section 5.04.\\nWe are unpersuaded that either section 2.05 or section 13.07 has any application to the relocation dispute. Section 2.05 would have permitted the defendants to open a brand new surgery center in competition with the existing surgery center; doing so therefore could not, by itself, have been a breach of fiduciary duty. But the relocation was not an act of competition, and indeed effectively prevented the joint venture from competing with the relocated surgery center. Relocation prevented the joint venture from replacing the surgery center at the Laurel Street facility, because AS 18.07.031(c), even as amended in 2004, prohibited Advances from establishing a surgery center there unless it either obtained a new CON or spent less than $1 million on the replacement center.\\nThe evidence permits an inference that neither of those options was feasible. There was evidence the Alaska Surgery Center operated six surgical suites at the Laurel Street facility before it relocated. And there was evidence that although the joint venture might be able to re-equip and reopen a two-suite surgery center for under $1 million, there was \\\"no way that [it] could get six rooms, even buying used equipment....\\\" There was also evidence suggesting that DHSS was unlikely to issue Advances a CON to reestablish a surgery center at Laurel Street. Dr. Nathanson stated in a 2006 affidavit that Advances was \\\"being told that it is not likely another CON will be issued in the near future for an ambulatory surgery center in the Anchorage area.\\\"\\nIt is also inferable that the defendants knew before the relocation that it would be difficult to obtain a new CON for a surgery center in Anchorage: Dr. McGuire recommended in the late 1990s that HealthSouth pursue legislative changes that would enable the Alaska Surgery Center to relocate without being issued a new CON. Dr. McGuire testified in his deposition that he believed getting a CON for the construction of a new surgery center would be \\\"difficult\\\" and that legislative action presented HealthSouth's \\\"best and most likely successful outcome.\\\"\\nWe therefore conclude that there is a triable issue as to whether Dr. McGuire and HealthSouth breached their fiduciary duties by relocating Alaska Surgery Center in 2001.\\nThere may also be a triable issue about whether the joint venturers consented to the relocation. The defendants argue that the plaintiffs \\\"expressed agreement\\\" with HealthSouth's plan to seek legislation that would exempt it from obtaining a CON before moving the surgery center. We interpret section 5.04 to mean that, if a majority-in-interest of the joint venturers consented to relocating the Alaska Surgery Center, the relocation would have breached no fiduciary duty.\\nThe superior court concluded that the plaintiffs \\\"admitted that they approved the move.\\\"\\nThe plaintiffs' amended complaint stated that they did not object to defendants' plans to build a new ambulatory surgical facility and to seek changes in the CON law. But that admission is inferably qualified by the amended complaint's related allegation that the plaintiffs then understood that the defendants were seeking to repeal the CON law or raise the CON threshold. Neither of those changes would have prevented the joint venture from recreating a surgery center after the relocation proposed by the defendants. The plaintiffs did not admit that they had consented, after AS 18.07.031 was amended in 2000, to a relocation that would effectively prevent Advances from using or leasing the Laurel Street property as a surgery center after the proposed relocation.\\nThe plaintiffs argue that consent must be informed to be meaningful in these contexts. They cite in support the Oregon Supreme Court's decision in Starr v. International Realty, Ltd. In that case, partners in a real estate venture sued their fellow partner to account for commissions he had received by acting as a realtor without their consent. The Oregon Supreme Court concluded that the consent required of the other partners was \\\"informed consent with knowledge of the facts necessary to the giving of an intelligent consent.\\\"\\nWe adopted the Starr consent standard in Wirum & Cash, Architects v. Cash. We held there that \\\"[a] partner only overcomes a breach of fiduciary duty if there is a full and complete disclosure to the other partner and if the breaching partner secures the other partner's approval and consent.\\\" We also concluded that the consent \\\"must be informed consent with knowledge of facts nec essary to an intelligent choice.\\\" That standard applies here.\\nWe accordingly conclude that a genuine issue of material fact remains as to whether a majority-in-interest of the joint venture consented to the relocation of Alaska Surgery Center. It cannot be said as a matter of law that consent expressed before the plaintiffs knew of the revisions to HB 297 was \\\"informed.\\\"\\nb. Misrepresentation\\nThe plaintiffs argue that Dr. McGuire and HealthSouth also breached their fiduciary duties by making misrepresentations to David Pierce, the CON coordinator for DHSS, about the joint venture's intentions. The superior court appears to have dismissed the misrepresentation, deception, and conversion claims because it had concluded plaintiffs had no property interest in the CON or claim arising out of the \\\"transfer\\\" of the CON. What we say elsewhere in this opinion in subpart a above and subpart c below about the relocation and partnership property theories of fiduciary duty breach also requires remand for consideration of the misrepresentation theory.\\nSoon after HB 297 became law, Pierce sent an e-mail to a HealthSouth representative congratulating HealthSouth on the bill's passage and instructing HealthSouth on how to \\\"expedite the process for receiving a health care facility construction license.\\\" Pierce asked HealthSouth to submit a letter of intent \\\"provid[ing] a list of owners of the existing facility and their signatures showing that they agree to close the existing facility once the new facility is built.\\\"\\nLouise Bjornstad responded for Health-South with a letter of intent addressing Pierce's questions regarding Alaska Surgery Center's relocation. Bjornstad did not list the names of the Advances joint venturers or provide their signatures as Pierce had requested. Although HealthSouth prepared a draft signature page for the Advances joint venturers, the page was never signed. Dr. Beal stated in his deposition that he had never seen the page before.\\nBjornstad stated in her letter to Pierce that \\\"[t]he Laurel Street Building will [not be] leased or sold to any individual or group intending to operate an ambulatory surgery center.\\\" She further addressed Pierce's request regarding the future business of the Laurel Street facility in the following way:\\n[AS 18.07.031(c)] clearly does not require that the Laurel Street Building remain vacant after the Surgery Center relocates. Therefore, we do not understand how the purpose of the statute would be served by the agreement by the owners of the Laurel Street Building that the[y] will \\\"close the existing facility.\\\" Nothing in AS 18.07.031 prohibits new uses of the Laurel Street Building that do not require a certificate of need, including health care related uses.\\nDr. McGuire then sent an email to Pierce expressing frustration about the CON determination process. Seemingly referring to Pierce's recent request for a letter of intent from HealthSouth, Dr. McGuire remarked, \\\"[w]hy you would suppose that you had the authority to demand that the exi[ ]sting facility be 'CLOSED' or that the owners of the facil[i]ty should sign a document to that effect is beyond me!! You have caused expenditures for attorneys fees that should never have been required.\\\" Dr. McGuire further commented that Pierce's recent \\\"demands\\\" of HealthSouth were \\\"vindictive and prejudicial\\\" in light of clear legislative intent that replacement projects \\\"be allowed to proceed without interference from [Pierce's] department.\\\"\\nThe plaintiffs argue that HealthSouth and Dr. McGuire breached their fiduciary duty when they \\\"resisted providing\\\" Pierce the information he requested regarding the intentions of Advances and \\\"misrepresented\\\" that the joint venturers intended to use the Laurel Street building in a way that would not require a CON. The plaintiffs also con tend that Dr. McGuire and HealthSouth breached their fiduciary duties by concealing: (1) the effect of the 2000 amendment, (2) their role in the legislative process, and (3) the misrepresentations they made to Pierce after the legislation passed.\\nThe defendants respond that there was nothing wrong with HealthSouth's representations to Pierce. But we conclude that a fact finder could disagree. There appears to be a factual dispute about whether the joint venture had no interest in using the Laurel Street building for a surgery center, a use that would require a CON, and thus either the existing 1983 CON or a new CON. Bjornstad's statement was therefore potentially incorrect. The defendants' communications with Pierce permit an inference that they deliberately avoided involving the plaintiffs in their CON approval process and actively discouraged DHSS from contacting the other members of the joint venture. Based on the plaintiffs' present objections, had Pierce contacted the other members, it is possible they would have stated that they intended to continue renting or even intended to begin operating the Laurel Street facility as a surgery center themselves and would have objected to the relocation proposed by Health South. It is also conceivable that news of such an intent or such an objection would have affected Pierce's determination. That Pierce asked for the signatures of the Advances joint venturers is some evidence he believed their consent was relevant to the process. We therefore conclude that a genuine issue of material fact exists as to whether Dr. McGuire and HealthSouth's conduct amounted to a breach of their fiduciary duties.\\nThe defendants also contend, but very tersely, that Bjornstad's statements were \\\"constitutionally and legislatively protected\\\" under both the First Amendment and the Noerr-Pennington doctrine. The plaintiffs argue that Noerr-Pennington only insulates an individual's petitioning activity from statutory-based liability and \\\"does not extend to immunity to the breach of contract and breach of fiduciary duty claims in this case.\\\"\\nThe Noerr-Pennington doctrine evolved out of two United States Supreme Court cases: Eastern R.R. Presidents Conference v. Noerr Motor Freight, Inc. and United Mine Workers v. Pennington, The Court held in Noerr that \\\"the Sherman Act does not prohibit two or more persons from associating together in an attempt to persuade the legislature or the executive to take particular action with respect to a law that would produce a restraint or a monopoly.\\\" At least one court has expanded the doctrine to insulate First Amendment petitioning activity from any cause of action other than defamation.\\nThe superior court did not rule that the defendants' communications with Pierce were protected by the petition clause. There may be unresolved factual disputes material to any invocation of the petition clause regarding those communications. There may be questions about whether any immunity has been lost. There may also be significant legal questions about whether the right to petition is consistent with imposing liability for concealing the petitioning activity and any alleged misrepresentations from a person to whom a fiduciary duty is owed. And the scope of the Noerr-Pennington doctrine is in substantial legal dispute. We therefore decline to resolve this unripe and under-briefed issue.\\nc. Misuse of partnership property\\nThe plaintiffs argue that Dr. McGuire and HealthSouth breached fiduciary duties by using partnership property without consent. They allege that Advances acquired a valuable property interest in the 1983 CON that the defendants then used to relocate Alaska Surgery Center.\\nThe superior court's summary judgment order rejected all arguments premised on an assertion the CON was itself property or conveyed any property right. The court concluded that the CON was issued specifically for constructing, not operating, the Laurel Street facility. It accordingly concluded that the CON had \\\"ceased being a valid property interest\\\" when it \\\"expired\\\" on February 15, 1985.\\nArguing that the superior court erred in reaching this conclusion, plaintiffs contend that the CON did not expire post-construction because it conferred the right to use the facility as a surgery center indefinitely, as long as the recipient complied with the CON's terms. A contrary interpretation, they argue, (1) would \\\"render meaningless\\\" the provisions of AS 18.07.081 that provide guidelines for when a CON may be revoked due to the sponsor's non-compliance with its terms, and (2) would be inconsistent with the 1976 legislative mandate requiring all health care facilities in existence or under construction before July 1, 1976 to be issued a CON.\\nThe defendants respond that the CON is not a property right but rather a means of tracking medical services available within a community. They argue that, even if the CON is a property right, the right attaches, not to a building, but to the health care business that operates within it. They contend that the CON in this case was always owned by Alaska Surgery Center, Inc. and that any property right created by the issuance of the CON belonged to Alaska Surgery Center, Inc., not Advances.\\nThese arguments raise these issues: (1) whether issuing a CON vests its sponsor with a property right that continues to exist post-construction; (2) whether the joint venture had any property interest in the operating rights granted by the 1983 CON; and (3) whether any such property interest still belonged to Advances when the Alaska Surgery Center relocated in 2001. These issues are presented even if the CON itself is deemed to have expired when construction was completed.\\nPer AS 32.06.204, property acquired in the name of the partnership is partnership prop erty. \\\"Property\\\" is defined in AS 32.06.996(13) to include \\\"real, personal, mixed, tangible, or intangible property, or an interest in property.\\\" (Emphasis added.) Other jurisdictions have considered whether a CON confers on its sponsor a property interest for due process purposes and have held that it does. The Iowa Supreme Court has acknowledged that \\\"the actual issuance of a certificate of need conveys a property interest on the holder of the certificate.\\\" The Michigan Court of Appeals similarly held that, once granted, a CON conveys a property interest on its holder. That court specifically recognized that a certificate of need for future hospital beds is \\\"a very valuable property interest, often worth millions of dollars.\\\"\\nAt least one jurisdiction has held that the right conferred by a CON is limited to the period of construction. The Washington Court of Appeals held in Watkins v. Restorative Care Center that a CON did not entitle the recipient nursing home to continuously maintain 250 beds at the facility. That court held that the CON \\\"merely conferred the right to expand the Center into a 250-bed nursing home facility, a right which expired . when construction of the Center's new building was completed.\\\"\\nWe have recognized that the public need for medical facilities makes it essential that DHSS be able to regulate health care facilities by way of the CON program. The legislature adopted the CON program to avoid unnecessary duplication of health care resources in any one geographical area. We have recognized that granting a CON creates \\\"a type of health care monopoly\\\" in the recipient medical facility. A CON recipient is authorized to perform a category of health services for an indefinite period of time as long as the recipient complies with the terms of the CON. Per AS 18.07.041, subsequent CONs authorizing the operation of competing facilities will only be issued if DHSS determines that the \\\"availability and quality of existing health care resources or the accessibility to those resources is less than the current or projected requirement for health services required to maintain the good health of citizens of this state.\\\"\\nGiven the difficulty of obtaining a CON, any enterprise to which one is issued possesses a potentially valuable asset. The authority a CON confers is valuable because it assumes the state will comply with the statutory scheme and restrict competition. A CON confers the valuable right of complete or partial exclusivity. It gives recipients a de facto monopoly until DHSS decides to issue a CON to a competitor or until a competitor can construct a facility at a cost that does not require it to obtain a CON.\\nThe valuable right extends past the period of construction and continues as long as the recipient complies with the terms of the CON.\\nWe also think it significant that, when it first enacted the CON program in 1976, the legislature required all pre-existing health care facilities, whether they were under construction or not, to apply for a CON. This requirement implies that a CON has importance that extends past the completion of construction. It is also significant that AS 18.07.081 provides that a CON can be revoked if the sponsor fails to provide the services authorized. This provision suggests the CON has some continuing effect even after construction has been completed. If, as the superior court concluded, the issuance of the CON were unnecessary for a facility's operation, post-construction revocation of the CON would have no effect on the facility's continued ability to operate and therefore no deterrent or remedial effect. We do not think this statutory interpretation is consistent with legislative intent.\\nWe accordingly hold that the issuance of a CON creates a valuable property interest in the recipient and that the exclusive authority created by the CON continues to exist post-construction. The issuance of the CON in this case created valuable rights that did not expire just because the construction conditions were satisfied. To the extent the superior court apparently reasoned that no such rights survived the completion of construction, we disagree.\\nWe additionally hold that it was error to conclude as a matter of law that the CON \\\"expired on February 15,1985.\\\" Deposition testimony of David Pierce, quoted in the plaintiffs' superior court motion papers, might permit a finding that he understood that if HealthSouth (or AlternaCare) had abandoned Condominium A before the enactment of the 2000 amendments, Advances could have operated a surgery center at Laurel Street without obtaining a new CON. Pierce's testimony permits an inference that DHSS itself did not consider this CON to have expired. It implies that it was DHSS's view that the issuance of the CON for the Laurel Street facility gave the owners of that facility some continuing rights even if the designated operator quit or went out of business. The statutes then in effect did not expressly provide that a CON expires when construction is completed, and permit a conclusion to the contrary. More importantly, even if the CON itself expired when construction ended, the operating authority implicit in the issuance of the CON must be distinguished at this stage of this case from the constructional authority expressly granted by the CON. There is no basis for thinking that this operating authority expired when construction was completed. After all, the CON statute has a purpose of preventing unwarranted competition, i.e., operation of more facilities than are needed.\\nWe next consider whether Advances had some property interest in the operating rights granted by the 1983 CON, and whether any such property interest still belonged to Advances by the time the Alaska Surgery Center relocated in 2001.\\nAdvances and Alaska Surgery Center, Inc. applied together for the 1983 CON that authorized the construction and operation of the Laurel Street facility. The defendants do not dispute that the 1983 CON \\\"carried both Advance[s] and [Alaska Surgery Center, Inc.'s] names.\\\" The CON stated that \\\"it has been determined that the Surgery Center, Inc.\\\" had met the requirements. The CON itself named both applicants, without identifying them as recipients or applicants.\\nWhen the CON was issued in 1983, the same individual medical professionals owned both Advances (as joint venturers) and Surgery Center, Inc. (as shareholders). Those individuals sold their interest in the corporation, the entity operating the surgery center, in late 1984 or early 1985 to AlternaCare; HealthSouth ultimately acquired their interest. The documents selling the center to AlternaCare did not mention sale or transfer of the CON to AlternaCare, although they otherwise listed everything AlternaCare was receiving, including the actual license to operate the surgery center and the equipment needed to run the center.\\nNor did the sale of the shares and the license to operate include Condominium A, the specific location for which the CON was apparently sought and issued. When the sale to AlternaCare took place, no statute authorized relocation of a facility that required a CON. The relocation statute was not enacted until 2000, some fifteen years later. We think the record demonstrates that there is a genuine issue about whether the issuance of the CON in 1983 gave Advances some continuing property interest in the continued operation of the surgery center at Laurel Street even after the 1985 sale to AlternaCare. If Advances retained such an interest, any unconsented acts of the joint venturer defendants in moving the center away from Laurel Street potentially interfered with or misused joint venture property rights. It was therefore error to grant summary judgment for defendants on plaintiffs' misuse-of-property claim.\\nWe do not mean to imply that there is no dispute about these propositions. Even though the stock sale agreement does not explicitly mention that the authority granted under the 1983 CON was being transferred to AlternaCare (HealthSouth's predecessor-in-interest), it is arguable that the shareholders intended to relinquish any inchoate authority granted them by the issuance of the 1983 CON to continue to operate the Alaska Surgery Center. The sales agreement does not seem to explicitly retain in the shareholders any reversionary right in that operation. But for purposes of this appeal, it is enough to note that there are unresolved factual disputes that preclude summary judgment on plaintiffs' misuse-of-property claim.\\nd. The plaintiffs' other arguments\\nThe plaintiffs also argue that there are triable issues about whether Dr. McGuire and HealthSouth breached their fiduciary duties in other ways. The plaintiffs allege fraud, deceit, failure to disclose, concealment, bad faith, and profiting from a prohibited transaction connected with the conduct of the partnership. Because the plaintiffs give only cursory treatment to many of these claims, it is unclear whether they add anything to plaintiffs' fiduciary breach claim. But because we are reversing and remanding as to that claim, the plaintiffs may also pursue these subsidiary claims insofar as they relate to the breach of fiduciary duty claim.\\n3. Liability of the Other Defendants\\nThe plaintiffs argue that there is substantial evidence in the record from which to infer that the remaining defendants\\u2014 Bjornstad, Alaska Surgery Center, Alaska Surgery Center, Ltd., and Lake Otis Professional, LLC \\u2014 -were liable for \\\"aiding and abetting\\\" a breach of fiduciary duty because they knowingly assisted the joint venturer defendants in breaching their fiduciary duties. The plaintiffs cite Wirum & Cash, Architects v. Cash as standing for the proposition that a person who knowingly assists someone in breaching a fiduciary duty is liable for the harm caused.\\nWe assume for discussion's sake that a non-fiduciary may be liable for aiding or abetting a breach of fiduciary duty. We have stated that, under subsection 876(b) of the Restatement (Second) of Torts, aiding and abetting liability occurs when the actor \\\"knows that the other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other.\\\"\\nBut plaintiffs have waived this argument. The amended complaint did not claim aiding and abetting fiduciary breach. Nor did the plaintiffs raise their aiding-and-abetting theory in the superior court.\\nMoreover, the plaintiffs produced no facts demonstrating that defendants Alaska Surgery Center, Inc., Alaska Surgery Center, Ltd., and Lake Otis Professional, LLC gave \\\"substantial assistance or encouragement\\\" in any way that aided Dr. McGuire and Health-South's alleged breaches.\\nWe are also unpersuaded by the plaintiffs' argument as to Bjornstad's liability. As a general principle an employee \\\"cannot be held liable for the breach of a contract between the employer and another party.\\\" An employee likewise may not be held liable for his or her employer's breach of fiduciary duty with respect to a third party. Although an employee such as Bjornstad \\\"may be held liable for damage caused by independently tortious or malicious acts,\\\" there is no claim on appeal she engaged in such acts.\\nWe accordingly hold that the superior court did not err in granting complete summary judgment for Bjornstad, Alaska Surgery Center, Inc., Alaska Surgery Center, Ltd., and Lake Otis Professional, LLC on all claims.\\n4. Whether it was error to find that there were no damages\\nThe superior court dismissed most of the claims partly because it concluded that there were no damages. It appears to have concluded that the only possible harm posed to Advances originated from the language in the 2000 statutory amendment providing that, \\\"notwithstanding the expenditure threshold in (a) of this section, a person may not use the site from which the health care facility relocated for another health care facility unless authorized under a certificate of need issued by the department.\\\" Because the legislature deleted this language when it amended subsection .031(c) in 2004, the superior court may have reasoned that the joint venture was thereafter in the same position it would have been in before enactment of the 2000 amendment. The court found that HealthSouth continued to pay the rent on the Laurel Street facility until its lease expired in 2005 and that the joint venture was thereafter free to do what it wanted with the property.\\nThe plaintiffs argue that they suffered damages because Advances is no longer able to lease out the Laurel Street facility as a surgery center or sell it to someone intending to operate it as a surgery center. They contend that this lost ability has \\\"substantially reduced\\\" the joint venture's income from the property because Advances could otherwise have leased the building at above-market rates.\\nThe defendants respond that the joint venture's inability to use the Laurel Street facility as a surgery center \\\"has nothing to do with [HealthSouth] and Dr. McGuire and everything to do with the business decision [the plaintiffs] made to cash out by selling the surgery center in 1985.\\\" They contend that the Laurel Street facility has remained vacant since Advances regained possession in 2005 because \\\"it will now cost more than the CON threshold limit to start up another surgery center in the vacated space.\\\" Defendants also note that the lease expired in 2005 and that all lease payments were made. They therefore contend that Advances suffered no damages and that Advances is in the same position it would have been had Health-South simply shut down the facility in 2005 or waited until 2005 to relocate.\\nWe conclude that there is a genuine factual question about whether Advances has been damaged. The 2004 amendment to AS 18.07.031(e) does not establish as a matter of law that Advances was not damaged. Even as amended in 2004, the statute did not allow Advances to construct a surgery center at Laurel Street without obtaining a new CON unless the cost would not have exceeded $1 million. The evidence permits an inference that neither alternative was feasible. Moreover, the defendants appear to concede that Advances is no longer able to house a surgical center in the Laurel Street facility.\\nWe concluded above that there is a material question of fact about whether the joint venturer defendants breached their fiduciary duties by relocating the Alaska Surgery Center from the Laurel Street facility after AS 18.07.031 was amended in 2000. We similarly hold that there is a triable issue about whether the plaintiffs were damaged as a result of the relocation.\\nC. Attorney's Fees\\nThe plaintiffs argue that the superior court erred in awarding the defendants Civil Rule 68 and Civil Rule 82 attorney's fees.\\nWhen the plaintiffs filed their original complaint in April 2003, they were represented by the law firm of Landye Bennett Blumstein LLP (LBB). In October 2003 the defendants moved to disqualify LBB from representing the plaintiffs because it had drafted the joint venture agreement for Advances, provided guidance to Defendant McGuire about a CON's legal characteristics, and advised Advances about the dispute between Drs. Beal and McGuire. The superior court granted the disqualification motion on November 13, 2003, concluding that LBB had \\\"engaged in the prohibited conduct of both representing and bringing suit against a client.\\\"\\nBefore LBB was disqualified, defendants HealthSouth, Bjornstad, Alaska Surgery Center, Inc., Alaska Surgery Center, Ltd., and Lake Otis Professional Center, Inc. each made an offer of judgment to each plaintiff. Dr. McGuire made an offer of judgment to each plaintiff except Dr. Gills. Most of the offers were made in June 2003, about two months after the plaintiffs filed their first complaint. Each offer provided that:\\nDefendant ., pursuant to Alaska R. Civ. P. 68 and AS 09.30.065, hereby offers to allow entry of judgment for plaintiff . in this action for $1.00, including interest, costs and attorney's fees. This is an offer of compromise only and is not to be construed as an admission.\\nNo plaintiff accepted these offers.\\nAfter granting complete summary judgment for the defendants, the superior court awarded them attorney's fees under both Rule 68 and Rule 82. Under Rule 82, it awarded defendants full reasonable attorney's fees that the defendants incurred from the commencement of the litigation until LBB was disqualified on November 13, 2003. Under Rule 68, the court also determined that each plaintiff, with one exception, was liable for seventy-five percent of the full reasonable attorney's fees each defendant incurred after November 13, 2003.\\n1. The awards to HealthSouth and Dr. McGuire\\nBecause we have reversed the grant of complete summary judgment for defendants Dr. McGuire and HealthSouth and remanded for further proceedings as to them, they are no longer prevailing parties. We accordingly vacate their Rule 68 and Rule 82 attorney's fees awards.\\n2. Whether it was error to award both Rule 68 and Rule 82 fees\\nThe plaintiffs argue that the superior court erred by awarding attorney's fees under both Rule 68 and Rule 82.\\nAlaska Statute 09.30.065, which codifies when Rule 68 awards may be granted, states that \\\"[a] party who receives attorney fees under this section may not also receive attorney fees under the Alaska Rules of Civil Procedure.\\\" A party may not receive awards under both Rule 68 and Rule 82 even if those awards correspond to different time periods within the same ease.\\nBecause it was error to award the defendants fees under both Rule 68 and Rule 82 in the same case, we vacate the fees awards to the prevailing party defendants and remand for further proceedings.\\n3. Whether the Rule 68 offers of judgment were valid\\nThe plaintiffs argue that we should reverse the Rule 68 awards because the offers of judgment were invalid. They contend in part that the offers were unreasonable in both timing and amount because the defendants made one dollar offers of judgment thirty days after the litigation started as a \\\"tactical move to benefit from the 75% clause in the rule and the statute.\\\" They also argue that the offers did not refer to resolution of the counterclaims brought by HealthSouth and Dr. McGuire and \\\"thus did not 'clearly indicate' that 'all claims between the parties would be resolved if the offer were accepted.'\\\" The defendants respond that the offers explicitly offered \\\"to allow entry of judgment for plaintiff' and therefore clearly indicated that, if they were accepted, all claims would be resolved in the plaintiffs' favor.\\nRule 68 provides for attorney's fees awards when a prevailing litigant has offered to allow judgment to be entered in \\\"complete satisfaction of the claim.\\\" If the case involves multiple defendants and the judgment finally rendered is at least ten percent less favorable to the offeree than the offer of judgment, the prevailing litigant is entitled to Rule 68 fees. A prevailing party serving a successful offer of judgment within sixty days after the date set for initial Rule 26 disclosures is entitled to recover seventy-five percent of his or her reasonable actual attorney's fees.\\nOther courts have held that to obtain the protection and benefit of enhanced attorney's fees, the offer of judgment must be made in good faith with the goal of settling the case rather than obtaining a larger attorney's fee award. Those courts have suggested that, as a general rule, one dollar offers of judgment do not satisfy that good-faith test.\\nAlthough we have yet to adopt a similar \\\"good-faith test\\\" for offers of judgment, we suggested in Lowell v. Hayes that a Rule 68 offer of judgment may be invalid if the offer is disingenuously low. We there observed that in Beattie v. Thomas, the Nevada Supreme Court had identified four factors for trial courts to consider in determining the validity of offers of judgment. One of those factors was whether the offer was reasonable and in good faith in both its timing and amount. But because the plaintiff in Lowell did not claim the defendants' offer was unreasonable or made in bad faith, we did not need to reach the issue in that case.\\nThe superior court here declined to apply the Lowell dicta, concluding that \\\"the language of Rule 68 and A.S. 09.30.065 and the purposes of the rule and statute is best served by a bright line rule rather than a determination under the Beattie factors.\\\"\\nEven though a purpose of Rule 68 is to encourage settlement and avoid protracted litigation, offers of judgment made without any chance or expectation of eliciting acceptance or negotiation do not accomplish the purposes behind the rule. The offers of judgment in this case were for one dollar. Most of the defendants served their individual offers of judgment before they asserted their counterclaims. Their offers were nothing more than tactical demands that plaintiffs dismiss their claims to avoid exposure to Rule 68 fees awards. The amount offered was effectively zero in what appears to be a good faith dispute involving potentially substantial damages. In the context of this case, these offers could not be considered valid offers of settlement or compromise, or valid attempts to encourage negotiation. They do not satisfy the Beattie factors. We conclude that they were not valid Rule 68 offers of judgment, and therefore reverse the Rule 68 fees awards.\\nWe have held that Rule 68 implicitly requires that an offer of judgment include all claims between the parties and \\\"be capable of completely resolving the case by way of a final judgment if accepted.\\\" The plaintiffs also argue that because the offers did not explicitly indicate that the counterclaims would be resolved if the offers were accepted, the offers of judgment were not \\\"comprehensive.\\\" We do not need to reach this argument, having decided that the offers were invalid for other reasons.\\nBecause the offers of judgment were invalid, we reverse the Rule 68 attorney's fees awards.\\n4. Whether it was error to award enhanced Rule 82 attorney's fees for the period before LBB was disqualified\\nThe plaintiffs allege that it was unreasonable to award all defendants full rea sonable attorney's fees incurred before LBB was disqualified. The defendants respond that the plaintiffs' persistent attempt to use the joint venture's counsel to sue the defendants was \\\"per se vexatious, unreasonable, in bad faith and utterly devoid of merit,\\\" and therefore mandated an enhanced attorney fee award. (Internal quotations omitted.)\\nAn award of full attorney's fees under Rule 82 can be justified by the losing party's bad faith defense or vexatious conduct. The reasons for awarding full attorney's fees \\\"must generally be explained\\\" by the superior court.\\nIn holding the plaintiffs liable for the full attorney's fees incurred by the defendants until LBB's disqualification, the superior court reasoned that the plaintiffs had \\\"acted unreasonably and in bad faith\\\" by retaining LBB despite promising not to do so and by \\\"vigorously\\\" opposing Dr. McGuire's motion to disqualify LBB. The court additionally found that the plaintiffs had sought to use joint venture funds to pay for LBB's services and that \\\"virtually all\\\" of the litigation up until November 13, 2003 concerned whether LBB's representation of the plaintiffs was proper.\\nThe plaintiffs argue that they should not be held responsible for their attorneys' misconduct, especially given that there has been no showing that their attorneys' conduct \\\"tilted the playing field against [the] defendants.\\\"\\nIt does not matter whether the plaintiffs knew LBB could not represent them or whether LBB's representation harmed the joint venturer defendants. The record permits a conclusion that LBB's improper representation required all of the defendants to incur some unnecessary legal fees. Awarding full reasonable attorney's fees until LBB's disqualification was therefore not an abuse of discretion.\\nThat still leaves open what fees were reasonably incurred by which defendants, and why. We have vacated the Rule 82 awards to the joint venturer defendants, HealthSouth and Dr. McGuire. But the superior court actually entered two separate final judgments awarding fees, one jointly for defendants Bjornstad, Alaska Surgery Center, Inc., Alaska Surgery Center, Ltd., and HealthSouth, and the other jointly for Dr. McGuire and Lake Otis Professional Center, LLC. So far as we can tell based on the limited arguments on appeal on this issue, only the two joint venturer defendants (Health South and Dr. McGuire) had a valid basis for seeking disqualification of LBB as plaintiffs' counsel. The LBB dispute therefore would have been thoroughly litigated even if the plaintiffs had not sued the other defendants. We assume that because the other defendants were also parties, the disqualification dispute required them to incur some additional fees, apart from fees necessarily incurred by the two joint venturer defendants in successfully challenging LBB's representation. Separating out the other defendants' incremental fees incurred as a result of the disqualification dispute may be difficult. It may also be a needless exercise if on remand the two joint venturer defendants ultimately prevail and become eligible to recover Rule 82 fees, including enhanced fees, and if the court again enters two judgments for the two groups of defendants jointly covered by each judgment. The superior court in its discretion may wish to hold in abeyance the enhanced fee issue.\\nHaving vacated the Rule 68 awards to defendants Bjornstad, Alaska Surgery Center, Inc., Alaska Surgery Center, Ltd., and Lake Otis Professional Center, LLC, all of whom remain prevailing parties, we remand for a redetermination of the Rule 82 fees to be awarded those defendants.\\nIV. CONCLUSION\\nBecause questions of material fact exist as to (1) what fiduciary duties Dr. McGuire and HealthSouth owed the plaintiffs and (2) whether the defendants breached those duties, we REVERSE the grant of summary judgment on the fiduciary duty and contract claims and REMAND for further proceedings. We AFFIRM the grant of summary judgment as to defendants Louise Bjornstad, Alaska Surgery Center, Inc., Alaska Surgery Center, Ltd., and Lake Otis Professional Center, LLC.\\nBecause Dr. McGuire and HealthSouth are no longer prevailing parties, we VACATE their Rule 68 and Rule 82 attorney's fees awards. Because the offers of judgment were invalid, we REVERSE the Rule 68 attorney's fees awards to all defendants. We VACATE the Rule 82 awards and REMAND for reconsideration of the Rule 82 awards for the non-joint venturer defendants in light of this opinion.\\nFABE, Chief Justice, and MATTHEWS, Justice, not participating.\\n. This description of the facts is taken from the pleadings and materials filed by the parties on summary judgment. Because the superior court entered summary judgment for the defendants, we take all permissible factual inferences in favor of the plaintiffs. In describing the facts in this fashion we are not resolving possible factual disputes. To the extent that there are factual disputes, they will have to be litigated in accordance with the legal conclusions reached in this opinion.\\n. Former AS 18.07.031 provided that:\\n(a) No person may make an expenditure of $1,000,000 or more for any of the following unless authorized under the terms of a certificate of need issued by the office:\\n(1) construction of a health care facility;\\n(2) alteration of the bed capacity of a health care facility; or\\n(3) addition or elimination of a category of health services provided by a health care facility-\\n. At the time of sale, the Advances joint venturers included Drs. Beal, Chandler, Coles, McGuire, Nathanson, Norman, Gills, and Sitter.\\n. Ch. 18, \\u00a7 1,2, SLA 2000.\\n. Ch. 48, \\u00a7 1-3, SLA 2004.\\n. The original complaint asserted that the role of Alaska Surgery Center, Ltd. is \\\"unclear\\\" but that it \\\"relates to operation of the Alaska Surgery Center.\\\"\\n. Rockstad v. Erikson, 113 P.3d 1215, 1219 (Alaska 2005) (citing Ellis v. City of Valdez, 686 P.2d 700, 702 (Alaska 1984)).\\n. Id. at 1219 (citing Witt v. State, Dep't of Corr., 75 P.3d 1030, 1033 (Alaska 2003)).\\n. Indus. Commercial Elec., Inc. v. McLees, 101 P.3d 593, 597 (Alaska 2004) (citing Alaska Rent-A-Car, Inc. v. Ford Motor Co., 526 P.2d 1136, 1139 (Alaska 1974)).\\n. Maines v. Kenworth Alaska, Inc., 155 P.3d 318, 323 (Alaska 2007) (quoting Martech Constr. Co. v. Ogden Envtl. Servs., Inc., 852 P.2d 1146, 1149 n. 7 (Alaska 1993)) (internal quotations omitted).\\n. K & K Recycling, Inc. v. Alaska Gold Co., 80 P.3d 702, 724 n. 66 (Alaska 2003) (citing Robles v. Shoreside Petroleum, Inc., 29 P.3d 838, 841 (Alaska 2001)).\\n. Norville v. Carr-Gottstein Foods Co., 84 P.3d 996, 1000 n. 1 (Alaska 2004).\\n. Id. (citing Alaska Diversified Contractors, Inc. v. Lower Kuskokwim Sch. Dist., 778 P.2d 581, 584 (Alaska 1989)).\\n. Monzingo v. Alaska Air Group, Inc., 112 P.3d 655, 659 (Alaska 2005) (quoting K & K Recycling, Inc., 80 P.3d at 712).\\n. Neal & Co., Inc. v. Ass'n of Vill. Council Presidents Reg'l Hous. Auth., 895 P.2d 497, 502 (Alaska 1995) (citing Peterson v. Wirum, 625 P.2d 866, 870 & n. 7 (Alaska 1981)).\\n. Balough v. Fairbanks N. Star Borough, 995 P.2d 245, 254 (Alaska 2000) (citing Davila v. Davila, 908 P.2d 1027, 1031 (Alaska 1995)).\\n. Id. (citing Buster v. Gale, 866 P.2d 837, 846 n. 9 (Alaska 1994)).\\n. Glamann v. Kirk, 29 P.3d 255, 259 (Alaska 2001) (citing Philbin v. Matanuska-Susitna Borough, 991 P.2d 1263, 1266 (Alaska 1999)).\\n. Ellison v. Plumbers & Steam Fitters Union Local 375, 118 P.3d 1070, 1073-74 (Alaska 2005) (citing Thomann v. Fouse, 93 P.3d 1048, 1050 (Alaska 2004)).\\n. The plaintiffs also argue that the court erred by granting summary judgment on their breach of contract claim. As far as we can see from the briefing on appeal, the fiduciary duty and contract claims are essentially coextensive. Although we do not address the contract claim separately, we do not mean to imply that the parties are foreclosed from litigating it on remand.\\n. Old Harbor Native Corp. v. Afognak Joint Venture, 30 P.3d 101, 106 (Alaska 2001) (citing Nat'l Soil Servs., Inc. v. Hurst, 630 P.2d 3, 7 (Alaska 1981)); Mathis v. Meyeres, 574 P.2d 447, 449 (Alaska 1978) (partnership is fiduciary relationship); see also Meinhard v. Salmon, 249 N.Y. 458, 164 N.E. 545, 546 (1928) (refusing to allow party to take advantage of new business opportunity without revealing full details to joint venturer).\\n. Nat'l Soil Servs., 630 P.2d at 7 (citing Note, Apparent Authority and the Joint Venture: Narrowing the Scope of Agency Between Business Associates, 13 U.C. Davis L.Rev. 831, 857 n. 132 (1980) (\\\"The scope of fiduciary duties owed between partners inter se is often broader from that owed by joint venturers inter se.\\\")).\\n. The defendants cite to the law review note which we cited in National Soil Services. Note, supra note 22, at 857 n. 132. That law review note stated:\\nWhile joint venturers, like partners, owe each other a fiduciary duty as to matters relating to the specific undertaking, or in the formation of the association, the fiduciary duly is less with respect to outside and possibly competing interests. In a partnership the fiduciary duly prevents any competition by a partner with the partnership business; in the joint venture it is understood at the outset that the individual business pursuits of the members are not thus to be restricted by the mere union of the parties in an isolated venture.\\nId. (internal quotations and citations omitted) (emphasis added). The plaintiffs' fiduciary duty claim here primarily asserts interference with or destruction of opportunities directly related to the ownership and management of Condominium A. Because the fiduciary breach alleged here relates to the primary undertaking of the joint venture, any arguable justification for distinguishing between joint venturer and partner fiduciary duty would not apply here.\\n. AS 32.06.201-.997.\\n. AS 32.06.960 (\\\"[Rjelations between and among the partners and between the partners and the partnership are governed by the partnership agreement.\\\").\\n. Id.\\n. Although former AS 32.05 was in effect when the joint venture was formed in 1981, we conclude that the current version of the UPA, as codified in AS 32.06, applies to this dispute. When it enacted AS 32.06 in 2000, the legislature stated that \\\"[o]n or after January 1, 2004, secs. 1-7 of this Act apply to all partnerships and limited liability partnerships.\\\" Ch. 115, \\u00a7 10, SLA 2000. The new act contained a savings clause that stated the new UPA would \\\"not affect an action or proceeding begun or a right accrued before January 1, 2001.\\\" Ch. 115, \\u00a7 11, SLA 2000. The rights at issue in this case did not accrue before 2001, the year in which the defendants relocated Alaska Surgery Center, Inc. from 4001 Laurel Street to the new facility on Lake Otis. The plaintiffs did not file their complaint until April 2003. Because neither of these events occurred before January 1, 2001, the savings clause does not apply in this case.\\n. AS 32.06.404(b)(1) & (3).\\n. AS 32.06.404(d).\\n. AS 32.06.960(b)(3)(A).\\n. Former AS 32.05.130 provided that \\\"[t]he rights and duties of the partners in relation to the partnership shall be determined, subject to any agreement between them,\\\" by the rules outlined in that statute. (Emphasis added.) The equivalent provision in the applicable version of the UPA is AS 32.06.960(a). It provides that \\\"relations between and among the partners and between the partners and the partnership are governed by the partnership agreement. To the extent the partnership agreement does not otherwise provide, [AS 32.06] governs relations between and among the partners and between the partners and the partnership.\\\"\\n. The plaintiffs also imply that the defendants did not preserve their section 13.07 argument in the superior court. Even though the defendants argue for the first time on appeal that section 13.07 limits their fiduciary duties, this theory closely relates to their properly preserved contention that section 2.05 limited the duty owed. We therefore consider these two theories together. See Sea Lion Corp. v. Air Logistics of Alaska, Inc., 787 P.2d 109, 115 (Alaska 1990) (\\\"Arguments are considered on appeal if raised explicitly in the superior court, or if the issue is '1) not dependent on any new or controverted facts; 2) closely related to the appellant's trial court arguments; and 3) could have been gleaned from the pleadings,' or if failure to address the issue would propagate 'plain error.' \\\" (quoting State v. Nw. Constr., Inc., 741 P.2d 235, 239 (Alaska 1987))).\\n. The original joint venture agreement of 1981 defined \\\"Partnership\\\" to mean \\\"joint venture.\\\" The 1982 agreement does not define \\\"Partner\\\" or \\\"Partnership.\\\" The 1981 agreement also defined \\\"Majority-in-interest of the Partners\\\" to mean: \\\"one (1) or more of the Partners who at the time are entitled to an aggregate of seventy percent (70%) or more of the net profits and/or losses then allocable to all Partners then living and not incompetent, Bankrupt or Insolvent, pursuant to the provisions hereof.\\\" Because each of the nine joint venturers had an equal ownership share, the majority-in-interest was seven or more of the joint venturers. The 1982 agreement defines \\\"Majority-in-interest\\\" in substantially similar terms.\\n34. We assume the term \\\"Property\\\" was intended in context to refer either to 4001 Laurel Street or to Condominium A.\\n. Leisnoi, Inc. v. Stratman, 956 P.2d 452, 454 (Alaska 1998) (citing Municipality of Anchorage v. Gentile, 922 P.2d 248, 256 (Alaska 1996)).\\n. Id. at 454 (citing Gentile, 922 P.2d at 256 n. 5).\\n. AS 18.07.031(c).\\n. Section 5.04 states that the joint venturers cannot, \\\"without the consent of the Majority-in-Interest of the Partners . (v) do any act detrimental to the best interests of the Partnership; or (vi) do any act which would make it impossible to carry on the business of the Partnership.\\\" Per the joint venture agreement, any seven Advances members together would be entitled to seventy percent of Advances's profit and thereby be the joint venture's majority-in-interest. For a definition of \\\"Majority-in-interest of the Partners,\\\" see note 33.\\n. Starr v. Int'l Realty, Ltd., 271 Or. 396, 533 P.2d 165, 169 (1975).\\n. Id. at 166-67.\\n. Id. at 169 (internal quotations omitted).\\n. Wirum & Cash, Architects v. Cash, 837 P.2d 692, 701 (Alaska 1992).\\n. Id. at 701 (quoting Skone v. Quanco Farms, 261 Cal.App.2d 237, 68 Cal.Rptr. 26, 29 (1968)).\\n. Id. (citing Starr, 533 P.2d at 168-69).\\n. The plaintiffs argued in the superior court that Dr. McGuire and HealthSouth were liable for attempting to influence the legislative process. They have not renewed this argument on appeal. There is consequently no need to consider whether the superior court was correct in holding that the Noeir-Pennington doctrine shielded the defendants from liability for seeking the 2000 legislative changes.\\n. E. R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961).\\n. United Mine Workers v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965).\\n. Noerr, 365 U.S. at 136, 81 S.Ct. 523.\\n. Azzar v. Primebank, FSB, 198 Mich.App. 512, 499 N.W.2d 793, 795-96 (1993) (holding that bank directors' actions in successfully petitioning Federal Home Loan Bank Board to oppose shareholders' attempt to acquire bank stock was attempt to influence governmental action and immune from liability for breach of fiduciary duty).\\n. Cf. Gunderson v. Univ. of Alaska, Fairbanks, 902 P.2d 323, 329 (Alaska 1995) (quoting Liberty Lake Invs., Inc. v. Magnuson, 12 F.3d 155, 158 (9th Cir.1993)) (holding that \\\"[a]llegations of fraud and misrepresentation in the judicial pro cess will only block Noerr-Pennington immunity when such allegations go 'to the core of a lawsuit's legitimacy' see also Cheminor Drugs, Ltd. v. Ethyl Corp., 168 F.3d 119 (3d Cir.1999) (stating that \\\"[w]hile we do not condone misrepresentations in a judicial setting, neither will we deprive litigants of immunity derived from the First Amendment's right to petition the government if the alleged misrepresentations do not affect the core of the litigant's . case\\\").\\n. AS 18.07.081(d) provides that a CON may be revoked if:\\n(1)the sponsor has not shown continuing progress toward commencement of the activities authorized under AS 18.07.041 or 18.07.043 after six months of issuance;\\n(2) the applicant fails, without good cause, to complete activities authorized by the certificate;\\n(3) the sponsor fails to comply with the provisions of this chapter or regulations adopted under this chapter;\\n(4) the sponsor knowingly misrepresents a material fact in obtaining the certificate;\\n(5) the facts charged in an accusation filed under (c) of this section are established; or\\n(6) the sponsor fails to provide services authorized by the terms of the certificate.\\n. Ch. 275, \\u00a7 4, SLA 1976.\\n. Greenwood Manor v. Iowa Dep't of Pub. Health, State Health Facilities Council, 641 N.W.2d 823, 837 (Iowa 2002) (holding that petitioning nursing facilities had failed to demonstrate establishment of property interest in competitor facility's certificate of need application).\\n. Downriver Nursing Assocs. v. Michigan Dep't of Pub. Health, 193 Mich.App. 594, 484 N.W.2d 748, 751 (1992) (holding that state did not deprive plaintiff of use of its property interest).\\n. Id. at 751 (quoting Gulf Court Nursing Ctr. v. Dep't of Health & Rehabilitative Servs., 483 So.2d 700, 708 (Fla.App.1985)).\\n. Watkins v. Restorative Care Ctr., 66 Wash.App. 178, 831 P.2d 1085, 1090 (1992).\\n. Id. at 1090 (emphasis in original).\\n. Valley Hosp. Ass'n v. Mat-Su Coal. for Choice, 948 P.2d 963, 970 (Alaska 1997).\\n. S. Cent. Health Planning & Dev., Inc. v. Comm'r of Dep't of Admin., 628 P.2d 551, 553 (Alaska 1981) (\\\"If there is a surplus of similar facilities in the area there may be unnecessary duplication of health resources.\\\").\\n. Valley Hosp., 948 P.2d at 970 (concluding that CON program created type of health care monopoly in only hospital serving Mat-Su Valley).\\n. Dr. Nathanson stated in his 2006 affidavit that Advances was \\\"being told that it is not likely another CON will be issued in the near future for an ambulatory surgery center in the Anchorage area.\\\" Dr, McGuire testified in his deposition that he had recommended that HealthSouth pursue legislative change to the law in the late nineties because he believed it would be \\\"difficult\\\" to obtain a new CON.\\n. Ch. 275, \\u00a7 4, SLA 1976.\\n. AS 18.07.081(d)(6).\\n.See, e.g., AS 18.07.081(d)(6).\\n. Wirum & Cash, Architects v. Cash, 837 P.2d 692, 712 (Alaska 1992) (concluding that, because partner had entrusted his wife to manage partnership's financial records, wife also owed fiduciary duty to partnership).\\n. Ellison v. Plumbers & Steam Fitters Union Local 375, 118 P.3d 1070, 1077 (Alaska 2005) (applying Restatement test to claims against third parties for aiding and abetting discrimina tion (quoting Restatement (Second) of Torts \\u00a7 876(b) (1979))).\\n. Rathke v. Corr. Corp. of America, Inc., 153 P.3d 303, 312 (Alaska 2007) (quoting Jones v. Cent. Peninsula Gen. Hosp., 779 P.2d 783, 791 (Alaska 1989)); see also Domke v. Alyeska Pipeline Serv. Co., 137 P.3d 295, 307 (Alaska 2006) (citing Jensen v. Alaska Valuation Serv., Inc., 688 P.2d 161, 162-63 (Alaska 1984)) (recognizing that agents cannot be personally liable for breach of contract if both their agency and identity of principal are disclosed).\\n. Jones, 779 P.2d at 791.\\n. Ch. 18, \\u00a7 1-2, SLA 2000.\\n. Ch. 48, \\u00a7 1-3, SLA 2004.\\n. Because Dr. McGuire did not make a valid offer of judgment to Dr. Gills, the court concluded that Dr. Gills would, under Rule 82, be liable for only twenty percent of the attorney's fees Dr. McGuire incurred after LBB was disqualified.\\n. Ellison v. Plumbers & Steam Fitters Union Local 375, 118 P.3d 1070, 1078 (Alaska 2005) (vacating Rule 82 awards for work performed before settlement offers were made while retaining higher Rule 68 fees awards for work performed after settlement offers).\\n. The defendants argue that the Rule 68 and Rule 82 fees awards correspond to \\\"entirely separate actions,\\\" because the plaintiffs changed counsel, amended their complaint, and engaged in more extensive discovery once the issue of LBB's disqualification had been resolved. These circumstances do not establish that there were two different cases. Nor are awards under both rules necessary to hold plaintiffs responsible for their \\\"vexatious conduct related to the inappropriate use of LBB.\\\"\\n. Alaska R. Civ. P. 68.\\n. AS 09.30.065; Alaska R. Civ. P. 68.\\n. AS 09.30.065(a)(1); Alaska R. Civ. P. 68.\\n. Warr v. Williamson, 359 Ark. 234, 195 S.W.3d 903, 904 (2004); Century 21 Today Inc., v. Tarrant, No. 240696, 2003 WL 22443624, 1 (Mich.App.2003).\\n. Warr, 195 S.W.3d at 907 (reversing Rule 68 fee award based on defendant's one dollar offer of judgment and stating that to obtain protection and benefit of Rule 68, \\\"a defendant must make a good faith offer, or in other words, an offer sufficient to compel the plaintiff to reassess his or her case. It is difficult to imagine any circumstances under which an offer of one dollar would compel a plaintiff to seriously consider settling a case\\\"); Century 21, 2003 WL 22443624 at 1 (holding tried court did not err in declining to award defendants attorney's fees based on one dollar offer of judgment and stating, first, that \\\"where a party employs gamesmanship by mak ing a de minimis offer of judgment early in a case in the hopes of tacking attorney fees to costs if successful at trial, and the party's objective is not settlement\\\" and, second, that one dollar offer has \\\"little if any chance of seriously opening negotiations or of settling a case,\\\" it would be hard to construe it as \\\"genuine attempt at settlement\\\").\\n. Lowell v. Hayes, 117 P.3d 745, 760 n. 76 (Alaska 2005).\\n. Id. (citing Beattie v. Thomas, 99 Nev. 579, 668 P.2d 268, 274 (1983) (requiring courts evaluating validity of offers of judgment to consider: (1) whether plaintiff's claim was brought in good faith; (2) whether defendants' offer of judgment was reasonable and in good faith in both its timing and amount; (3) whether plaintiff's decision to reject offer and proceed to trial was grossly unreasonable or in bad faith; and (4) whether fees sought by offeror are reasonable and justified in amount)).\\n.Id.\\n. Id.\\n. The defendants served their offers of judgment between June and October 2003. Although HealthSouth, Dr. McGuire, and Alaska Surgery Center, Inc. had filed counterclaims before making their offers, defendants Alaska Surgery Center, Ltd. and Louise Bjornstad did not file their counterclaims until long after their offer expired.\\n. Beattie, 668 P.2d at 274; see Warr, 195 S.W.3d at 907.\\n. Progressive Corp. v. Peter ex rel. Peter, 195 P.3d 1083, 1088 (Alaska 2008).\\n. See Fernandes v. Portwine, 56 P.3d 1, 9 (Alaska 2002).\\n. Municipality of Anchorage v. Anchorage Police Dep't Employees Ass'n, 839 P.2d 1080, 1091-92 (Alaska 1992) (quoting State v. Univ. of Alaska, 624 P.2d 807, 817 (Alaska 1981)); see Alaska R. Civ. P. 82(b)(3)(G).\\n. Id. at 1092 (quoting Moses v. McGarvey, 614 P.2d 1363, 1368-69 (Alaska 1980)).\\n. We also note that if the joint venture defendants are not prevailing parties on remand, a Rule 82 award of partial fees to the other defendants may raise allocation issues.\"}"
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+"{\"id\": \"8200209\", \"name\": \"Victoria FERGUSON, Appellant, v. James FERGUSON, Appellee\", \"name_abbreviation\": \"Ferguson v. Ferguson\", \"decision_date\": \"2008-10-16\", \"docket_number\": \"No. S-12837\", \"first_page\": \"127\", \"last_page\": \"134\", \"citations\": \"195 P.3d 127\", \"volume\": \"195\", \"reporter\": \"Pacific Reporter 3d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T18:08:00.402760+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, CARPENETI, and WINFREE, Justices.\", \"parties\": \"Victoria FERGUSON, Appellant, v. James FERGUSON, Appellee.\", \"head_matter\": \"Victoria FERGUSON, Appellant, v. James FERGUSON, Appellee.\\nNo. S-12837.\\nSupreme Court of Alaska.\\nOct. 16, 2008.\\nRehearing Denied Nov. 18, 2008.\\nAllison E. Mendel, Mendel & Associates, Anchorage, for Appellant.\\nAndrew Josephson, Law Offices of Dan Allan & Associates, Anchorage, for Appellee.\\nBefore: FABE, Chief Justice, MATTHEWS, EASTAUGH, CARPENETI, and WINFREE, Justices.\", \"word_count\": \"3821\", \"char_count\": \"24376\", \"text\": \"OPINION\\nFABE, Chief Justice.\\nI. INTRODUCTION\\nVictoria Ferguson appeals the superior court's order denying her motion to modify the child support agreement she entered into with her former husband, James Ferguson. She argues that the lower court failed to make an adequate inquiry into the facts underlying her claim and that it mistakenly concluded that no change of cireumstances could justify a modification. Victoria also appeals the lower court's award of attorney's fees. Because the Fergusons' prior agreement contemplated Victoria's current ciream-stances, Victoria has already received the maximum amount of child support available under Alaska Rule of Civil Procedure 90.3. And the trial court properly concluded that Victoria can adequately provide for her children's needs. Finally, the award of attorney's fees fell within the superior court's discretion. We therefore affirm the lower court's decision in all respects.\\nII. FACTS AND PROCEEDINGS\\nJames (Jim) and Victoria Ferguson were married in 1984. They had three children together, the oldest of whom is now eighteen. They divorced in September 2001. Prior to the divorce, Jim and Victoria agreed to a division of their real estate and investment assets, and they formed a parenting plan that addressed custody, visitation schedules, and child support, among other issues. Superior Court Judge Sen K. Tan found that the Fergusons' agreement represented \\\"a fair and equitable distribution of the marital as sets\\\" that served \\\"the best interests of the children.\\\" Accordingly, the lower court incorporated the settlement terms into its divorce decree.\\nJim and Victoria agreed to an unequal property division under which Victoria was to receive $233,000 more of the marital assets than Jim in lieu of future child support payments. Victoria was also to receive $60,000 worth of assets as a lump sum spousal maintenance payment. The parenting plan contemplated \\\"shared physical custody consisting of a minimum time of 30%-50% of the time with either parent\\\" after a one-year transitional visitation plan. But the agreement clarified that \\\"[tlhough the parties will have shared physical custody beginning August 1, 2002, the child support calculations are based on the mother having primary physical custody of the minor children throughout their minority.\\\" A table accompanying the plan indicates that the parties calculated child support on the basis that Jim would earn an adjusted income of $100,000, an amount that exceeded the $84,000 cap established by Civil Rule 90.3 at the time.\\nThe superior court closely serutinized the Fergusons' child support agreement, expressing concern about the lump-sum payment of future support obligations. Judge Tan noted, \\\"I don't know if I can set child support prospectively and essentially by agreement, remove the right to file a modification.\\\" Victoria's counsel at the time reassured the court, insisting that the Fergusons' arrangement was appropriate in the \\\"unusual cireumstance\\\" in which \\\"people can afford to prepay child support.\\\" Victoria's counsel added that \\\"both parties understand that they've agreed on a certain physical [eusto-dy] arrangement today and that arrangement may change . [but] that is not going to change this child support arrangement.\\\" Finally, Jim's counsel pointed out that the parties calculated the child support \\\"according to [Civil Rule] 90.3\\\" and that the calculation \\\"uses an annual salary of $100,000 rather than the minimum [$84,000], so if that-even if that amount did increase pursuant to [Civil Rule] 90.3, it's already taken that into account.\\\"\\nFollowing the divorce, the Fergusons soon resumed litigation that led to the appointment of a custody investigator and a guardian ad litem. For four years after the divorce, Victoria did not work because she suffered from \\\"debilitating depression.\\\" During this time, she liquidated many of her investments and the real estate assets she had received in the divorce settlement and withdrew funds from her IRA to maintain her household. On May 6, 2004, the superior court issued a revised custody order that mandated \\\"strict application of the week-on week-off schedule.\\\" In February 2005 Victoria resumed her former career as an engineer and began earning a gross income of $102,000.\\nOn October 30, 2006, Victoria filed a motion to modify child support, alleging that over the past year \\\"all three children increasingly . spent more time\\\" with her. Victoria argued that the existing child support arrangement was inadequate in light of this \\\"de facto change in the custody schedule.\\\" Her motion alleged that \\\"none of the property that Victoria received as lump sum child support was actually liquid\\\" and that \\\"the parties took no account of the costs of sale or taxes to liquidate the property.\\\" Consequently, Victoria reasoned, \\\"[t]he current arrangement is not meeting the needs of the children and needs to be modified.\\\" Jim filed a cross-motion to retroactively modify child support in case the trial court decided to \\\"reopen the child support issue.\\\"\\nSuperior Court Master Suzanne R. Cole conducted hearings on February 27 and May 15, 2007. During the first hearing, Master Cole identified Victoria's assertion of changed cireumstances as a threshold issue and indicated that she \\\"would like to rule on that before we get to income calculations.\\\" The master then set another hearing limited to the change of cireumstances issue. After that second hearing, the master concluded that Victoria had failed to demonstrate a change of cireumstances and therefore issued a recommendation without considering evidence on factors that might have informed the extent of an award modification.\\nIn her recommendation to the superior court, Master Cole rejected Victoria's argument that the parties had overlooked the liquidation penalties associated with the settlement assets. The master reasoned that Victoria had knowingly entered into the settlement, which was \\\"carefully crafted with the assistance of counsel, and subjected to close serutiny by the court.\\\" According to the master, the parties \\\"were aware that most of the assets were not liquid and would bear tax consequences.\\\"\\nThe master also rejected Victoria's argument that the children's increased time in her household represented a material change in cireumstances. The master pointed out that the Fergusons' agreement \\\"anticipated a fluid custody arrangement and calculated support based upon primary custody to Ms. Ferguson to permit such fluidity.\\\" Because the Fergusons' division of property provided Victoria with \\\"the maximum child support under the fiction of primary custody to Ms. Ferguson,\\\" Master Cole reasoned that it \\\"already gave her what she now argues for-a primary custody caleulation.\\\" Master Cole further concluded that the finality of the property division bestowed benefits upon both sides, with Jim unable to \\\"pursue his colorable claims for modification such as his reduced income, imputed income for her, or child support when he had primary custody.\\\"\\nThe master distinguished the case law cited by Victoria in support of modifying the child support agreement, giving particular attention to State, Department of Revenue, Child Support Enforcement Division v. Green That case involved a parent who exhausted a lump-sum payment of child support and had to rely on state benefits to adequately meet the needs of her child. Master Cole pointed out that no court had approved the agreement at issue in Green, and that \\\"[ulnlike the obligee in Green, Ms. Ferguson is not on the edge of poverty. Her children's needs are more than adequately met.\\\" Finally, Master Cole addressed extraordinary expenses, which the Fergusons had agreed in the original parenting agreement to share provided they were \\\"mutually agree[d] on.\\\" Master Cole recommended that the Fergusons divide these expenses equally for \\\"any activities in which the children are currently participating.\\\"\\nOn June 29, 2007, before the superior court had decided whether to adopt the master's report, Jim filed a motion for attorney's fees. On July 10 Victoria filed objections to the master's report, alleging factual and legal errors. Jim opposed the objections, and on July 26 Judge Tan adopted the master's ree-ommendation. The superior court ordered Victoria to file any opposition to the motion for attorney's fees within ten days. Victoria disputed several items in the attorney billing statements and in his reply Jim revised his fee request downward from $7,829 to $6,834. Eventually, Judge Tan ordered Victoria to pay $2,050.20, or thirty percent of Jim's actual reasonable fees of $6,834.\\nVictoria appeals.\\nIII STANDARD OF REVIEW\\nWe review a trial court's decision to modify or deny modification of a child support order for abuse of discretion. We will find an abuse of discretion only where the record as a whole leaves us with a definite and firm conviction that a mistake has been made. The award of attorney's fees in a divorcee action also rests within the broad discretion of the trial court and will not be disturbed on appeal unless it is \\\"arbitrary, capricious, or manifestly unreasonable.\\\"\\nIV. DISCUSSION\\nA. The Trial Court Did Not Abuse Its Discretion when It Determined that Victoria Failed To Demonstrate a Change of Circumstances that Requires Modification of Child Support.\\nVictoria argues that the lower court incorrectly based its decision on the Fergu- sons' intentions as they entered into their divoree settlement rather than the children's best interests or the evolution of the Fergu-sons' cireumstances following the divorce. Quoting our decision in Bunn v. House, Vice-toria points out that \\\"courts have a special duty with regard to the support of children whose parents have divorced....\\\" Victoria suggests that this duty should have led the lower court to modify support because \\\"the children need additional support\\\" and \\\"their mother is unable to support them at the expected level.\\\" Victoria contends that her inability to provide this \\\"expected level\\\" of support stems from changed cireumstances, namely her unemployment following the divorce, her nearly exclusive custody of the children, and the tax consequences of liquidating the assets that she received in the divorce settlement.\\nBut the divorce settlement expressly contemplated all of the cireumstances that Vieto-ria now cites. As Jim points out, the parties' calculation of child support imputed no income to Victoria, and thus her unemployment triggered no change in cireumstances. Similarly, Victoria's custody of the children fails to support her claim for modification because the Fergusons' settlement stipulates that \\\"the child support calculations are based on the mother having primary physical custody of the minor children throughout their minority.\\\" Finally, Victoria fails to sustain her claim that the settlement inadequately accounted for the taxes and other costs associated with liquidating the assets she received. The record indicates that Victoria fairly bargained for the settlement agreement with the assistance of counsel and that her attorney strongly advocated that the agreement be accepted by the trial judge. And the property agreement itself expressly recognizes each party's right to seek the advice of a tax professional.\\nVictoria contends that even accepting these allegations as true-along with the lower court's finding that Victoria's $102,000 annual salary enables her to adequately meet the children's needs-the law does not support the lower court's ruling against her. In support of this claim, she cites our decisions in Flannery v. Flannery, Arndt v. Arndt, State, Department of Revenue, Child Support Enforcement Division v. Green, and State, Department of Revenue, Child Support Emforeement Division v. Pealatere. Victoria strains to draw a persuasive analogy between these cases and her own.\\nVictoria emphasizes our holding in Flon-nery that \\\"particular terms\\\" of a child support agreement will not \\\"totally restrict the court's ability to modify it so long as a change of cireumstances is proven.\\\" In Flannery, a father sought relief under Alaska Rule of Civil Procedure 90.3(Lh)(1) from a private agreement to calculate child support payments on income exceeding the Civil Rule 90.3(c)(2) cap. We rejected the father's claim that his decrease in salary should trigger the \\\"fifteen percent rule,\\\" Civil Rule 90.3(h)(1)'s presumption of a change in circumstances. We also rejected the father's argument that his taking custody of two of the couple's children supported his claim for modification because that custody had already triggered a decrease in his obligations and \\\"for there to be a substantial change of cireumstance, something must occur which was not contemplated by the parties at the time they had entered into their initial agreement.\\\" We nevertheless remanded for a determination of \\\"whether any reduction in income is permanent or temporary, instruct, ing the trial court to use its discretion to modify the child support award if there was a permanent change.\\nBut while the father in Flannery sought to reduce his payments to a level within or closer to the cap, Victoria seeks additional payments that would exceed the statutory cap. Victoria maintains that \\\"the cash value\\\" of her property settlement \\\"was actually much less than represented in the agreement.\\\" Yet she does not allege that she received less than the maximum award allowed under Rule 90.3, conceding that the child support agreement provided \\\"an amount higher than the Rule required.\\\" Thus, the modification that Victoria seeks would award her more than the maximum amount that the law entitled her to receive in the first place.\\nVictoria argues that the lump-sum nature of the child support award should militate in her favor. Quoting Arndt v. Arndt, Victoria argues that there \\\"should not be a trade-off\\\" between property divisions and child support awards. Like Flannery, Arndt involved an obligor parent's attempt to reduce a child support obligation. 'The non-obligor parent argued that the parties' unequal property division implied that some of the child support in fact represented \\\"disguised alimony.\\\" We rejected that argument for the simple reason that \\\"[dlivision of marital property by the court is separate and distinct from questions of child support.\\\"\\nVictoria proceeds to discuss cases in which the state sought reimbursement of public assistance from an obligor parent, arguing that the lower court's reliance on State, Department of Revenue, Child Support Enforcement Division v. Green was misplaced. But Master Cole concluded that \\\"Green is clearly distinguishable.\\\" We held in Green that the state possesses an independent statutory right under AS 25.27.120(a) to recoup the cost of public assistance payments from an obligor parent, even when the obligor has prepaid child support pursuant to an agreement executed at divorce. The master noted that, unlike Victoria, the obligee in Green had agreed to a lump-sum prepayment of child support without court approval and \\\"was unable to meet the needs of her children without support\\\" from the state. Victoria characterizes the lower court's reading as unduly narrow, arguing that \\\"nothing in the [Green ] opinion either states or implies that the only children to whom an obligor who prepaid support 'continues to owe . a support duty' are those children who would otherwise be destitute.\\\" We agree with Jim that the state's claim for repayment of public assistance hardly parallels Victoria's claim for child support exceeding the $283,000 in assets that she has already received.\\nVictoria also relies on State, Department of Revenue, Child Support Enforcement Division v. Pealatere. Like Green, and unlike this case, Pealaters involved a motion by the State of Alaska to recoup public assistance. The state sought to modify the noneustodial parent's child support obligation, which the parties had agreed to offset in their division of property. We affirmed the lower court's modification of child support to $801.50 per month because the noneustodial parent had experienced \\\"a substantial rise in her income.\\\" 'We also held, however, that the superior court properly deducted $50 a month from that figure to offset the noneus-todial parent's interest in marital property against her child support obligation. Here, the marital assets that Jim relinquished in the settlement would offset any modified award that Victoria might receive. And Jim's lump-sum payment exceeded the maximum amount of child support that Victoria could have demanded under Civil Rule 90.8.\\nVictoria also claims that the superior court failed to develop an adequate factual record with respect to the children's needs, the current custody arrangement, and the reasons behind Victoria's exhaustion of the assets that she received in the property division settlement. She further alleges that the lower court made findings without sufficient factual support. 'We disagree.\\nFirst, Victoria argues that \\\"[flor purposes of analyzing whether circumstances had changed, the court should have concluded that at least two of the children were spending more than 70% of the time with their mother.\\\" But as Master Cole pointed out, the current custody arrangement served as no basis for modification because Victoria's \\\"child support calculation already gave her what she now argues for-a primary custody calculation.\\\" Similarly, Victoria's unemployment for four years offers no grounds for relief because the property settlement imputed no income to her. And although Victoria asserts that \\\"the cash value of the liquidated support was actually much less than represented in the agreement,\\\" she concedes that the parties \\\"base[dl support on an amount higher than [Civil Rule 90.3] required.\\\" She makes no allegation that under Civil Rule 90.3 she was entitled to a greater amount of child support. Finally, as the lower court observed, her settlement \\\"was carefully crafted with assistance of counsel, and subjected to close serutiny by the court.\\\"\\nVictoria's contention that the lower court made factual findings without evidentiary support is also unconvincing. She points out that the lower court made a note of Jim's shift of employment from engineering to teaching and then back to engineering. But even if this factual detail lacks support in the record, it does not appear to have influenced the lower court's analysis of the case. The same rationale blunts the point of Victoria's attack on the lower court's findings regarding the alleged $1 million value of her residence and the time that the children spent in Victoria's custody. And because the superior court correctly concluded that Victoria failed to demonstrate a substantial change of circumstances, the trial court's seope of factual inquiry was appropriately limited.\\nThis case fllustrates why prepaid child support agreements require court approval and why that approval should only be granted after a careful review of the parties' circumstances. Cireumstances can change, and it can be difficult to alter a prepayment agreement without injustice. In this case there was court approval of the prepayment agreement preceded by appropriate judicial serutiny. Although Victoria believes that a substantial change of cireumstances occurred in the five years following the agreement, the superior court master properly concluded that any altered cireumstances were contemplated by the parties at the time they entered into their initial agreement and that there was no substantial change of circumstances that justified modifying the agreement. In reaching this conclusion, the superior court master conducted appropriate proceedings, made adequate findings of fact and conclusions of law, and did not abuse her discretion.\\nB. The Trial Court Did Not Abuse Its Discretion in Awarding Attorney's Fees.\\nAlaska Rule of Civil Procedure 82 applies to proceedings governing the modifi cation of child support. The superior court ordered Victoria to pay $2,050.20, or thirty percent of Jim's $6,834 in actual reasonable fees, as prescribed under Civil Rule 82. Vic toria contends that this decision was in error.\\nIn support of her claim, Victoria repeats much of her argument that the children spend most of their time with her and that their care already strains her income. Victoria also points out that the lower court ordered Jim to share an equal part of the children's \\\"extraordinary expenses\\\" in response to her claim that Jim did not act reasonably with respect to these activities. Without further specification, Victoria reasons that \\\"[ulnder these cireumstances, it was unreasonable further to burden Victoria by an award of attorney's fees.\\\" Finally, she submits that \\\"[rlequiring Jim to bear his own costs and fees . should not impact the children's welfare since they do not depend on him for support.\\\" Because none of Viecto-ria's arguments suggest that the superior court abused its discretion, we affirm the superior court's award of attorney's fees.\\nv. CONCLUSION\\nFor the reasons discussed above, we AFFIRM the judgment of the superior court.\\n. Alaska R. Civ. P. 90.3(c)(2) (2001). The limit on income that will be considered for a child support calculation under Rule 90.3 has since risen to $100,000. See Alaska R. Civ. P. 90.3(c)(2) (2007).\\n. 983 P.2d 1249 (Alaska 1999).\\n. Id. at 1251-52.\\n. Sawicki v. Haxby, 186 P.3d 546, 550 (Alaska 2008).\\n. Id.\\n. Hopper v. Hopper, 171 P.3d 124, 129 (Alaska 2007).\\n. 934 P.2d 753, 757 (Alaska 1997). In Bunn v. House, we vacated a superior court's modification of child support where a parent argued for adopting a different method of calculation, which yielded a more than 15% change in the support award, because \\\"a change in a party's legal theory is not a change of circumstances which warrants the modification of a child support order.\\\" Id. at 758.\\n. 950 P.2d 126 (Alaska 1997).\\n. 777 P.2d 668 (Alaska 1989).\\n. 983 P.2d 1249.\\n. 996 P.2d 84 (Alaska 2000).\\n. 950 P.2d at 130-31 (citing AS 25.24.170 and Alaska R. Civ. P. 90.3(h)(1)).\\n. Id. at 132. Alaska Rule of Civil Procedure 90.3(h)(1) states:\\nA final child support award may be modified upon a showing of a material change of circumstances as provided by state law. A material change of circumstances will be presumed if support as calculated under this rule is more than 15 percent greater or less than the outstanding support order. ~\\n. Flannery, 950 P.2d at 133 (internal quotation marks omitted).\\n. Id.\\n. As a table in the parties' agreement outlines, Victoria's award reflected a calculation of the net present value of future child support payments under Civil Rule 90.3, based on Jim earning $100,000 in after-tax income. The current cap applies to adjusted annual income of over $100,000. Alaska R. Civ. P. 90.3(c)(2). At the time of the Fergusons' divorce, however, the attribution of a $100,000 salary to Jim exceeded the then statutory cap of $84,000. Alaska R. Civ. P. 90.3(c)(2) (2001).\\n. 777 P.2d at 670.\\n. Id. at 668-69.\\n. Id. at 670.\\n. Id.\\n. 983 P.2d 1249.\\n. Id. at 1256-57.\\n. 996 P.2d 84.\\n. Id. at 85.\\n. Id.\\n. Id. at 86-88.\\n. Id. at 88.\\n. See Flannery, 950 P.2d at 133.\\n. See also Patch v. Patch, 760 P.2d 526, 531 (Alaska 1988).\\n. In their settlement agreement Jim and Victoria agreed \\\"to share any extraordinary expenses such as out-of-state schools, summer camps and other such expenses that the parents mutually agree on.\\\" The lower court recognized Victoria's claim that Jim \\\"had not reasonably agreed to activities or expenses previously,\\\" and reasoned that in order to \\\"avoid further disputes, [Jim] shall split the costs of any activities in which the children are currently participating.\\\" It went on, however, to order Jim and Victoria to \\\"share the costs of any additional activities, as requested by the children, but not to exceed a single activity at any time, unless both parties agree otherwise.\\\" Thus, the lower court seems to have left the terms of the Fergusons' settlement in place.\"}"
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+"{\"id\": \"8218333\", \"name\": \"Andrew J. DAYTON, Appellant, v. STATE of Alaska, Appellee\", \"name_abbreviation\": \"Dayton v. State\", \"decision_date\": \"2009-01-16\", \"docket_number\": \"No. A-9422\", \"first_page\": \"1189\", \"last_page\": \"1194\", \"citations\": \"198 P.3d 1189\", \"volume\": \"198\", \"reporter\": \"Pacific Reporter 3d\", \"court\": \"Alaska Court of Appeals\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T22:40:58.098468+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before: COATS, Chief Judge, MANNHEIMER, Judge, and STEWART, Senior Court of Appeals Judge.).\", \"parties\": \"Andrew J. DAYTON, Appellant, v. STATE of Alaska, Appellee.\", \"head_matter\": \"Andrew J. DAYTON, Appellant, v. STATE of Alaska, Appellee.\\nNo. A-9422.\\nCourt of Appeals of Alaska.\\nJan. 16, 2009.\\nDaniel Lowery, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.\\nNancy R. Simel, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.\\nBefore: COATS, Chief Judge, MANNHEIMER, Judge, and STEWART, Senior Court of Appeals Judge.).\\n. Sitting by assignment made pursuant to IV, Section 11 of the Alaska Constitution and Administrative Rule 23(a).\", \"word_count\": \"2583\", \"char_count\": \"16614\", \"text\": \"OPINION\\nMANNHEIMER, Judge.\\nThis case requires us to clarify the limits on a judge's discretion to dismiss litigation when the plaintiff fails to adhere to pleading deadlines. As we explain in more detail below, the superior court struck Dayton's amended petition for post-conviction relief, and then dismissed his underlying lawsuit for post-conviction relief, because the amended petition was filed almost six months after the deadline set by the court. However, the amended petition was filed-and it was filed before the superior court took any action to enforce the deadline. In addition, the State never alleged that its ability to respond to Dayton's claims for post-conviction relief was defeated or even hampered by the lateness of Dayton's amended petition. Under these circumstances, the tardiness of the petition was not a proper basis for the superior court to dismiss Dayton's post-conviction relief action.\\nUnderlying facts\\nAndrew J. Dayton was convicted of first-degree sexual assault and first-degree burglary. We affirmed Dayton's convictions in Dayton v. State, 89 P.8d 806 (Alaska App. 2004).\\nIn December 2002, while Dayton's appeal was pending, he filed a pro se petition for post-conviction relief. In response, the State moved to dismiss Dayton's petition for failure to state a prima facie case for relief, Subsequently, Dayton obtained counsel to assist him in the post-conviction relief litigation, and Superior Court Judge pro tempore Jane F. Kauvar granted Dayton's attorney's request to stay further post-conviction relief proceedings until this Court resolved Dayton's pending appeal.\\nIn late April 2004, this Court issued our decision in Dayton's appeal, leading to renewed activity in Dayton's post-conviction relief litigation. On September 1, 2004, Judge Kauvar gave Dayton's attorney sixty days-until November 1, 2004. -to file a supplemental petition and additional materials in support of Dayton's claim for post-conviction relief.\\nOn January 3, 2005 (two months past the deadline), Dayton's attorney filed an affidavit from Dayton's trial counsel, Bill Murphree. Then, on April 25, 2005 (almost six months past the deadline), Dayton's attorney filed an amended petition for post-conviction relief,\\nThree weeks later, on June 13, 2005, the State filed a motion asking Judge Kauvar to strike Dayton's amended petition on two grounds: because it was filed late, and because it contained claims for relief that were not addressed in the trial counsel's affidavit.\\nOn July 27, 2005, Judge Kauvar issued an order granting the State's motion to strike Dayton's amended petition for post-convietion relief. However, Judge Kauvar did not specify the basis for her order. That is, she did not say whether she had decided to strike the amended petition because it was filed late, or because it contained claims that were not addressed in the trial attorney's affidavit, or both-or for some other reason.\\nBut eight months later, at a hearing held on March 2, 2006 to sort out the question of who would represent Dayton in this appeal, Judge Kauvar indicated that she struck the amended petition because Dayton's attorney was so tardy in filing it. The judge declared:\\nThe Court: [(The Court . tried many times, [made] many phone calls starting in March of '05 to see if Mr. Rice [i.e., Dayton's post-conviction relief attorney] was going to respond to [the] State's [motion] to dismiss the [petition]. Each time, we were told [that] Mr. Rice was working on it. [The] Court felt she had to do some thing, and the post-conviction relief [petition] was dismissed.\\nJudge Kauvar's explanation of her action apparently came as a surprise to Dayton's attorney. And when, at a subsequent representation hearing, the attorney expressed his surprise, Judge Kauvar reiterated that she had dismissed the amended petition because it was filed tardily:\\nMr. Rice I was confus[ed as to] why the Court dismissed [the amended post-conviction relief application]. Mr. Dayton filed a [pro se ] petition; the D.A. opposed, [and then] I filed an amended petition [and] an affidavit from [Mr.] Murphree [Dayton's trial attorney]... .\\n[And] when this court issued the order dismissing the petition for post-conviction relief, I was of the opinion [that] the Court issued [that order] on the merits, rather than for want of prosecution.\\nThe Court: Our office called you almost weekly to [get you to] respond.... [I] tried to get something from you to support [Dayton's petition].... It is not correct [that] you didn't know we were trying to get a response. It went on for quite a while.\\nIn summary, even though Judge Kauvar's written order did not explain her reason for striking Dayton's amended petition, Judge Kauvar subsequently declared (twice) that she took this action because the amended petition was filed late.\\nWhy it was improper for the superior court to strike Dayton's amended petition for post-conviction relief\\nOn appeal, the State concedes that the superior court should not have struck Dayton's amended petition for post-convietion relief. However, the State bases its concession of error on an erroneous interpretation of the law.\\nThe State contends that, under this Court's decision in Howarth v. State, 18 P.3d 754 (Alaska App.2000), it would have been proper for the superior court to strike Dayton's amended petition if Dayton had been represented by a lawyer appointed at public expense. However, the State takes the position that Howarth does not apply to Dayton's case because Dayton had a privately retained lawyer.\\nIn Howarth, the defendant had a court-appointed post-conviction relief attorney who was notified that the post-conviction relief action would be dismissed unless the attorney filed an amended petition. Despite this warning, the attorney never filed an amended petition or responded in any other fashion to the proposed dismissal. In the State's brief to this Court in Howarth, the State took the position that, even in such cireum-stances, the superior court had no power to dismiss the post-conviction relief action. We disagreed:\\nWe agree with the State that the superi- or court should not have dismissed Ho-warth's petition [given the facts of this case), but we are hesitant to fully adopt the State's position that a trial court is powerless to dismiss a petition for post-conviction relief until the petitioner's attorney [performs one of the actions listed in Criminal] Rule 35.1(e). We believe that a court might properly dismiss a petition for post-conviction relief if both the petitioner and the petitioner's attorney obstinately refuse to comply with Rule 85.1(e).\\nHowarth, 18 P.8d at 756 (with the citations to the rule corrected to reflect the current pertinent subsections of the rule).\\nBased on this passage from Howarth, the State now concludes that the superior court has the authority to dismiss a petition for post-conviction relief based on the defendant's attorney's failure to prosecute the action, but only if two conditions are satisfied: (1) the defendant's attorney must have been appointed to represent the defendant at public expense, and (2) the attorney must \\\"obstinately refuse\\\" to file an amended petition or otherwise respond to the proposed dismissal of the case.\\nTurning to the facts of Dayton's case, the State asserts that Dayton's attorney \\\"obstinately refused\\\" to file an amended petition because the attorney did not file the amend ed petition until months after the deadline. Nevertheless, the State suggests that the superior court may have lacked the authority to dismiss Dayton's post-conviction relief action-because Dayton's attorney was privately retained.\\nThe State's position is premised on a misreading of Howarth and a misunderstanding of the phrase \\\"obstinately refuse\\\". Dayton's case is indeed distinguishable from the circumstances presented in Howarth-but not because of who was paying for Dayton's attorney. Rather, Dayton's case is different because Dayton's attorney (unlike Howarth's attorney) did not \\\"obstinately refuse\\\" to respond to a proposed dismissal of the post-conviction relief action.'\\nDayton's attorney may have had no good exeuse for his delay in filing the amended petition for post-conviction relief, but Dayton's attorney ultimately did file the amended petition, and he filed it while the case was still pending (4.e., before Judge Kauvar took any action to enforce the previously established deadline). This is the critical distinction between Dayton's case and the facts of Howarth: Judge Kauvar dismissed Dayton's case, not because Dayton's attorney failed to file an amended petition, but as a penalty for filing the amended petition late.\\nBecause dismissal was used as a penalty for a late filing, Dayton's case is governed by the Alaska Supreme Court's decision in Met-calf v. Felee Services, 988 P.2d 1028 (Alaska 1997).\\nMetcalf was pursuing a worker's compensation claim. After receiving an adverse decision from the Workers' Compensation Board, Metcalf appealed the Board's decision to the superior court. Metcalf filed his brief on appeal, but he did not file it on time-and, because of this tardiness, the superior court dismissed Metcalfs appeal.\\nThe supreme court held that the superior court acted improperly when it dismissed Metcalf's appeal based on Metecalf's failure to file his brief within the time limit specified by the superior court. The supreme court reached this conclusion because (1) Metcalf did, in fact, file the brief, and (2) there was no showing that the tardiness of Metcalfss brief prejudiced his opponents' ability to defend the appeal:\\nEven though Metcalf unquestionably failed to timely file [his] brief [(by the deadline specified in the court's] order, the superior court had actually received the brief more than two weeks before it entered the dismissal order.... We also note that Felee Services [i.e., Metcalf's employer] and Cigna Insurance Companies [the employer's insurer] made no showing [in their motions to dismiss] that they would be prejudiced by the filing delay. For example, [the] appellees did not demonstrate that the delay would hamper their ability to controvert Metealfs claim on its merits.\\nMetcalf, 988 P.2d at 1025.\\nThe supreme court acknowledged that there might be circumstances where litigation-ending sanctions might be justified because of a litigant's egregious misconduct, if lesser sanctions were affirmatively found to be inadequate. But the supreme court concluded that Metcalfs case did not present those cireumstances:\\nGiven that [Metealfs] brief had already been lodged and that [the] appellees demonstrated no prejudice, the harsh remedy of dismissal could be justified only if there had been some controlling principle, such as a need to punish the wrongdoer, deter like conduct, preserve the integrity of the fact finding process, or protect the dignity of the court. The superior court identified no such justification. The failure to abide by the court's extension order might well have justified imposition of some sanction, and had [the] appellees demonstrated that they incurred unnecessary costs, some appropriate remedy might have been fashioned. Those cireumstances themselves, however, would not justify complete dismissal of Metcalf's appeal. We also note that there is no reason to think [that the] delay worked in Metealf's favor, such that only dismissal could prevent Metcalf from using delay to his benefit. The record does not suggest that the court considered, and rejected as ineffective, any less extreme sanction or remedy. CL. Underwriters at Lloyd's [of] London v. The Narrows, 846 P.2d 118 (Alaska 1998) (setting aside [a] default judgment imposed as [a] sanetion for [the] defendant's discovery violation where the trial court failed to consider the effectiveness of any lesser sanction).\\nId.\\nWhen we apply the holding in Metcalf to the facts of Dayton's case, we conclude that Judge Kauvar acted improperly when she dismissed Dayton's amended petition for post-conviction relief.\\nIt is true that Dayton's amended petition was filed late-indeed, quite late-and Dayton's attorney offered little or no justification for his failure to meet the court's filing deadline. Nevertheless, the amended petition was filed.\\nWhen the State filed its motion asking Judge Kauvar to strike the late-filed pleading, the State did not assert that its ability to litigate the post-conviction relief action had been prejudiced by Dayton's tardiness. Instead, the State merely argued that it was \\\"outrageous\\\" to allow Dayton \\\"to amend his application at this late date\\\".\\nDespite the State's failure to allege, much less prove, that it had been prejudiced because of Dayton's tardiness, Judge Kauvar imposed the litigation-ending sanction of striking the amended petition. At the time, she did so without explanation.\\nWe acknowledge that, in her later remarks at the representation hearings of March and April 2006, Judge Kauvar explained that her staff had repeatedly contacted Dayton's attorney, asking when he might be expected to file the amended petition, and that the attorney's repeated response to these inquiries was that he was \\\"working on it\\\". Judge Kauvar declared that, in the face of these responses, she \\\"felt [that] she had to do something\\\"-and, for this reason, \\\"the post-conviction relief motion was dismissed\\\".\\nThe continued inaction of Dayton's attorney might well have justified Judge Kauvar in \\\"dofing] something\\\". But under Metcalf, even when a litigant flouts the court's deadlines, if the litigant ultimately files the required pleadings while the case is still pending, a litigation-ending sanction is not appropriate unless the litigant's opponents have been prejudiced in their ability to pursue or defend the lawsuit, or unless lesser sanctions would be ineffective to deter the offending litigant's misconduct, preserve the integrity of the fact-finding process, or protect the dignity of the court.\\nJudge Kauvar made no findings on any of these issues. But with regard to potential prejudice to the State, we note that the State never alleged any. And with regard to the effectiveness (or ineffectiveness) of lesser sanctions, we note that, in Judge Kauvar's later explanations of her decision to dismiss Dayton's petition, she gave no hint that she considered lesser sanctions, much less that she considered lesser sanctions and reasonably concluded that they would have been ineffective to achieve the court's aims.\\nAccordingly, we conclude that it was improper for Judge Kauvar to strike Dayton's amended petition for post-conviction relief.\\nThe State's alternative argument that the superior court's action was harmless error\\nThe State argues that even if it was error for Judge Kauvar to strike Dayton's amended petition for post-conviction relief, this error was harmless because the amended petition fails to state a prima facie case for relief, In particular, the State argues that the amended petition asserts claims of ineffective assistance of counsel that were not addressed in the affidavit filed earlier by Dayton's trial attorney.\\nJudge Kauvar has made no ruling on this issue. Moreover, even assuming that the State is correct, the deficiency in Dayton's amended petition could potentially be cured by having Dayton's trial attorney respond to the claims contained in the amended petition. Given the procedural history of this case, we have doubts as to whether Dayton has had a proper opportunity to respond to any arguable defects in his amended petition.\\nFor these reasons, we can not say that the superior court's action was harmless error.\\nConclusion\\nThe superior court's decision to strike Dayton's amended petition for post-convietion relief is REVERSED. The superior court shall hold further proceedings on the amended petition. At that time, the State may pursue its motion to dismiss the amended petition for failure to state a prima facie case for relief.\\nBOLGER, Judge, not pafti\\u00e9ipating.\\n. October 31, 2004 was a Sunday.\\n. Howarth, 13 P.3d at 755-56.\"}"
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+"{\"id\": \"8332256\", \"name\": \"AFOGNAK JOINT VENTURE, Appellant, v. OLD HARBOR NATIVE CORP., and Akhiok-Kaguyak, Inc., Appellees\", \"name_abbreviation\": \"Afognak Joint Venture v. Old Harbor Native Corp.\", \"decision_date\": \"2007-01-26\", \"docket_number\": \"No. S-11912\", \"first_page\": \"451\", \"last_page\": \"460\", \"citations\": \"151 P.3d 451\", \"volume\": \"151\", \"reporter\": \"Pacific Reporter 3d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-11T02:03:01.398924+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before: BRYNER, Chief Justice, MATTHEWS, EASTAUGH, FABE, and CARPENETI, Justices.\", \"parties\": \"AFOGNAK JOINT VENTURE, Appellant, v. OLD HARBOR NATIVE CORP., and Akhiok-Kaguyak, Inc., Appellees.\", \"head_matter\": \"AFOGNAK JOINT VENTURE, Appellant, v. OLD HARBOR NATIVE CORP., and Akhiok-Kaguyak, Inc., Appellees.\\nNo. S-11912.\\nSupreme Court of Alaska.\\nJan. 26, 2007.\\nR. Collin Middleton and Robert J. Sato, Middleton & Timme, P.C., Anchorage, for Appellant.\\nMatthew D. Jamin, Matthew R. St. John, and Karen L. Lambert, Jamin Schmitt St. John, Kodiak, for Appellees.\\nBefore: BRYNER, Chief Justice, MATTHEWS, EASTAUGH, FABE, and CARPENETI, Justices.\", \"word_count\": \"4721\", \"char_count\": \"28756\", \"text\": \"OPINION\\nCARPENETI, Justice.\\nI. INTRODUCTION\\nThis is the second appeal in a dispute between various Kodiak area Native corporations over ownership of claims resulting from the Exxon Valdez oil spill. The Old Harbor and Akhiok-Kaguyak corporations belonged to a joint venture, along with eleven other corporations, which they formed in order to receive land on Afognak Island from the federal government. Old Harbor and Akhiok withdrew from the joint venture shortly after the Exxon Valdez oil spill of March 24, 1989. Upon withdrawal, they received shares of joint venture land and paid their shares of the joint venture's debts in satisfaction of all claims against the joint venture. In the 1990s the remaining members of the joint venture claimed oil spill settlement funds, including funds for damage to the land partitioned to Old Harbor and Akhiok, which the joint venture then refused to share with Old Harbor and Akhiok. The two corporations sued the joint venture to recover a proportionate share of the Exxon claim. The superior court ruled in favor of Old Harbor and Akhiok. The joint venture appeals.\\nBecause the superior court correctly determined ownership of the Exxon claim and correctly awarded a share of the Exxon claim to Old Harbor and Akhiok, and because the joint venture's remaining arguments are without merit, we affirm the superior court's judgment that the Exxon claims should be divided between the parties. We remand to the superior court for that division.\\nII. FACTS AND PROCEEDINGS\\nA. Events leading up to Old Harbor J\\nThirteen Kodiak-area Native Corporations (\\\"joint venturers\\\") formed the Afognak Joint Venture (\\\"Joint Venture\\\" or \\\"AJV\\\") in 1982 in order to receive lands from the federal government, as provided in Public Law 96-487 \\u00a7 1427(c) (1980):\\nThe Secretary of the Interior shall convey the surface estate on Afognak Island [as defined in an earlier section] . to a joint venture providing for the development of the surface estate.... The conveyance shall be made as soon as practicable after there has been filed with the Secretary of the Interior a duly executed joint venture agreement with provisions for sharing of and entitlements in costs and revenues of such venture as provided in this subsection [so that each corporation's land share is based on its population and acreage]. The conveyance shall not indicate the respective interests of each of the corporations in the surface estate conveyed but such interests shall be as provided in this subsection which shall be incorporated by reference into the conveyance.\\nOne of the joint venturers, Afognak Native Corporation, managed the Joint Venture. According to the Joint Venture agreement, the Joint Venture had several purposes: to receive the lands from the federal government, to develop them in the best interests of the joint venturers, and to manage fish and wildlife as required by the conveyance. The Joint Venture agreement indicated that the joint venturers intended to own the property as tenants in common and not as partners. However the Joint Venture, rather than the individual venturers, had authority to sell Joint Venture property and to determine when to distribute revenue to the venturers.\\nThe oil tanker Exxon Valdez hit Bligh Reef on March 24, 1989, spilling eleven million gallons of oil into the North Pacific; some of this oil reached Joint Venture land at some time between March 31, 1989 and the end of the summer of 1990. In April 1989 Akhiok-Kaguyak Corporation and Old Harbor Native Corporation (the Corporations) gave notice of their withdrawal from the Joint Venture. At the time of their withdrawal, the Corporations owned an undivided 18.37% interest in both the land and net assets of the Joint Venture (Old Harbor owned 12.38% and Akhiok owned 5.99%). According to the Joint Venture agreement, the Corporations immediately ceased to be members of the Joint Venture when they gave notice of their withdrawal; them land share was calculated according to values on the dates of them withdrawals and their shares of Joint Venture net assets were calculated from the last day of the month immediately preceding their withdrawal, i.e., March 31,1989.\\nThe parties negotiated a partition of land and assets and a release, which they signed in July 1991. The release indicates that the partition agreement \\\"completely and satisfactorily fulfills all of [the Joint Venture's] obligations\\\" to the Corporations, including the accounting and payment required in \\u00a7 6.01 of Exhibit C to the Joint Venture agreement: \\\"The Joint Venture shall be obligated to pay to the withdrawing joint venturer its percentage interest in the net assets [of the Joint Venture] within one year of the date of the notice of withdrawal....\\\" The net assets of the Joint Venture \\\"are the assets less the liabilities of the Joint Venture excluding commercial timber, land and value of improvements computed on an accrual basis.\\\" As part of the settlement and release, Old Harbor paid $128,941 and Akhiok paid $62,429 as their shares of the Joint Venture's negative value.\\nThe Joint Venture applied for Exxon spill settlement funds in 1993 from Alyeska Pipeline Service Company and later from Exxon, funds that included amounts based on the land already ceded to the Corporations. The Corporations requested a proportionate share of the settlement in 1996, but the Joint Venture denied the request. Other members of the Joint Venture who withdrew after the Joint Venture filed its Exxon claims were to receive shares of the oil spill damage claims based on their respective ownership interests in the Joint Venture. The Corporations sued the Joint Venture in September 1997, claiming a portion of the Exxon claims. The superior court granted summary judgment to the Joint Venture based on the release, and the Corporations appealed.\\nB. Summary of Old Harbor I\\nIn Old Harbor I we reversed the superior court's grant of summary judgment to the Joint Venture and remanded the ease for further proceedings. In Old Harbor I we held that the members of the Joint Venture continued to owe each other a fiduciary duty during the period between the Corporations' withdrawal in late April 1989 and the partition in July 1991. During that time, we held, \\\"the Joint Venture stood in the position of a trustee with respect to the Venture's assets because the Corporations were no longer members of the Joint Venture but were joint owners of the assets.\\\" The Joint Venture's fiduciary duty included a duty of disclosure regarding the status of the Exxon claim. We also held that there was a genuine issue of material fact as to whether the parties made a mutual mistake of fact when they omitted the Exxon claim from the accounting of the Joint Venture's assets during the partition.\\nThe three elements of mutual mistake of fact meriting reformation are: (1) the mistake relates to a basic assumption of the contract; (2) the mistake has a material effect on the agreed exchange; and (3) the party seeking relief does not bear the risk of mistake. Regarding the first element, we concluded that the alleged mistake related to a basic assumption of the contract, since the settlement agreement's goal was to \\\"resolve all of the [Joint Venture] and [the Corporations'] rights arising from [the Corporations'] withdrawal from the Joint Venture,\\\" which included rights to the Exxon claim. For the second element, we concluded that the mistake was material to the transaction. For the thud, we stated that \\\"nothing in the settlement agreement transferred the risk of a mutual mistake to the Corporations....\\\" Since we were reviewing summary judgment to the Joint Venture, we viewed all the evidence in the light most favorable to the Corporations. That included Old Harbor's evidence that it expected as early as February 1990 to receive about twelve percent of the Exxon claim and Akhiok's evidence that the Joint Venture never informed it during the partition negotiations that it intended to retain all of the Exxon claims.\\nIn Old Harbor I we noted that the trial court had not made a finding of fact regarding the date of accrual of the Exxon claim. Therefore, it was impossible to determine whether the Joint Venture's duty to disclose the Exxon claim arose before or after the Corporations' withdrawal from the Joint Venture. However, we held that regardless of when the Exxon claim arose, the Joint Venture's fiduciary duty of disclosure continued until partition, and the Joint Venture had a duty to inform the Corporations of the status of the claim. We also noted that in light of this holding we did not need to resolve a further factual conflict between the parties: They both claimed to own the land at the time the claims accrued, the Corporations as tenants in common with other joint venturers, and the Joint Venture as sole title holder.\\nConsequently, the questions for the superi- or court on remand were: (1) Given the existence of a duty to disclose the status of the Exxon claim up until the July 1991 partition, did the Joint Venture discharge it? (2) Given the parties' failure to address the Exxon claim in the partition agreement, did the parties make a mutual mistake of fact meriting reformation of the agreement?\\nCi Summary of Proceedings in the Superior Court\\nAfter remand from Old Harbor I and before trial, the parties stipulated to several facts, including the following:\\nNo oil from the Exxon Valdez Oil Spill contacted AJV land on or before March 31, 1989, because the oil had not yet reached the Kodiak Island Group.\\nFor the AJV lands that were oiled, the vast amount of the oil was not present by the end of the summer of 1990.\\nDuring a bench trial before Superior Court Judge Sen K. Tan, the parties presented live testimony from ten witnesses, and submitted depositions from eight witnesses, and introduced approximately 370 exhibits. The superior court found that the Joint Venture members held the land as tenants in common. The superior court also relied upon our observation in Old Harbor I that, although the Corporations ceased to be members of the Joint Venture upon notice of withdrawal, they continued to own interests in Joint Venture land and other assets.\\nThe superior court found that, although \\\"the parties did not think about the [Exxon] claim in the context of the partition discussions and the documents that finalized their agreement, they were certainly aware of a potential oil spill damage claim\\\" during the period between withdrawal and partition. The court also found that the parties knew that the Joint Venture was an absent class member in the Exxon suit, although the parties dispute whether the Joint Venture found out about its class membership before partition. Finally, the court found that within a year of the Corporations' withdrawal, the Afognak Native Corporation (whose managers were the same people managing the Joint Venture) demonstrated that it felt its own land damage claim had value by participating in discovery with other class attorneys and modifying its direct action claims against Exxon to include damages for \\\"the direct oiling\\\" of its land. (The Afognak Native Corporation had originally claimed damage only to archaeological sites during oil-spill cleanup.)\\nThe superior court noted that \\\"[t]he [Exxon] oil spill case extended the notions of damages that could be recovered.\\\" This was because land owners such as the Joint Venture were not required to show actual damage. Under the distribution plans of both the Alyeska and Exxon settlements, a claimant's land was valued on the day of the oil spill (March 24, 1989), and its value before the spill was compared to its value after the spill on that day. Using March 24 as the date for assessing damage was simply a convenience, since \\\"any distribution plan tying recoveries to when a property was actually first oiled would have been an administrative nightmare.\\\" Additionally, a landowner did not have to show that its land had actually been oiled; the land only had to be located within the \\\"oil spill area,\\\" which included all of Afognak Island. Thus a landowner claim such as the Joint Venture's had only two elements: ownership of the land on March 24, 1989 and location in the oil spill area.\\nThe superior court applied the three-part mistake of fact test set out in Old Harbor I, and concluded that the parties made a mutual mistake of fact \\\"in not realizing . the existence of the oil spill damages claim [during the partition negotiations].\\\" Holding that this mistake merited \\\"reformation\\\" of the settlement agreement, the superior court awarded 18.37% of the Exxon claim to the Corporations. In light of this ruling, the superior court did not reach the issue of breach of fiduciary duty.\\nThe Joint Venture now appeals.\\nIII. STANDARD OP REVIEW\\nWe review the superior court's factual findings for clear error. We will find clear error only if, after a thorough review of the record, we come to a definite and firm conviction that a mistake has been made.\\nQuestions of contract interpretation are generally questions of law which we review de novo; but fact questions are created when the meaning of contract language is dependent on conflicting extrinsic evidence. We can affirm a decision of the superior court on any basis supported by the record. Finally, unless a factual or legal error by the superior court is \\\"inconsistent with substantial justice,\\\" the court's judgment will not be disturbed.\\nIV. DISCUSSION\\nA. The Superior Court Did Not Err when It Determined that the Corporations Owned a Portion of the Exxon Claim.\\nThe Joint Venture asserts that the superior court's judgment should be reversed because it is based on the incorrect assumption that Old Harbor I decided who owned the land and who owned the claims. The Joint Venture argues that because of this incorrect assumption the superior court's decision lacks adequate factual support. In response, the Corporations maintain that ownership of the Exxon claim is irrelevant to the superior court's decision, since the mutual mistake the parties made was \\\"in failing to discuss and allocate the Exxon claim even though the parties were operating under an implicit and explicit assumption that all the parties' rights would be resolved.\\\"\\nUnder Article VI, \\u00a7 6.01 of Exhibit C to the Joint Venture agreement, the Joint Venture is required to account for its net assets \\\"on an accrual basis\\\" as of the last day of the month preceding the date of withdrawal. Because the withdrawal was in April, the accounting date was therefore March 31, 1989. Under the agreement, the Joint Venture is required to pay the withdrawing corporation the corporation's percentage interest in the Joint Venture's net assets within a year of notice of withdrawal plus eighteen percent interest. According to the Joint Venture, the Exxon claims accrued to the Joint Venture after the Corporations' withdrawal. Therefore, the Joint Venture maintains, the Corporations had no right to share in the Joint Venture's Exxon claims. The Joint Venture argues that even though the only date listed as an eligibility requirement for the Exxon claim is the day of the Exxon spill, March 24, 1989, the claim did not actually accrue until the oil hit the Joint Venture land sometime after March 31,1989.\\nWe agree with the Corporations: It is immaterial whether the Exxon claim accrued before or after the Corporations' withdrawal. If the claim accrued before withdrawal, it was a Joint Venture asset subject to distribution to the Corporations just like any other asset by virtue of \\u00a7 1.05 of the Joint Venture agreement:\\nAll revenues (including proceeds resulting from the disposition or destruction of Joint Venture property) realized and all costs, charges and expenses incurred in conducting Joint Venture business will be distributed or shared by the joint ventur-ers in the manner provided in Section 1427(c) of Public Law 96-4.87 [by which the venturers' individual interests were calculated]. . Funds not required for working capital purposes may be distributed to the joint venturers at such times as designated by the Board. Management of the Joint Venture will establish a system to effect the foregoing, which system will have as an objective the minimization of working capital operating funds committed by each joint venturer.\\n(Emphasis added.)\\nIf the claim accrued after withdrawal, it is covered by our decision in Old Harbor I. There, we held that after the Corporations withdrew in April 1989, the Joint Venture \\\"stood in the position of a trustee because the Corporations were no longer members of the Joint Venture but were joint owners of the assets.\\\" In other words, the Joint Venture and the Corporations held the land and assets as tenants in common between April 1989 when the Corporations withdrew and July 1991 when the land and assets were partitioned. Accordingly, if the claim accrued after withdrawal, it would belong to the Corporations as tenants in common whose title was held in trust by the Joint Venture.\\nFor these reasons, we conclude that the superior court did not err when it deter mined that the Corporations owned a portion of the Exxon claim.\\nB. The Superior Court Did Not Err in Ruling that the Parties Made a Mutual Mistake of Fact.\\nThe Joint Venture initially argues that its only mistake was in failing to predict at the time of partition that in a few years it would have a large Exxon claim. It argues that the parties did not intend to allocate assets of minimal value, which would have included the Exxon claim at the time of partition, since the Alyeska and Exxon settlements were still years away when the Corporations signed the partition agreement and no one could have predicted that actual damage to the land would not be required for an Exxon claim. The Corporations respond that, given the parties' knowledge of a potential claim during partition, their real mistake was in failing to fulfill their commitment to \\\"consider all the AJV's rights and divide such accordingly.\\\"\\nWe agree with the Corporations. No party claimed to be unaware during partition negotiations of other Exxon claims or that the Joint Venture lands had been oiled. The Joint Venture's subjective valuation of the Exxon claim as small or even zero is irrelevant for, as we held in Old Harbor I, the settlement agreement \\\"purported to 'resolve all of the [Joint Venture] and [the Corporations'] rights arising from [the Corporations'] withdrawal from the [Joint Venture].' \\\" We conclude that the superior court did not err in ruling that the parties made a mutual mistake of fact.\\nC. The Superior Court Did Not Err in Dividing the Exxon Claim Between the Parties.\\nIn Old Harbor I we held that the mutual mistake of fact alleged by the Corporations, if proven, would merit \\\"reformation of the settlement agreement and release,\\\" since it satisfied the three-part test for mutual mistake of fact: (1) the parties' failure to discuss the Exxon claims undermined the \\\"basic assumption\\\" that the release would address all of the Joint Venture's assets; (2) the Exxon claims, worth millions of dollars, were material to the transaction; and (3) nothing in the settlement agreement transferred the risk of a mutual mistake to the Corporations.\\nAccording to the Joint Venture, reformation of the partition agreement was inappropriate since the parties did not reach an agreement on the Exxon claim and they did not have identical views on the claim's value during their partition negotiations. The Joint Venture notes that \\\"[w]hile the corporations may have believed AJV land to have been damaged, the AJV did not.\\\" However, the parties did have a common intent to account for all of their assets. The Joint Venture's argument that one of the assets was insignificant does not change the goal of the parties' agreement, especially in light of the Joint Venture's fiduciary duty to disclose \\\"the status of Joint Venture assets\\u2014 including the Exxon claim \\u2014 during the period following the Corporation's withdrawal but prior to the completion of the partition process.\\\"\\nNevertheless, upon reexamination of our holding in Old Harbor I, we note that when using the term \\\"reformation\\\" we may have misdirected the superior court on terminology, although not on the law. According to the Restatement (Second) oe CONTRACTS \\u00a7 155, reformation is available to correct a mutual mistake of fact when a contract fails to express the actual agreement between the parties. That is, reformation would be strictly appropriate where the parties had actually agreed to apportion the Exxon claim and had merely failed to record it. In the present case, by contrast, the superior court correctly concluded that the parties' mistake consisted of their failure to discuss the Exxon claim at all. Here the court's power to reshape the contract is expressed more clearly by \\u00a7 158 of the Restatement. According to that section, in a case of mistake where neither damages, avoidance of the contract, reformation, restitution, or other remedies provided in Chapter 6 of the Restatement are available, the court may exercise its equitable power \\\"to grant relief on such terms as justice requires.\\\" Relief under these circumstances may include supplying a term to the parties' agreement. We have previously expressed our willingness to imply a contract term in order to conform a contract to the evident intent of the parties. In this case, the parties clearly intended, and the Joint Venture was required (on account of its fiduciary duty towards the Corporations and by Article VI, \\u00a7 6.01 of Exhibit C to the Joint Venture agreement), to account for and apportion all of the Joint Venture's assets. By awarding 18.37% of the Joint Venture's Exxon claim to the Corporations the superior court gave effect to the reasonable expectations of the parties.\\nWhile we conclude that the superior court did not err in dividing the Exxon claim between the parties, as we noted above the court had the power to \\\"grant relief on such terms as justice requires.\\\" Because our earlier remand may have incorrectly focused the court's and the parties' attention on reformation under \\u00a7 155, it is unclear whether the superior court was aware of this power and whether the parties had a full opportunity to litigate all issues under it. Accordingly, we remand for the limited purpose of allowing the superior court to consider whether the Joint Venture is entitled to a set-off for any costs it incurred in obtaining compensation under the Exxon claims.\\nD. The Joint Venture's Remaining Arguments on Appeal Are Without Merit.\\nThe Joint Venture argues that the Corporations acted in bad faith by not informing the Joint Venture of the Corporations' opinion that the Exxon claim had value. According to the Joint Venture, the Corporations' knowledge of the claims was superior to the Joint Venture's because Old Harbor, representing a class of landowners that included the Joint Venture, filed suit against Exxon during or just before the period of partition negotiations. But the superior court found that all of the parties were aware of potential claims. The evidence supports this finding. The Joint Venture also alleges numerous factual mistakes in the superior court's findings. However, the Joint Venture does not assert that any of these alleged mistakes is material to the outcome of the ease. In these circumstances, there is no basis for reversal.\\nV. CONCLUSION\\nThe superior court correctly determined ownership of the Exxon claim and the nature of the parties' mistake in partitioning their assets. Therefore, we AFFIRM the superior court's judgment that the Exxon claims should be divided between the parties. We REMAND so that the superior court may fix the Corporation's proportionate share of the Exxon claims. At that time the court may consider whether the Joint Venture is entitled to offset any costs it bore in pursuing the Exxon claims.\\n. Old Harbor Native Corp. v. Afognak Joint Venture, 30 P.3d 101 (Alaska 2001) (Old Harbor I).\\n. Id. at 104.\\n. Id.\\n. Id.\\n.Id.\\n. id. at 106.\\n. Id. at 107.\\n.Id. at 107-08.\\n. Id. at 108 (quoting Stormont v. Astoria Ltd., 889 P.2d 1059, 1061 (Alaska 1995)).\\n. Id.\\n. Id. The Joint Venture valued its share of the Exxon claims, including punitive damages, at about $22 million. Id. at 104.\\n. Id. at 108 (emphasis in original).\\n. Id.\\n. Id. at 106 n. 17.\\n. Id. at 106.\\n. Id. at 109 n. 31.\\n. See id. at 106.\\n. In February 1991, six months before the parties signed the partition agreement, Superior Court Judge Brian Shortell certified a class of real property owners affected by the spill, which included the Joint Venture land. Old Harbor represented the class.\\n. In 1994 the U.S. District Court required as an element of recovery that oil actually reached a property owner's land. However, neither the Alyeska settlement nor the Exxon settlement required this, in Alyeska's case because it pre-dated the district court's order, and in Exxon's because the parties settled and the court later approved a distribution plan like Alyeska's.\\n. Alaska R. Civ. P. 52(a).\\n. Hall v. TWS, Inc., 113 P.3d 1207, 1210 (Alaska 2005).\\n. Norville v. Carr-Gottstein Foods Co., 84 P.3d 996, 1000 n. 1 (Alaska 2004).\\n. Hall, 113 P.3d at 1210 (citing Rausch v. Devine, 80 P.3d 733, 737 (Alaska 2003)).\\n. Alaska R. Civ. P. 61. See also Fairbanks North Star Borough v. Rogers & Babler, 747 P.2d 528, 531 (Alaska 1987) (\\\"[E]ven if a finding of fact or conclusion of law is erroneous, the mistake is not grounds for reversal if the finding or conclusion is not necessary to the court's ultimate decision.\\\").\\n. Old Harbor I, 30 P.3d at 106. However, the court explicitly declined to determine the nature of the interest before withdrawal. Id. at 109 n. 31.\\n. See AS 34.15.130:\\nExcept as provided in AS 34.15.110(b) [presumption of tenancy in entirety where husband and wife hold title] and AS 34.77.100 [community property trust], persons having an undivided interest in real property are considered tenants in common.\\n(Emphasis added.)\\n. The claim is also suspect, considering the fact that within a year of the partition, the people who managed both Afognak Native Corporation and the Joint Venture modified Afognak Native Corporation's claim against Exxon to include damages for oiling of the latter's land.\\n. 30 P.3d at 108.\\n. Id.\\n. Id. at 107.\\n. Restatement (Second) of Contracts \\u00a7 155 (1979).\\n. Id. at cmt. b. See also Restatement (Second) of Contracts, ch. 6, introductory note at 379 (\\\"Where, however, because of a mistake of both parties as to expression the writing fails to express an agreement that they have reached previously, the appropriate relief ordinarily takes the form of reformation of the writing to make it conform to their intention.\\\").\\n. Restatement (Second) of Contracts \\u00a7 158(2). See also Restatement (Second) of Contracts, ch. 6, introductory note at 381 (\\\"The rules governing [mistake] have traditionally been marked by flexibility and have conferred considerable discretion on the court.\\\").\\n. Restatement (Second) of Contracts \\u00a7 158 cmt. c.\\n. See, e.g., Ellingstad v. State, Dep't of Natural Res., 979 P.2d 1000, 1008 (Alaska 1999) (holding that where contract silent court may supply reasonable term to fulfill parties' expectations). See also Rego v. Decker, 482 P.2d 834, 837 n. 8 (Alaska 1971) (stating that apparent difficulties of enforcement due to uncertainty of expression often disappear in light of \\\"courageous common sense\\\").\\n. Restatement (Second) of Contracts \\u00a7 158(2).\\n. See Edwards v. Alaska Pulp Corp., 920 P.2d 751, 754 (Alaska 1996) (noting that under common fund doctrine \\\"a litigant . who recovers a common fund for the benefit of persons other than himself or his client is entitled to a reasonable attorney's fee from the fund as a whole\\\"). Accord Quinn v. State of California, 15 Cal.3d 162, 124 Cal.Rptr. 1, 539 P.2d 761, 764 (1975) (\\\"[0]ne who expends attorneys' fees in winning a suit which creates a fund from which others derive benefits, may require those passive beneficiaries to bear a fair share of the litigation costs.\\\").\\n. Fairbanks North Star Borough v. Rogers & Babler, 747 P.2d 528, 531 (Alaska 1987) (\\\"[E]ven if a finding of fact or conclusion of law is erroneous, the mistake is not grounds for reversal if the finding or conclusion is not necessary to the court's ultimate decision.\\\").\"}"
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+"{\"id\": \"8387233\", \"name\": \"Alan R. BURTON, Appellant, v. STATE of Alaska, Appellee\", \"name_abbreviation\": \"Burton v. State\", \"decision_date\": \"2008-04-18\", \"docket_number\": \"No. A-9686\", \"first_page\": \"964\", \"last_page\": \"976\", \"citations\": \"180 P.3d 964\", \"volume\": \"180\", \"reporter\": \"Pacific Reporter 3d\", \"court\": \"Alaska Court of Appeals\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-11T01:17:44.686624+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.\", \"parties\": \"Alan R. BURTON, Appellant, v. STATE of Alaska, Appellee.\", \"head_matter\": \"Alan R. BURTON, Appellant, v. STATE of Alaska, Appellee.\\nNo. A-9686.\\nCourt of Appeals of Alaska.\\nApril 18, 2008.\\nJames H. Cannon, Fairbanks, for the Appellant.\\nBlair M. Christensen, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.\\nBefore: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.\", \"word_count\": \"6080\", \"char_count\": \"38988\", \"text\": \"OPINION\\nMANNHEIMER, Judge.\\nOver a decade ago, Alan R. Burton was convicted of first-degree murder for shooting and killing his girlfriend, Susan Overbeck. This Court affirmed Burton's conviction on direct appeal. Burton v. State, Alaska App. Memorandum Opinion No. 4150 (November 17, 1999), 1999 WL 1260482.\\nA little over one year later, Burton initiated post-conviction relief proceedings in the superior court. In his petition, Burton argued that his trial attorney had been ineffective in various ways. Superior Court Judge Charles T. Huguelet ultimately dismissed Burton's petition for failure to state a prima facie case for relief. Judge Huguelet concluded that Burton had either failed to make a prima facie case for his attorney's incompetence, or had failed to show how his attorney's alleged incompetence might have prejudiced him. Burton now appeals the superior court's decision.\\nThe relationship of our decision in Burton's direct appeal to the resolution of his current claims of ineffective assistance\\nBefore we turn to Burton's individual claims of ineffective assistance, we must address a preliminary issue. Burton asserts that Judge Huguelet committed legal error when the judge ruled that two of Burton's claims of ineffective assistance of counsel were precluded by this Court's resolution of Burton's direct appeal.\\nBurton argued in his post-conviction relief petition that his trial attorney gave him ineffective assistance of counsel because she failed to object to certain portions of the testimony given by two witnesses, Dorothy Leach and Sheryl Perry. Judge Huguelet ruled that even if Burton's trial attorney was conceivably incompetent for failing to object to this testimony, Burton could not prove ineffective assistance of counsel because this Court (in Burton's direct appeal) had already ruled that the admission of this testimony was harmless beyond a reasonable doubt. Burton, Memorandum Opinion No. 4150 at 12-13, 1999 WL 1260482 at *6.\\nSimilarly, Burton argued that his trial attorney gave him ineffective assistance of counsel because, at Burton's murder trial, she failed to ask for jury instructions on two lesser degrees of criminal homicide (manslaughter and criminally negligent homicide). Judge Huguelet rejected his claim in large measure because this Court had already ruled (again, in Burton's direct appeal) that \\\"any error in failing to instruct the jury concerning [these] lesser offenses . was manifestly harmless\\\"-given that the jury had been instructed on second-degree murder (i.e., unintentional murder) and had nevertheless convicted Burton of first-degree murder (%.e\\u00a2., intentional murder). Burton, Memorandum Opinion No. 4150 at 12, 1999 WL 1260482 at *6.\\nIn the current appeal, Burton asserts that Judge Huguelet's analysis of these two claims was flawed by a fundamental misunderstanding of the relationship between (1) an appellate court's resolution of a claim of \\\"plain error\\\" in a defendant's direct appeal (i.e., resolution of a claim that was not preserved in the trial court because the defense attorney failed to object), and (2) a defendant's ability to argue later, in post-conviction relief litigation, that their attorney was incompetent because the attorney failed to object.\\nSpecifically, Burton asserts that it is possible for a defendant to prove (in post-conviction relief litigation) that their attorney acted incompetently by failing to object to evidence, or by failing to object to a trial judge's action (or inaction)-even though, on direct appeal, the appellate court concluded that the attorney's failure to object was not plain error. And, based on this assertion, Burton contends that Judge Huguelet committed error when he relied on this Court's decision in Burton's direct appeal to resolve these two claims of ineffective assistance of counsel.\\nBurton is partially correct. In order to explain this conclusion, we must review the definitions of \\\"ineffective assistance of counsel\\\" and \\\"plain error\\\".\\nUnder Risher v. State and Strickland v. Washington, a defendant who claims ineffective assistance of counsel must prove two things: first, that their attorney acted incompetently (i.e., that the attorney failed to meet the standard of performance minimally required of criminal law practitioners); and second, that this attorney incompetence prejudiced the defendant (.e, that there is at least a reasonable possibility that the result at the defendant's trial would have been different but for the attorney's incompetence).\\nUnder Alaska law, an error to which no objection was preserved in the trial court will qualify as \\\"plain error\\\" only if (1) the error \\\"was so obvious that it should have been noticed by the trial court sua sponte \\\" (i.e., the error should have been apparent to any competent judge or lawyer); (2) the attorney representing the party who now claims error had no apparent tactical reason for failing to object; and (8) the error was so prejudicial to the fairness of the proceedings that failure to correct it would perpetuate manifest injustice.\\nGiven these definitions, it is clear that Burton is correct when he asserts that a finding of \\\"no plain error\\\" on appeal will not necessarily rule out the possibility that the defense attorney acted incompetently by failing to object.\\nA \\\"plain error\\\" is an act or omission that is \\\"manifestly wrong, so wrong that any competent judge or attorney should have recognized the error and corrected it.\\\" For present purposes, the crucial aspect of the plain error doctrine is that it focuses on what the judge should or should not have done.\\nTrue, this Court has previously remarked that plain error and ineffective assistance of counsel are essentially two sides of the same coin:\\nIf an error is so obvious and so prejudicial that an appellate court should recognize it as \\\"plain error\\\" on appeal, [then] experienced, competent trial counsel should recognize it and seek its correction in the trial court by a timely objection. A finding of plain error is therefore virtually the equivalent of a finding of ineffective assistance of counsel. Rarely will one exist in the absence of the other.\\nPotts v. State, 712 P.2d 385, 394 n. 11 (Alaska App.1985).\\nBut although a finding of plain error may be \\\"virtually the equivalent of a finding of ineffective assistance of counsel\\\", the converse is not true. There are many instances where, although an attorney may be acting incompetently, the attorney's incompetence (and any accompanying injustice) will not be obvious to the trial judge-and thus there will be no plain error.\\nThis is the underlying premise of our decision in Barry v. State, where we held that claims of ineffective assistance of counsel must ordinarily be litigated in post-conviction relief proceedings rather than raised as claims of plain error on direct appeal. In Barry, we observed that the record of the trial proceedings will seldom conclusively establish incompetent representation, because that record will rarely provide an explanation for the attorney's conduct that is challenged as deficient. We addressed this issue again in Sharp v. State, where we explained that \\\"Icllaims of ineffective assistance can rarely be determined from the trial record alone [because a defense] attorney's trial decisions-including which potential defenses to pursue, whether to object to the evidence offered by the government, how to cross-examine government witnesses, and whether and how to present a defense case-generally rest on considerations of strategy and trial tactics that are not directly addressed in open court.\\\"\\nIn other words, even when a party's claim of plain error is based on the assertion that their attorney incompetently allowed something to happen at trial, or that the attorney incompetently failed to request something different, the question on appeal is normally mot whether the attorney acted incompetently. Instead, the question is whether, based on what the trial judge knew, the judge's failure to recognize the problem and take corrective action sua sponte was unreasonable or incompetent.\\nThus, there will be instances where a defense attorney may have been acting incompetently, but the trial judge had no reason to know this, and for this reason the appellate court will conclude that there is no \\\"plain error\\\". In these cireumstances, the appellate court's finding of \\\"no plain error\\\" will not preclude the defendant's later attempt to demonstrate the trial attorney's incompetence in post-conviction relief litigation.\\nBut the situation is different when an appellate court rejects a claim of plain error, not on the basis that the trial judge had no reason to be aware of the problem, but rather on the basis that the error, although \\\"plain\\\" (in the sense of \\\"obvious\\\"), did not prejudice the defendant.\\nFor instance, in Kenison v. State, 107 P.3d 335, 349 (Alaska App.2005), we acknowledged that the superior court's instruction to the jury on the meaning of \\\"fear\\\" was obviously wrong, but we further concluded that the error in the instruction actually favored the defendant, and thus there was no plain error-because, with regard to the defendant, this error was harmless.\\nSimilarly, in Norris v. State, 857 P.2d 349, 355 (Alaska App.1993), we concluded that even though the jury instruction on second-degree murder was flawed, the error in the instruction was cured by the explanation of this point contained in the summations of the parties, and thus the error did not prejudice the defendant.\\nMore recently, we have repeatedly held that, in felony sentencings governed by Alaska's presumptive sentencing law, a trial judge's failure to submit a proposed aggravating factor to the jury did not constitute plain error under Blakely v. Washington when the evidence on the aggravator was not subject to reasonable dispute-in other words, when there was no reasonable possibility that a jury would have found in the defendant's favor even if the issue had been submitted to a jury. See, e.g., Active v. State, 153 P.3d 355, 367 (Alaska App.2007); Milligrock v. State, 118 P.3d 11, 17 (Alaska App.2005).\\nIn such cireurmstances-ie., when an appellate court's finding of \\\"no plain error\\\" is based on the conclusion that the error did not harm the defendant-the appellate court's decision is relevant to, and potentially decisive of, any later claim of ineffective assistance of counsel. If, indeed, the defendant suffered no harm on account of the error, then even if the defendant can prove that the error was the result of attorney incompetence, the defendant will not be able to prove the second prong of the Risher-Strick-land test (the prejudice prong).\\nWe acknowledge that, when an appellate court decides a direct appeal, the appellate court will often use a test for reversible error (eg., whether the error \\\"appreciably affected the jury's verdict\\\") that is less strict than the test for prejudice under the Risher, Strickland standard (i.e., whether there is a reasonable possibility that the error affected the outcome). In such cases, if a defendant proves their attorney's incompetence in a post-conviction relief action, the defendant would then be entitled to argue that the appellate court's conclusion of \\\"no harm\\\" should be re-evaluated under the \\\"harmless beyond a reasonable doubt\\\" standard specified in Risher and Strickland.\\nMoreover, even when an appellate court uses a \\\"harmless beyond a reasonable doubt\\\" test for reversible error (as it must when the proved error is a deprivation of a constitutional right), a post-conviction relief litigant might still be able to show that there is good cause to re-assess the appellate court's conclusion that there was no reasonable possibility that the error harmed the defendant-for example, by showing that any competent defense attorney would have chosen a different overall litigation strategy at the defendant's trial.\\nBut in many instances, the pleadings and proof in a post-conviction relief case will provide no reason to doubt the appellate court's earlier conclusion that any error was harmless. In such instances, even if the defendant shows that the error can be attributed to their attorney's incompetence, the superi- or court may still validly rely on the appellate court's conclusion of harmlessness as a basis for denying the requested relief.\\nBurton argues that recent decisions of the Missouri courts show that this reasoning is flawed. We disagree. In fact, our research discloses that Missouri follows the rule that we have just explained. See Shifkowski v. State, 136 S.W.3d 588 (Mo.App.2004).\\nThe superior court's rejection of Burton's claim regarding the testimony of Dorothy Leach and Sheryl Perry\\nAs we explained in our opinion resolving Burton's direct appeal, evidence was presented at Burton's trial that he assaulted his girlfriend, Susan Overbeck, by kicking her in the head and stomach-and that, following this assault, one of Overbeck's friends took her to the residence of Sheryl Perry.\\nPerry observed the bruises on Overbeck's face and back, and she spoke to Overbeck about her injuries. According to Perry, Ov-erbeck told her that Burton had caused these bruises, and Overbeck further stated that she was afraid that Burton might kill her.\\nIn Burton's direct appeal, he asserted that Perry's testimony about Overbeck's out-of-court statements was inadmissible hearsay. We upheld the admission of Overbeck's statement attributing her injuries to an assault by Burton (because it was an excited utterance), but we agreed with Burton that the trial judge should not have allowed Perry to relate Overbeck's statement about her fear that Burton might kill her in the future.\\nNevertheless, we concluded that any error in admitting this statement was harmless because \\\"[t]he danger of admitting Over-beek's . expression of fear\\\"-i.e., the danger \\\"that the jury might be led to speculate that Burton had done things to arouse this fear\\\"-was alleviated by the fact that \\\"the jury heard admissible evidence of Burton's [repeated] assaults on Overbeck\\\". Indeed, at the end of our opinion, we addressed the cumulative effect of all the improperly admitted hearsay at Burton's trial, and we declared that this testimony (even considered all together) \\\"was harmless beyond a reasonable doubt\\\".\\nThe State also presented the testimony of Dorothy Leach. Leach lived near Over-beek's place of work, and Overbeck would often come to Leach's house to use the telephone. After one such telephone call, Over-beck showed Leach some bruises on her back and chest. She told Leach that Burton had beaten her. She also stated that Burton was \\\"so jealous [that] one day he [would] kill [her]\\\".\\nOn appeal, Burton contended that this testimony was inadmissible hearsay. We found no plain error because the defense attorney had not objected to this testimony, and because hearsay is admissible unless there is an objection.\\nIn his post-conviction relief petition, Burton asserted that his trial attorney acted incompetently by failing to make proper objections to Perry's and Leach's testimony about Overbeck's out-of-court statements expressing fear that Burton would kill her. He further asserted that he was prejudiced by the cumulative effect of these two statements.\\nWhen Judge Huguelet rejected this claim, he noted that this Court had found that Perry's testimony on this subject was harmless beyond a reasonable doubt. Judge Hu-guelet pointed out (correctly) that this Court had not directly addressed the question of whether the combined effect of Perry's and Leach's testimony on this subject might have created a greater degree of prejudice. However, Judge Huguelet also pointed out that we had explained our basis for concluding that Burton was not prejudiced by Perry's testimony, and Judge Huguelet then declared that \\\"there [was] no reason why the same reasoning would not apply to Leach's testimony\\\".\\nIn other words, Judge Huguelet rejected Burton's claim of ineffective assistance, not because he believed that our discussion of prejudice was conclusive on this issue, but rather because Burton failed to present any reason to re-assess our earlier conclusion of harmlessness (which, strictly speaking, applied only to Perry's testimony), nor any reason to believe that the testimony of Perry and Leach on this issue, even taken in combination, was any more prejudicial than Perry's testimony alone.\\nIn his current appeal to this Court, Burton contends that Judge Huguelet was wrong to dismiss this claim, but most of his argument is devoted to the proposition that his trial attorney was incompetent for failing to object to the hearsay presented by Perry and Leach. This issue is moot; Judge Huguel-et's dismissal of this claim was not premised on Burton's failure to plead a prima facie case of attorney incompetence, but rather on Burton's failure to show any reason to believe that this alleged incompetence prejudiced him.\\nOn the issue of prejudice, Burton's argument consists of a single conclusory sentence: \\\"Burton's allegation of ineffectiveness on this issue was well pled and should not have been dismissed on the pleadings before he had a chance to depose his . trial counsel.\\\"\\nBut Burton offers no explanation of why he believes that his attorney's deposition might have advanced his contention that he was prejudiced by Perry's and Leach's challenged testimony. Moreover, as we recently explained in LaBrake v. State, Burton's allegation of prejudice was not \\\"well pled\\\"-at least, not in the sense that Judge Huguelet was obliged to assume the truth of this allegation.\\nBurton's only assertion that he was prejudiced by his trial attorney's failure to object to this testimony is contained in a single sentence of the affidavit that Burton submitted in support of his application for post-conviction relief. That sentence reads, \\\"I believe [that my trial attorney's] failures regarding the hearsay allowed at trial were the direct cause of my conviction, and constituted flagrant ineffective assistance of counsel.\\\"\\nThis was not enough to survive a motion for judgement on the pleadings or a motion for summary judgement. We held in LaB-rake that even though the superior court must, at this stage, presume the truth of all well-pleaded assertions of fact in a defendant's petition for post-conviction relief, \\\"this presumption does not apply to [a defendant's] assertions concerning the legal effect or categorization of the underlying occurrences ., nor does the presumption apply to [a defendant's] conclusory assertions concerning the ultimate facts to be decided.\\\" 152 P.3d at 480-81.\\nIn sum, Judge Huguelet properly concluded that Burton failed to present even a prima facie case that the admission of this challenged testimony made any possible difference to the outcome of Burton's trial.\\nThe superior court's rejection of Burton's claim regarding his trial attorney's failure to ask for jury instructions on the lesser offenses of mamslaughter and criminally negligent homicide\\nBurton was indicted for first-degree (4.e., intentional) murder. At Burton's trial, the State took the position that Burton blud geoned Overbeck, then stabbed her, and then finally shot her with a shotgun, with the intention of killing her.\\nBurton took the stand and asserted that he had been attempting to save Overbeck's life, not kill her. Burton testified that Overbeck was distraught and was threatening to commit suicide with the shotgun-so Burton intervened and tried to wrest the shotgun from her control. Burton asserted that, during the struggle for control of the shotgun, the weapon accidentally discharged and mortally wounded Overbeck.\\nTo support Burton's contention that Over-beek's death was an accident, the defense attorney relied not only on Burton's testimony but also on the State's forensic evidence, which the defense attorney contended was equally consistent with Burton's innocence as with his guilt. The defense attorney also relied on Burton's conduct and reactions following the shooting. It was Burton who called 911 to summon police and medical assistance. And, as shown by the 911 tape, Burton urged Overbeck-who was still alive-to \\\"hang on\\\" until help arrived. Burton also stated that he wanted to kill himself. Finally, the defense attorney relied on the fact that, even though Overbeck survived for approximately 40 minutes after the shooting, she never accused Burton of shooting her.\\nWhen the parties initially discussed the possibility of jury instructions on lesser included offenses, the prosecutor asked the superior court to instruct the jury on all three lesser degrees of criminal homicide: second-degree murder, manslaughter, and negligent homicide. Burton's attorney opposed any instructions on these lesser offenses; she contended that Burton was either guilty of first-degree murder or he was guilty of nothing, and the jury should be put to this choice.\\nAfter hearing these competing positions, the trial judge ruled that the evidence supported one reasonable alternative between first-degree murder and acquittal: the conclusion that Burton was guilty of second-degree murder. The trial judge essentially agreed with the defense attorney's position that the evidence allowed only two reasonable conclusions: either (1) Burton intentionally shot Overbeck, or (2) the shooting was an accident that occurred while Burton was trying to save Overbeck, and there was no crime. However, the judge apparently concluded that the jury could reasonably find that, even though Burton intentionally shot Overbeck, he did not do so with the intent of killing her. (When a homicide results from a purposeful attack, \\\"intent to kill\\\" is the element that generally distinguishes first-degree murder from second-degree murder. Compare AS 11.41.100(@)(1)(A) with AS 11.41.110(a)(1)-(2).)\\nThus, the jury was instructed on both first-degree (intentional) and second-degree (unintentional) murder. The jurors found Burton guilty of first-degree murder; that is, they found that Burton not only purposely shot Overbeck, but that he acted with intent to kill.\\nIn his direct appeal, Burton argued that the trial judge should have instructed the jury on manslaughter and eriminally negligent homicide. We rejected that argument for two reasons.\\nFirst, the defense attorney conceded (when questioned by the trial judge) that, given the evidence in the case, there was no version of facts that would realistically support a verdict of either manslaughter or criminally negligent homicide. Thus, this claim of error was not preserved.\\nSecond, we concluded that any potential error was harmless-since the jury was given the opportunity to find that Burton acted without intent to kill, and they rejected that conclusion. (This was demonstrated by the jury's decision to convict Burton of first-degree murder rather than second-degree murder.) Given the evidence in Burton's case, the jury's decision that Burton acted with the intent to kill meant that the jury could not reasonably have found him guilty of either manslaughter or criminally negligent homicide.\\n(The evidence in Burton's case gave no reason to believe that he committed voluntary manslaughter-i.e., no reason to believe that Burton intentionally killed Overbeck after she subjected him to serious provocation that prompted him to kill her in the heat of passion.)\\nIn his petition for post-conviction re-Hef, Burton asserted that his trial attorney was incompetent for deciding to litigate Burton's case in this fashion-ie., for allowing the case to go to the jury with only three verdict choices: first-degree murder, second-degree murder, or acquittal. Burton asserted that \\\"no reasonably competent defense counsel would have adopted [this] position\\\", and that \\\"[the risk of a conviction for murder [was] far too great to warrant an all-or-nothing gamble with a client's life.\\\"\\nTo support this assertion of incompetence, Burton's post-conviction relief attorney presented affidavits from two experienced defense attorneys, Geoffry Wildridge and Michael Dieni. Both of these attorneys stated that, in any case involving the accidental discharge of a firearm, they would ask for jury instructions on manslaughter and criminally negligent homicide.\\nMr. Wildridge's affidavit is worded in a way that does not directly assert that any other approach would be incompetent. Rather, Wildridge merely stated that his personal approach is to \\\"err on the side of caution\\\" and ask for jury instructions on any potential lesser offenses. Mr. Dieni, on the other hand, made the more forceful assertion, \\\"It is difficult to imagine an accidental discharge case involving a defendant handling a gun where the lesser-included offense of negligent homicide would not be requested.\\\"\\nHowever, neither Wildridge's nor Dient's affidavit addresses the litigation choices facing a defense attorney given the particular facts of Burton's case. Both Wildridge and Dieni focus their discussion on cases where the defense claim is that the firearm discharged accidentally because of a physical defect, or because the defendant was handling it carelessly-either under the mistaken belief that the gun was not loaded, or because the defendant was too intoxicated to handle firearms safely, or because the defendant was recklessly and unjustifiably pointing the gun at another person. Neither of the attorneys' affidavits addresses, or shows any awareness of, Burton's testimony that he took hold of the weapon only because he was attempting to interrupt an active suicide attempt.\\nIn Judge Huguelet's decision dismissing this claim of ineffective assistance, he noted that Wildridge's affidavit did not assert that Burton's trial attorney's approach to the case was incompetent, and he further noted that Dieni's affidavit (which did contain such an assertion) was addressed to cases that were factually dissimilar to Burton's case. Thus, Judge Huguelet concluded, neither affidavit provided good reason to believe that Burton's trial attorney's litigation strategy was incompetent.\\nBut Judge Huguelet declared that the \\\"most convinceing[ ]\\\" reason for rejecting Burton's allegation of ineffective assistance was this Court's conclusion (on direct appeal) that any error was harmless (because the jury received an instruction on second-degree murder, but the jurors nevertheless found Burton guilty of intentional murder). Based on this Court's conclusion that Burton had not been harmed by the absence of jury instructions on manslaughter or criminally negligent homicide, Judge Huguelet conelud-ed that even if Burton's trial attorney had conceivably acted incompetently in failing to pursue jury instructions on these lesser offenses, Burton had still failed to present a prima facie case that he was prejudiced by his trial attorney's decision.\\nIn this appeal, Burton argues that it was error for Judge Huguelet to base his decision on this Court's finding of \\\"no harm\\\" in Burton's direct appeal. Burton is partially correct. In this situation, Judge Huguelet could not ignore the issue of attorney incompetence and rely solely on this Court's earlier conclusion of harmless error. As we explained in the first section of this opinion, if Burton presented a prima facie case that his trial attorney's overall trial strategy was incompetent-i.e., a prima facie showing that all competent defense attorneys would have chosen a different overall litigation strategy-then this would constitute good cause to re-assess this Court's conclusion that Burton was not harmed by the absence of the jury instructions on manslaughter and eriminally negligent homicide.\\nThus, the true underlying issue is whether Burton presented a prima facie case that his trial attorney was incompetent for choosing this litigation strategy. We have examined the record, and we conclude that Burton failed to present a prima facie case that his trial attorney's litigation strategy was incompetent. (The adequacy of Burton's petition and supporting documents to survive a motion for judgement on the pleadings is a question of law; we therefore review it de movo.)\\nIn support of the assertion that Burton's trial attorney chose an incompetent litigation strategy, Burton's post-conviction relief attorney submitted the two affidavits from attorneys Wildridge and Dieni. But, as noted above, these two affidavits do not address the facts of Burton's case, and the kinds of cases that Wildridge and Dieni do discuss are substantially different from Burton's.\\nIn addition to these two affidavits, Burton's post-conviction relief attorney submitted a list of ten proposed different ways of defending Burton's case-ways that at least conceivably would have warranted jury instructions on manslaughter and/or criminally negligent homicide. But these ten alternative litigation theories are all premised on one of two assertions: either that Burton was criminally negligent or reckless for having a loaded weapon accessible in his home when he had reason to believe that Overbeck was suicidal, or that Burton was eriminally negligent or reckless for trying to wrest control of this weapon from Overbeck (rather than leaving Overbeck to carry out her threat to kill herself, or merely trying to talk her out of it).\\nSome of these ten suggested alternative litigation strategies are plausible ways of arguing Burton's case. But in light of Burton's trial testimony (coupled with his arguably exculpatory actions after Overbeck was shot, as described above), none of these ten alternative strategies stands out as significantly better than the litigation strategy that Burton's trial attorney pursued.\\nMoreover, the ultimate issue is not whether one or more of these ten suggestions is arguably better, or even significantly better, than the strategy that Burton's trial attorney pursued. Rather, the issue is whether the litigation strategy adopted by Burton's trial attorney is so much worse that no competent defense attorney would have chosen it.\\nHaving carefully examined the pleadings in this case, we conclude that Burton failed to present a prima facie case that his trial attorney's litigation strategy was incompetent. Judge Huguelet could therefore properly dismiss this claim for post-conviction relief.\\nThe superior court's rejection of Burton's claim regarding his trial attorney's preparation and presentation of the testimony of Thomas Vogel, the defense firearms expert\\nAt Burton's trial, his attorney presented the testimony of a firearms expert, Thomas Vogel. Vogel examined the shotgun shell retrieved from the weapon that killed Over-beck, and he noted that the impression left by the firing pin on this shotgun shell was off-center-which suggested to Vogel that a deforming pressure was being exerted on the breach block of the weapon at the time it discharged. Vogel told the jury that he tested a similar shotgun (%.e., a shotgun of the same make and model) in his shop, and that he was able to reproduce this off-center impression by exerting pressure on the breach block with his fingers. In other words, Vo-gel's testimony supported the defense contention that the shotgun had discharged by accident during a physical struggle for control of the weapon.\\nIn Burton's petition for post-convietion relief, he asserted that his trial attorney was incompetent in her preparation of Vo-gel's testimony because she failed to ask Vogel to test the actual weapon that killed Susan Overbeck, and instead allowed Vogel to perform his testing on another shotgun of the same make and model ({e, another Mossberg 500).\\nBut in her responding affidavit, the trial attorney explained why she had Vogel testify as he did. The trial attorney explained that she originally discussed the case with another firearms expert, Lucien C. Haag, who had been retained by the Public Defender Agency \\\"to examine the weapon [and] ammunition\\\" in Burton's case. However, after Haag conducted his analysis of this weapon and ammunition, he informed the trial attorney that he \\\"would not be a particularly helpful witness\\\"-because he could not provide forensic corroboration of Burton's account of the shooting.\\nAfter Haag declared that he could not give testimony to support Burton's account, the trial attorney turned to Vogel (who was the owner of a gun shop) to see if he could corroborate Burton's contention that the shotgun fired accidentally when it struck a bedpost while Burton was trying to wrest the gun from Overbeck. As it turned out, Vogel was also unable to corroborate Burton's account. However, as explained above, when Vogel tested a shotgun of the same make and model, the result of his testing suggested that the weapon in Burton's case had potentially been subjected to a deforming pressure when it discharged-thus at least partially corroborating Burton's testimony that the shotgun had fired during a struggle for control of the weapon.\\nFurther, Vogel testified that it was possible for a weapon of this make and model to discharge without an active pull on the trigger \\\"Hf it was jarred or hit hard enough\\\".\\nGiven the trial attorney's explanation of this matter, Burton's petition failed to present a prima facie case of attorney incompetence.\\nBurton also argued that his trial attorney was incompetent because, during Vo-gel's testimony, the trial attorney failed to ask Vogel to explicitly state that the result of his testing was at least consistent with Burton's testimony that the weapon had discharged during a struggle for control of the weapon. But Burton does not explain how it would have appreciably helped the defense case to have Vogel make this assertion in his testimony, as opposed to having the trial attorney draw this obvious conclusion during her argument to the jury.\\nOn appeal, Burton asserts an additional complaint about his trial attorney's performance. He contends that his trial attorney should not have relied on Vogel's testimony at all-because (according to Burton) the manner in which Vogel reproduced the off-center firing pin impression (by exerting pressure with three fingers on the breach block) was such an unusual way to hold the weapon that Vogel's conclusion failed to lend any credence to Burton's defense theory. Burton did not raise this contention in the superior court; it is not found in either his original petition, his amended petition, or his \\\"supplement\\\" to these petitions. Accordingly, this additional claim is not preserved for appeal.\\nThe superior court's rejection of Burton's claim regarding his trial attorney's cross-examination of Robert Shem, the government's firearms expert\\nAt Burton's trial, firearms expert Robert Shem testified for the prosecution. Shem concluded, from the physical evidence, that the muzzle of the shotgun was at least two feet, and perhaps three feet, from Overbeck's body when the weapon discharged. Shem's testimony on this issue tended to disprove Burton's account of how the shooting occurred.\\nIn his petition for post-conviction relief, Burton argued his trial attorney was incompetent for failing to cross-examine Shem in such a way as to impeach this testimony. In her responding affidavit, Burton's trial attorney stated that \\\"[her] eross[-lexamination of . Shem could have been better.\\\" However, the question is whether her cross-examination of Shem was incompetent.\\nThe record shows that Burton's trial attorney did cross-examine Shem about some of his conclusions. In particular, the trial attorney attempted (through her cross-examination of Shem) to develop additional support for Vogel's theory about the significance of the off-center firing pin impression.\\nDuring her cross-examination of Shem, Burton's trial attorney pointed out that when Shem test-fired the shotgun in his laboratory, three out of five test firings resulted in a normal, centered firing pin impression. Moreover even though the other two firing pin impressions were \\\"a little bit\\\" off-center, they were not off-center to the same extent as the impression found on the fatal shotgun shell. Thus, the trial attorney's cross-examination of Shem suggested that Vogel was correct when he attributed the off-center impression on the fatal shell to a deforming force exerted on the weapon.\\nIn the current appeal, Burton argues that his trial attorney could have asked more questions (1) to conclusively establish that the distance between the muzzle and Over-beek's body could not have exceeded three feet, and (2) to point out that, even though Shem's testing established the muzzle distance as between two and three feet, Shem could not say exactly where (within this range) the muzzle had been.\\nThese suggestions do not constitute a pri-ma facie case of attorney incompetence.\\nConclusion\\nFor the reasons explained here, we AFFIRM the superior court's dismissal of Burton's petition for post-conviction relief.\\n. 523 P.2d 421, 425 (Alaska 1974).\\n. 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984).\\n. Carman v. State, 658 P.2d 131, 137 (Alaska App.1983).\\n. Russell v. State, 934 P.2d 1335, 1343 (Alaska App.1997); Massey v. State, 771 P.2d 448, 453 (Alaska App.1989).\\n. Russell, 934 P.2d at 1344; Massey, 771 P.2d at 453; Potts v. State, 712 P.2d 385, 394 n. 11 (Alaska App.1985); Wortham v. State, 689 P.2d 1133, 1139 (Alaska App.1984).\\n. Woodbury v. State, 151 P.3d 528, 532 (Alaska App.2007); Baker v. State, 22 P.3d 493, 498 (Alaska App.2001); Hosier v. State, 1 P.3d 107, 112 n. 11 (Alaska App.2000).\\n. Wolfe v. State, 24 P.3d 1252, 1256 (Alaska App.2001); see also Allen v. State, 51 P.3d 949, 958 (Alaska App.2002); Massey, 771 P.2d at 453; Carman v. State, 658 P.2d 131, 137 (Alaska App.1983); Marrone v. State, 653 P.2d 672, 675-76 (Alaska App.1982).\\n. 675 P.2d 1292 (Alaska App.1984).\\n. Id. at 1295-96. See also State v. Jones, 759 P.2d 558, 565 (Alaska App.1988).\\n. 837 P.2d 718, 722 (Alaska App.1992).\\n. 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).\\n. 152 P.3d 474, 480 (Alaska App.2007).\\n. See AS 1141.115.\\n. See Greywolf v. Carroll, 151 P.3d 1234, 1240 (Alaska 2007) (\\\"[an appellate court] review[s] a grant of summary judgment de novo \\\"); Allstate Insurance Co. v. Teel, 100 P.3d 2, 4 (Alaska 2004) (\\\"[an appellate court] review[s] a grant of a motion for judgment on the pleadings de novo \\\"); Alakayak v. British Columbia Packers, Ltd., 48 P.3d 432, 448 (Alaska 2002) (explaining that appellate review of these matters is de novo because the appellate court is \\\"in virtually the same position as the trial court in its ability to assess the adequacy of the pleadings\\\") (quoting Gamble v. Northstore Partnership, 907 P.2d 477, 482 (Alaska 1995)).\"}"
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+"{\"id\": \"8392654\", \"name\": \"AMERADA HESS PIPELINE CORPORATION, BP Pipelines (Alaska) Inc., Cono-coPhillips Transportation Alaska, Inc., ExxonMobil Pipeline Company, Koch Alaska Pipeline Company, LLC, Mobil Alaska Pipeline Company, and Unocal Pipeline Company, Appellants, v. REGULATORY COMMISSION OF ALASKA, Tesoro Alaska Company, and Williams Alaska Petroleum, Inc., Appellees\", \"name_abbreviation\": \"Amerada Hess Pipeline Corp. v. Regulatory Commission\", \"decision_date\": \"2008-02-15\", \"docket_number\": \"No. S-12230\", \"first_page\": \"667\", \"last_page\": \"689\", \"citations\": \"176 P.3d 667\", \"volume\": \"176\", \"reporter\": \"Pacific Reporter 3d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-11T02:09:42.799271+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, and CARPENETI, Justices.\", \"parties\": \"AMERADA HESS PIPELINE CORPORATION, BP Pipelines (Alaska) Inc., Cono-coPhillips Transportation Alaska, Inc., ExxonMobil Pipeline Company, Koch Alaska Pipeline Company, LLC, Mobil Alaska Pipeline Company, and Unocal Pipeline Company, Appellants, v. REGULATORY COMMISSION OF ALASKA, Tesoro Alaska Company, and Williams Alaska Petroleum, Inc., Appellees.\", \"head_matter\": \"AMERADA HESS PIPELINE CORPORATION, BP Pipelines (Alaska) Inc., Cono-coPhillips Transportation Alaska, Inc., ExxonMobil Pipeline Company, Koch Alaska Pipeline Company, LLC, Mobil Alaska Pipeline Company, and Unocal Pipeline Company, Appellants, v. REGULATORY COMMISSION OF ALASKA, Tesoro Alaska Company, and Williams Alaska Petroleum, Inc., Appellees.\\nNo. S-12230.\\nSupreme Court of Alaska.\\nFeb. 15, 2008.\\nLouis R. Veerman, Pamela D. Weiss, Molly C. Brown, Guess & Rudd,, P.C., Anchorage; Steven H. Brose, Steven Reed, Steptoe & Johnson LLP, Washington, D.C.; Albert S. Tabor, Jr., John E. Kennedy, Vinson & El-kins, L.L.P., Houston, Texas, for Appellants Amerada Hess Pipeline Corporation, BP Pipeline (Alaska) Inc., ConoeoPhillips Transportation Alaska, Inc., ExxonMobil Pipeline Company, Mobil Alaska Pipeline Company, and Unocal Pipeline Company.\\nTina M. Grovier, Birch, Horton, Bittner & Cherot, Anchorage; John B. Rudolph, Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C., Washington, D.C., for Appellant Koch Alaska Pipeline Company, LLC.\\nCharles E. Cole, Law Offices of Charles E. Cole, Fairbanks; Stephan H. Williams, Anchorage, for Appellee Regulatory Commission of Alaska.\\nRobin O. Bre\\u00f1a, David W. Wensel, Bre\\u00f1a, Bell & Clarkson, P.C., Anchorage, for Appel-lee Tesoro Alaska Company.\\nDouglas S. Parker, Preston, Gates & Ellis LLP, Anchorage; Randolph L. Jones, Jr., Conner & Winters, Tulsa, Oklahoma, for Ap-pellee Williams Alaska Petroleum, Inc.\\nBefore: FABE, Chief Justice, MATTHEWS, EASTAUGH, and CARPENETI, Justices.\", \"word_count\": \"12386\", \"char_count\": \"80588\", \"text\": \"OPINION\\nPER CURIAM.\\nThe Regulatory Commission of Alaska (\\\"RCA\\\") determined that the shipping rates charged by the owners of the Trans-Alaska Pipeline were unjust and unreasonable from 1997 through 2000 and ordered refunds for that period. The owners appealed to the superior court, which affirmed, and now appeal to this court. They make the following four arguments:\\n1. The RCA inappropriately based its rate calculations on depreciation data from a contract between the pipeline's owners and the State.\\n2. The RCA's decision violated the rule against retroactive ratemaking by making its order enforceable from the time when the rates were first challenged (1997) and not from the time of the order (2002).\\n3. The RCA provided an unreasonably low rate of return considering the risks involved with investment in the pipeline.\\n4. The RCA violated due process by retaining an economic advisor who four years earlier wrote a master's thesis arguing that the pipeline's rates were too high.\\nThe owners' arguments on appeal are generally the same as those they presented to the superior court. We conclude that the superior court correctly resolved these arguments and therefore adopt the opinion of the superior court as set forth in the appendix.\\nThe opinion of the superior court is AFFIRMED.\\nBRYNER, Justice, not participating.\\nAPPENDIX\\nIN THE SUPERIOR COURT FOR THE STATE OF ALASKA\\nTHIRD JUDICIAL DISTRICT AT ANCHORAGE\\nAMERADA HESS PIPELINE CORPORATION, BP PIPELINE (ALASKA) INC., EXXONMOBIL PIPELINE COMPANY, MOBIL ALASKA PIPELINE COMPANY, PHILLIPS TRANSPORTATION ALASKA INC., UNOCAL PIPELINE COMPANY, WILLIAMS ALASKA PIPELINE COMPANY LLC, and the STATE OF ALASKA, Appellants, vs. REGULATORY COMMISSION OF ALASKA,\\nAppellee.\\nCase No. 3AN-02-13511 Cl\\nRCA Docket Nos. P-97-4, P-97-7\\nDECISION AND ORDER\\nI. FACTS AND PROCEEDINGS\\nAppellees Tesoro Aaska Company (\\\"Teso-ro\\\") and Williams Aaska Petroleum Inc. (\\\"Williams,\\\" or collectively \\\"the shippers\\\"), refiners of North Slope oil, protested to ap-pellee Regulatory Commission of Aaska (\\\"RCA\\\") 1997 intrastate rates for the Trans Aaska Pipeline System (\\\"TAPS\\\"). The appellants (\\\"the TAPS Carriers\\\") are subsidiaries of major oil producing companies; they hold title to undivided joint interests in the pipeline, and certificates of convenience to operate the pipeline. They delegate physical operations and maintenance to their wholly owned agent, the Ayeska Pipeline Service Corporation (\\\"Ayeska\\\").\\nRCA decreed the challenged rates provisional and subject to refund. Following extensive administrative proceedings, RCA promulgated Order No. 151 in Docket P-97-4. Order No. 151 exceeds two hundred pages. Twenty-six years into TAPS's life, Order No. 151 for the first time set fully litigated, rather than settlement-generated, intrastate rates. RCA concluded that the 1997-2000 intrastate TAPS rates were not \\\"just and reasonable\\\" under Aaska's Pipeline Act. RCA rejected the settlement-generated rate-making methodology, and prospectively substituted a \\\"depreciated original cost\\\" (\\\"DOC\\\") methodology. RCA determined values for constituent components of the DOC formula, calculated rates substantially lower than those filed by the Carriers, and ordered refunds to the shippers. The TAPS Carriers and the State of Aaska appeal this decision to the Superior Court pursuant to Aaska Rule of Appellate Procedure 602(a)(2).\\nPlanning for TAPS began in 1967. Oil first flowed in 1977. The Federal Energy Regulatory Commission (\\\"FERC\\\") regulates most of the oil \\\"throughput\\\" as interstate commerce. Somewhat less than ten percent is delivered to refineries near Fairbanks and Valdez or shipped to Nikiski. RCA regulates only this intrastate component.\\nPrecursor rate litigation commenced post-construction of TAPS in 1977. Ater eight years of expensive and burdensome parallel proceedings before FERC and RCA's predecessor agency the Aaska Public Utilities Commission (\\\"APUC\\\"), the State of Aaska and the TAPS Carriers settled both the interstate and intrastate dockets in 1985. Thereafter the TAPS Carriers have calculated intrastate rates pursuant to their dickered deal, known as the TAPS Settlement Methodology (\\\"TSM\\\"). TSM is a highly customized ratemaking methodology which deviates significantly from traditional ratemaking methodologies used by RCA and its predecessors, APUC and the Aaska Pipeline Commission.\\nThe TAPS Carriers submitted their settlement for approval by APUC on May 30, 1986. Petro Star Inc., a Fairbanks refiner, protested and thereby prolonged proceedings until it in turn settled with the Carriers in 1993. APUC granted final approval to the TAPS settlement with the following relief-tinged words:\\n[e]ntities impacted by oil pipeline rates are sophisticated and capable financially and practically of protecting their own interests. Not one has come forward to contest the TAPS Settlement. Under these circumstances, the public interest does not require that this proceeding be continued! ]\\nThus APUC entered no findings on the merits regarding the initial rate litigation commenced in 1977 and ultimately terminated in 1993. But APUC left open the door for the instant rate litigation:\\nEach new rate filed by the TAPS Carriers under the Intrastate Settlement Agreement is considered to be a revised tariff filing . subject to the same standards and procedures to which it would have been subject if the Intrastate Settlement Agreement had not been accepted.[ ]\\nThe procedural history of the TAPS rate litigations is set forth at Endnote 2 of Order No. 151. On December 23, 1996, Tesoro protested the 1997 filed rates; Mapeo, predecessor of Williams Alaska Petroleum Inc., subsequently intervened. The APUC opened Docket 97-4 to determine if post-1996 rates were just and reasonable under AS 42.06.370. The Carriers filed their ease-in-chief on October 8, 1998, focusing on whether TSM should continue to govern intrastate rates. On March 15, 1999, Tesoro filed a motion for summary judgment alleging a failure of proof that 1997-98 TSM-based intrastate rates were just and reasonable. RCA granted the motion on April 10, 2000, reasoning that the Carriers' focus on the validity of TSM over the TAPS' lifetime must yield to a focus on the specific years in question. RCA calendared additional proceedings for the Carriers to prove their 1997-2000 rates just and reasonable, in light of RCA's summary judgment findings.\\nThe Carriers filed their second-round direct testimony on July 12, 2000. Their central point, elaborated in a \\\"benchmark\\\" economic model, was that if a standard DOC methodology, employing standard straight-line depreciation rather than TSM accelerated depreciation, had been employed ab ini-tio, consistently calculated 1997-2000 rates would be higher than those actually filed by the Carriers under TSM. A five-week hearing ensued beginning April 2001.\\nRCA promulgated Order No. 151 on November 27, 2002, decreeing inter alia that the Carriers' intrastate rates for 1997-2000 were excessive and that historically recovered accelerated depreciation, rather than a deemed straight-line depreciation, governed calculation of the Carriers' year-end 1996 unrecovered investment (\\\"rate base\\\"). RCA calculated the rate base to be $669 million rather than the $3.2 billion computed by the Carriers. RCA also ruled upon various disputes as to component factors of the traditional ratemaking formula such as the appropriate treatment of risk factors, rates of return, and the amount of presumed equity and debt which financed construction of the pipeline. RCA parenthetically found that under the TSM regime up to 1998, the Carriers potentially garnered a $9.9 billion windfall through excessive rates. RCA made no attempt to recapture any such windfall because the regulatory proscription against \\\"retroactive ratemaking\\\" prevents redress for past year under- or over-collections. Using its traditional DOC methodology and data inputs derived from the record, RCA established rates for the disputed period.\\nThe Carriers appealed from Order No. 151 on December 6, 2002. Later, RCA issued Order No. 159, rejecting applications by several Carriers for individualized rates for 1997-2000. Finally, RCA issued Order No. 162 establishing a 10.5% interest rate on refunds. The Carriers appealed from that order on June 3, 2003. The instant proceeding consolidates appeals of those three orders. The State of Alaska joins the appeal on two issues only, RCA's computation of pre-1997 depreciation and its refusal to set individual Carrier rates. RCA intervened to defend its orders.\\nThe TAPS Carriers, but not the State of Alaska, challenge Order No. 151 on procedural due process grounds over RCA's denial of a motion to recuse staff economist Antony Scott. RCA is authorized by statute to hire \\\"engineers, examiners, administrative law judges, arbitrators, mediators, experts, clerks, accountants, and other agents and assistants.\\\" In 1999, the Alaska Legislature appropriated funds for a staff economist. RCA commissioner Nanette Thompson hired Mr. Scott, a doctoral candidate in economics at the University of Wisconsin Madison. He began his work at RCA in July 2000, several months after RCA's grant of summary judgment to Tesoro to the effect that the Carriers had failed to prove that their filed rates were just and reasonable, and prior to the Carriers' second case-in-chief.\\nUpon learning of Mr. Scott's appointment, the Carriers timely moved on March 12, 2001 for his recusal. At the University of Wisconsin in 1996, Mr. Scott had submitted a master's thesis entitled \\\"The Trans Alaska Pipeline System: The Consequences and Causes of Regulatory Failure.\\\" Mr. Scott argued that aspects of the TSM engendered a windfall for the Carriers because TSM was inadequately tied to costs. Protracted adversary rate proceedings, caused in part by the FERC's reluctance to regulate decisively, gave the Carriers a bargaining advantage. The State of Alaska probably ceded too much at the bargaining table.\\nMr. Scott was acquainted with Mr. Richard Fineberg, an economist who also criticized the TAPS settlement. At the time Mr. Scott was hired by RCA, Mr. Fineberg was hired by RCA's Public Advocacy Section, which operated separately from the commissioners and their advisory staff pursuant to AS 42.04.150. Fineberg subsequently testified in the proceedings below.\\nMr. Scott avers that he read several articles authored by Mr. Fineberg as he researched his master's thesis. Pre-hiring, Scott engaged in telephone and e-mail contacts with Fineberg, who paid Scott $150 for brief research. In April 2000, Fineberg emailed Scott that he had been retained by the Public Advocacy Section to work on the case and that \\\"he had tried but failed to bring [Mr. Scott] in on the case.\\\" Mr. Scott responded that he had been hired to work as advisory staff; Fineberg sent a congratulatory note. At RCA Scott briefly met Fineberg. Scott denied that they discussed any aspect of his thesis, Fineberg's articles or the case at hand.\\nRCA denied the recusal motion, citing AS 42.04.050's authority to hire staff with technical expertise. It distinguished cases cited by the Carriers regarding bias on the part of administrative decisionmakers because Mr. Scott was not one. It analogized Mr. Scott to a \\\"specialized law clerk,\\\" and stated:\\n[W]e must determine whether the highly complex TAPS Settlement Methodology (TSM) results in just and reasonable rates. The assignment we have given Scott is not to investigate independently, or to be an advocate or a witness. Scott is one among a team of advisors, including our administrative law judges, and expert professional financial and engineering staff, who assist us in carrying out our duties. We rely upon our team of advisors to help us understand and evaluate the extensive and highly technical testimony offered by all parties.\\nBecause of his expertise as an economist, Antony Scott is very valuable to us. We cannot readily substitute another advisor, both because of funding limits and because we believe, based on the lengthy process required to hire him, that similarly qualified economists are not easily found.\\nIn this case we have taken some extraordinary measures to assure that our decision-making process is not unduly influenced by any assertions outside the record or by any theories that Scott may have developed in the past on issues relevant to these proceedings. Upon notice of the TAPS Carriers' objections to Scott's work as our advisor, we inquired in detail about Scott's contacts with Fineberg. We explored with Scott the extent to which he is able to segregate and identify for us any philosophical leanings or opinions he may have about the subject matter of this case. Our discussions included his ability to act in a fair and impartial manner to help us understand the technical testimony and opinions of all witnesses in this case.\\nII. STANDARD OF REVIEW\\nIn this consolidated appeal from administrative decisions, the superior court directly scrutinizes the merits of those decisions. The court reviews RCA's factual findings under a \\\"substantial evidence\\\" standard; they should be upheld if supported by relevant evidence that a reasonable person might accept as adequate to support them.\\nAs to questions of law not implicating RCA's special expertise, this court substitutes its own judgment. If RCA employs specialized expertise in a legal determination, the court applies a rational basis standard; RCA's interpretation prevails over the court's, so long as RCA is reasonable.\\nThe deferential \\\"reasonable basis\\\" standard also applies to fundamental policy decisions. But a failure to consider an important factor can undermine the reasonableness of a policy decision. Also, an unexplained failure to. follow agency precedent can erode the deference due a policy decision.\\nIII. DISCUSSION\\na. Failure To Recuse\\nThe TAPS Carriers complain that RCA's refusal to recuse staff economist Scott denied them a fair and impartial hearing, in violation of the due process clauses of both the United States and Alaska Constitutions. Their briefing intertwines citations to federal and Alaska cases. It is useful to first survey federal law.\\nProfessor Richard Pierce, Jr., successor author of the oft-cited Kenneth Culp Davis Administrative Law Treatise, provides an apt introductory summary to the federal law of neutral decision makers:\\nThe concept of \\\"bias\\\" has at least five meanings. Although the five kinds of bias shade into each other, the main ideas about bias in an adjudication may be stated in five sentences, each of which deals with one kind of bias: (1) A prejudgment or point of view about a question of law or policy, even if so tenaciously held as to suggest a closed mind, is not, without more, a disqualification. (2) Similarly, a prejudgment about legislative facts that help answer a question of law or policy is not, without more, a disqualification. (3) Advance knowledge of adjudicative facts that are in issue is not alone a disqualification for finding those facts, but a prior commitment may be. (4) A personal bias or personal prejudice, that is an attitude toward a person, as distinguished from an attitude about an issue, is a disqualification when it is strong enough and when the bias has an unofficial source; such partiality may be either animosity or favoritism. (5) One who stands to gain or lose by a decision either way has an interest that may disqualify if the gain or loss to the decisionmaker flows fairly directly from her decision.\\nThe heart of each of the five propositions is supported by clear and noncontroversial law and by prevailing opinion, except that the first two propositions are commonly misunderstood, especially the effect of a closed mind on issues of law or policy or issues of legislative fact. With that one exception, the problems about the law of bias do not relate to the soundness of the five propositions but relate to their application and to the clear demarcation of each from the others.[ ]\\nThe TAPS Carriers allege that prejudgment of adjudicative facts by a staff member creates an appearance of bias on the part of the three decisionmaker commissioners. They argue that RCA's decision should be vacated pursuant to Cinderella Career & Finishing Schools, Inc. v. FTC if \\\"a disinterested observer may conclude that [the agency] has in some measure adjudged the facts as well as the law of a particular case in advance of hearing it.\\\" The Carriers concede that if Mr. Scott's master's thesis merely amounts to a prejudgment or point of view regarding questions of law or policy (\\\"legislative facts\\\"), due process is not offended. They contend that the thesis instead involves ease-specific or adjudicative facts. The Carriers recognize that Mr. Scott was not a decision maker, but argue that staff bias suffices to taint the entire process.\\nAppellees Tesoro and RCA argue inter alia that the standard for disqualification is not the \\\"prejudgment in some measure\\\" test applicable to adjudicative facts, but rather an \\\"irrevocably closed mind\\\" test which applies to agency prejudgments of legislative facts. They believe Mr. Scott's thesis is best characterized as policy-oriented analysis rather than as a finding of contested facts. They emphasize that Mr. Scott was a mere staffer, and not a decision maker, so his biases could not disqualify the three RCA commissioners.\\nThe test proposed by the TAPS Carriers derives from Cinderella Career & Finishing Schools. During a speech to a press association the chairman of the Federal Trade Commission briefly criticized a charm school for implying that its curriculum opened doors to airline hostess jobs. The charm school's administrative appeal was then pending before the chairman. The Cinderella court concluded that his public remarks created an appearance that he had prejudged the case such that it would proceed \\\"in predestined grooves.\\\" In the light of prior warnings to him in other cases, the court scarcely concealed its disgust for his ethical laxity. Cinderella most squarely stands for the proposition that intemperate public remarks by a decision maker create a constitutionally impermissible appearance of outcome-determinative prejudgment.\\nAs framed by the parties, the issue for decision is whether prejudgment of issues by a staffer in an unpublished master's thesis at a Midwestern university in 1996, triggers the Cinderella standard of \\\"prejudgment in some measure\\\" or the far more deferential \\\"irrevocably closed decision maker mind\\\" standard. Unlike Cinderella, the case at bar is not a public-foot-in-mouth case. Even if fact-finding intrudes into the more predominant analytical drift of Scott's thesis, the aspect of public intemperance so central to Cinderella is lacking.\\nIn Withrow v. Larkin, a state agency investigated a doctor's practices, issued a disciplinary complaint, and then adjudicated the matter. The physician complained that this commingling of investigatory and adjudicative functions violated procedural due process. The U.S. Supreme Court squarely rebuffed the argument that agency investi gations into adjudicatory facts taint subsequent proceedings. The Court noted initially:\\n[Vjarious situations have been identified in which experience teaches that the probability of actual bias on the part of the judge or decision maker is too high to be constitutionally tolerable. Among these cases are those in which the adjudicator has a pecuniary interest in the outcome and in which he has been the target of personal abuse or criticism from the party before him.\\nThe contention that the combination of investigative and adjudicative functions necessarily creates an unconstitutional risk of bias in administrative adjudication has a much more difficult burden of persuasion to carry. It must overcome a presumption of honesty and integrity in those serving as adjudicators; and it must convince that, under a realistic appraisal of psychological tendencies and human weaknesses, conferring investigative and adjudicative powers on the same individuals poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented.[ ]\\nThe Withrow Court did not mention the D.C. Circuit's Cinderella \\\"prejudgment in some measure\\\" standard, announced five years earlier. Rather, the Withrow Court revisited the Court's 1948 decision in FTC v. Cement Institute, In Cement Institute the Federal Trade Commission had investigated and reported in writing to Congress on the legality of an industry-wide pricing mechanism. The Cement Institute Court assumed arguendo that the FTC had formed a prejudgment opinion of illegality, but found that this did not suggest the commissioners' minds were \\\"irrevocably closed\\\" to testimony, cross-examination, and argument. The Withrow Court concluded:\\nThe mere exposure to evidence presented in nonadversary investigative procedures is insufficient in itself to impugn the fairness of the board members at a later adversary hearing. Without a showing to the contrary, state administrators \\\"are assumed to be men of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances.\\\"[ ]\\nUnder Withrow, RCA could have retained an economist to conduct an ex parte investigation of the TAPS rate structure. His findings, indistinguishable from Mr. Scott's thesis, would not disqualify the commissioners. It is therefore difficult to conclude that Scott's employment per se offends federal due process.\\nIn NEC Corp. v. United States, the Federal Circuit explicitly rejected the \\\"prejudgment in some measure\\\" test as unduly abstract and impractical, adopting the \\\"irrevocably closed mind\\\" formulation. In Starr v. Federal Aviation Administration, the Seventh Circuit addressed an issue of staff prejudgment. The FAA's Federal Air Surgeon wrote a position paper opposing case-by-case exemptions to the FAA's mandatory retirement rule for airline captains. Captain Starr sought an exemption, moving to recuse the non-decisionmaker Air Surgeon pursuant to Cinderella. The Court applied a presumption of good faith and affirmed the FAA's refusal to recuse.\\nThe TAPS Carriers assert that the Cinderella test applies to all prejudgment-of-adjudicative-fact cases and that the much less stringent \\\"irrevocably closed mind\\\" test only applies to legislative facts or policy matters. But the Ninth Circuit has rejected any\\nrigid, artificial distinction between rule-making and adjudication_ This is particularly true when the functions of the agency are varied and comprehensive. Due process should not depend upon this distinction but rather upon a specific and practical inquiry into the decision making tasks of the Board and a factual analysis of how the challenged feature could render its decision making process unfair![ ]\\nIn general, most federal decisions reviewing agency bias allegations apply a presumption of regulatory propriety at odds with the vague \\\"prejudgment in some measure\\\" test. Federal cases like Cinderella can best be viewed as responses to egregious official obnoxiousness which gratuitously undermines public trust, rather than as across-the-board standards for all agency prejudgments of arguably adjudicative facts.\\nAlthough the RCA commissioners sought the assistance of an economist to manage voluminous technical testimony, they were not novices in the regulatory field. They heard extensive expert testimony on all issues. The court has not been cited to facts suggesting a practical likelihood that the commissioners were in any sense dominated by the opinions of their staff economist. There is no evidence that any commissioner prejudged any aspect of this ease. There was no public impropriety by any commissioner or staffer.\\nRCA was aware of Scott's thesis and the Carriers' concerns. RCA obtained assurances from him that he would not overstep the bounds of a loyal staffer in an explanatory and advisory role. There is scant likelihood that the commissioners were psychologically or intellectually dominated by their staff member such that the presumption of honest judgment is rebutted. This situation does not approach that zone of egregiousness where federal courts discern a procedural due process violation based on prejudgment bias relegating adjudication to \\\"predestined grooves.\\\"\\nAlaska administrative due process decisions tend to survey both federal and foreign state law. The Court in Amerada Hess Pipeline Carp. v. Alaska Public Utilities Commission did so in its discussion of the due process implications of commingled investigative and adjudicative agency action. Citing Withrow, the court adopted the federal rule allowing adjudicating agencies to first conduct ex parte investigations: \\\"We see no reason to provide broader due process protection under the Alaska Constitution in this instance.\\\"\\nThe TAPS Carriers urge that the unusual fact of Scott's on-point graduate thesis creates an appearance of agency prejudgment that should offend Alaska due process. They characterize the thesis as instinct with fact-finding. But graduate student Scott did not decide whether the butler killed the cook with a candlestick in the library. Rather, he took publicly available data regarding pipeline costs, revenues, taxes, capital structures, and rates of return, plugged them into a standard ratemaking methodology, and concluded that TSM-generated revenues exceeded the standard regulatory paradigm. His thesis was primarily an exercise in analysis, not fact-finding. It is likely that many economists familiar with traditional ratemaking principles would opine that TSM was idiosyncratic and yielded higher-than-normal initial rates. Others might disagree. That Mr. Scott was not a tabula rasa should not per se disqualify him from service. Nothing in the record suggests that this exhaustive rate-making adjudication was in any sense intellectually dishonest because of Scott's involvement.\\nThe TAPS Carriers cite two Alaska cases for the proposition that Mr. Scott's participation offended Alaska's due process clause. In re Robson involves the Alaska Bar Association's disciplinary action against lawyer Robson. The Court found that the Bar Association's executive director was part of the prosecution team. She was present while the Disciplinary Board deliberated upon and decided Robson's fate. The court held that her presence violated due process because both the appearance and the fact of impartiality required that neither prosecution nor defense counsel intrude into the functional equivalent of a jury deliberation.\\nThe TAPS Carriers argue that Robson stands for the broad proposition that \\\"participation by manifestly biased persons in advisory positions violates due process.\\\" But Robson stands more narrowly for the self-evident proposition that all advocates, the prosecution and defense alike, are per se excluded from the jury room or its functional equivalent. The case adds little to the analysis of the readily distinguishable facts of this case; Mr. Scott never intruded into anything akin to a jury deliberation.\\nThe TAPS Carriers also rely upon Vaska v. State. There, a judge's law clerk provided the district attorney's office with a confidential bench memorandum accompanied by a yellow sticky notation indicating that she was advocating for the D.A. sub rosa. She was \\\"an active partisan who was willing to break the rules to benefit the state . with a bias above and beyond philosophical or political bias in favor of the government in criminal cases.\\\" The Court of Appeals held that if she participated to a significant degree in judicial rulings in the case, those rulings should be re-examined by another judge.\\nWhen she purloined the bench memo and composed the yellow sticky, the Vaska law clerk forfeited her presumption of honesty and fair dealing. She became a volunteer prosecution mole. Like the Robson prosecutor, she was a fox-in-the-chicken coop. Both Robson and Vaska involve staffers overstepping well recognized, bright-line boundaries.\\nIn contrast, Mr. Scott did nothing wrong. He authored a scholarly thesis in graduate school. Some years later he landed a job advising a recondite state agency. Whether the job and the thesis are incompatible is a fair question. But resolution of the matter turns on the mainstream constitutional and administrative law analyses in the federal cases cited above, and not on any punctilio of Alaska law analogized from a jury room trespass or a rogue law clerk.\\nAs in Amerada Hess, the Alaska Supreme Court will likely look to federal law to decide the TAPS Carriers' due process challenge and will not perceive it appropriate to adopt a more expansive interpretation of Alaska's due process clause. Under either law, the unrebutted presumption of honesty coupled with the absence of practical indicia that the wills of three fair-minded men and women were overborne by their \\\"specialized law clerk\\\" defeats the claim that Mr. Scott's authorship of an on-point master's thesis disqualifies him from staff service as a matter of constitutional law.\\nb. Alleged Departure from Rate-Base Precedent\\nOrder No. 151 holds that a \\\"[depreciated original cost] methodology applied from the beginning of pipeline operations should be used in this case to determine rates.\\\" The Carriers explain the DOC methodology in an appendix to their opening brief. DOC is expressed by the formula R=Br + T + D + 0. R stands for revenue requirement, the annually recomputed dollar amount the Carriers are permitted to collect through their per-barrel tariff. B stands for rate base, which is the historical capital investment to construct, upgrade or augment the asset. Rate-making permits the owner companies to recover this investment over the life of the pipeline; thus the rate base declines annually. The portion of investment to be recovered in any given year is termed \\\"depreciation.\\\" It is to be distinguished from the more theoretical allowance for diminishment by aging used in financial accounting and tax law.\\nRate of return (\\\"r\\\") is the percentage that the owners are permitted to earn on the constantly diminishing rate base. It is derived from a weighted average of the cost of equity dollars and borrowed dollars invested in the pipeline. The percentage mix of debt and equity dollars is termed the \\\"capital structure.\\\" The cost of debt is the applicable interest rate; the cost of equity is the rate of return to the Carriers allowed by RCA to compensate them for their investment of cap ital. Both costs may be adjusted to compensate for higher than normal risk factors in the construction or operation of the pipeline. The ratio of equity and debt used in rate-making may be derived from book values, or may, as here, be a hypothetical ratio deemed appropriate by the ratemaking authority. Since the return on equity is higher than the return on debt, carriers typically advocate more equity, and shippers more debt, in a deemed capital structure.\\nThe Income Tax Allowance (\\\"T\\\") is added to permit the owners their full after-tax earnings on the equity portion of the capital structure. Operating Expense (\\\"0\\\") allows annual recovery of the gamut of operating expenses including salaries and wages, maintenance costs, and insurance.\\nThe DOC method uses straight-line depreciation, permitting Carriers to recover equal amounts of their investments over the years of the pipeline's life. Alternatively, recovery of capital can be \\\"front-loaded\\\" in the early years of a pipeline's life by applying an accelerated depreciation schedule. Tesoro and Williams argued, and RCA found in Order No. 151, that the TSM rates for all years prior to 1997 were based on accelerated, rather than straight-line, depreciation, and that pre-TSM rates effectively included accelerated depreciation. Order No. 151 calculated the 1996 year-end rate base by applying this accelerated depreciation to the initial post-construction 1977 rate base and to each succeeding annual rate base through 1996. RCA determined the 1996 year-end rate base to be $669 million. From 1997 forward this rate base would be depreciated on a straight-line basis.\\nThe Carriers deny that pre-1997 rates were based on accelerated depreciation. They argue that TSM should be disregarded, and that RCA should simply apply straight-line depreciation from the beginning of the life of the pipeline through 1996, regardless of the depreciation actually collected. Their calculation yields a $3.2 billion rate base for year-end 1996. Order No. 151 implicitly finds that all but $669 million of the Carriers' claimed $3.2 billion rate base had already been recovered; adopting the Carriers' numbers would entail a double recovery of $2.53 billion. This divergence over the correct depreciation and ensuing rate base dwarfs all other methodological disputes in this appeal.\\nThe Carriers and the State allege that RCA departed from agency precedent by employing accelerated rather than straight-line depreciation to establish the year-end 1996 rate base. Two rate cases adjudicated by RCA predecessors have calculated a new rate base midstream in the life of a pipeline. In Cook Inlet Pipe Line an initial intrastate rate case was commenced thirteen years into the life of the affected pipeline. The APUC rejected a \\\"valuation methodology\\\" employed by the Interstate Commerce Commission for interstate rates, and instead chose to impose its standard DOC methodology with straight-line depreciation. APUC similarly applied DOC in Kenai Pipe Line Co. APUC could not discern from the existing record the basis for the prior intrastate rate, and so adopted straight-line depreciation.\\nThe Carriers argue that both cases stand for the proposition that, in midstream rate cases, DOC's straight-line depreciation must be applied from a pipeline's inception to establish the midstream rate base, without consideration of any accelerated depreciation actually collected. Since the only two decided cases proceeded in this fashion, the Carriers perceive an irrational rejection of precedent in RCA's present recognition of historical accelerated depreciation for the TAPS midstream rate-base calculation.\\nIt is useful to cite at some length relevant discussion in Order No. 151:\\nWhen the APUC established a DOC rate base in the middle of the life of the Cook Inlet line, it used actual straight-line charges included under the ICC valuation methodology to calculate the new DOC rate base. Therefore, rather than providing precedent for use of straight-line depreciation when establishing a rate base in the middle of the life of the line, Cook Inlet more precisely stands for the proposition that the actual depreciation charges should be used for calculating future rates.\\nIn Kenai, the APUC could not determine which methodology the Kenai Pipe Line Company (KPL) had used to calculate pri- or intrastate rates. The APUC presumed the prior intrastate rates were calculated under the ICC valuation methodology and under those facts, the APUC concluded that the same straight-line depreciation that was included or was includable in rates computed under the ICC valuation methodology should be used in calculating the new rates.\\nThe APUC ordered the use of straight-line depreciation in Kenai and Cook Inlet because straight-line depreciation was the depreciation actually used to calculate pri- or rates. Kenai and Cook Inlet, therefore, stand for the proposition that when establishing a DOC rate base for an existing pipeline in the middle of the operating life we should apply the depreciation actually used to establish prior rates rather than the depreciation that would or should have been used. Therefore, the Carriers' citations to Cook Inlet and Kenai as precedent for using straight-line depreciation in this case to calculate a DOC rate base are not persuasive. Instead, Cook Inlet and Kenai support using [accelerated] TSM depreciation charges to calculate a mid-stream rate base because that depreciation schedule was used to establish the past rates charged to shippers.\\nThe Carriers argue that RCA misinterprets Cook Inlet and Kenai. But as to Kenai, the agency cited a cold and indeterminate record, found it reasonable to assume the ICC's valuation methodology had in fact been used in the past, and thereupon plugged ICC straight-line depreciation into its DOC formula. If depreciation had been determined by throwing darts, the regulators would have recognized past use of \\\"randomized dart\\\" depreciation, as RCA reads the decision. This court has no basis to disagree with RCA's seemingly reasonable interpretation of Kenai; RCA is entitled to deference based on agency expertise in interpreting the rate-making decisions of predecessor regulatory entities.\\nEven if RCA could be shown to have misread these cases, it is free to fashion an improved procedure for midstream rate-base determinations as long as such is not unreasonable and arbitrary. RCA reasonably finds that it would be poor public policy to allow the Carriers to double collect $2.5 billion of their investment. An avoidance of any double recovery accords with lay notions of fairness and common sense; this court would support RCA in overruling Cook Inlet and Kenai if in fact they mandated a double recovery. RCA has not been shown to be unreasonable or arbitrary in rejecting an outcome that reasonable regulators could find indefensible.\\ne. Depreciation Component of Prior Rates\\nThe Carriers argue that RCA's conclusion, that accelerated TSM depreciation rather than straight-line depreciation was actually collected in the pre-1997 rates, has no reasonable basis in the record. The Carriers note that their initially filed rates took effect in July 1977, well before the advent of TSM. The Carriers argue that the record \\\"clearly and indisputably\\\" establishes that straight-line depreciation was used prior to the 1985 TAPS settlement because, in 1982, the parties to the initial rate litigation stipulated to prospective interlocutory use of straight-line depreciation.\\nThe Carriers contend that the 1982 stipulation remained in force post-settlement. Further, TSM should not be viewed as establishing any individual component of past rates, because it \\\"merely set agreed-upon ceilings above which the TAPS Carriers could not file tariffs, and at or below which the State could not protest the TAPS Carriers' rates.\\\" The Carriers view TSM depreciation as a component of an indivisible settlement. While the State and the Carriers compromised on sundry ratemaking components to arrive at a mutually satisfactory package deal, they argue, neither would necessarily have agreed to TSM depreciation in isolation from other dickered items which rendered the whole acceptable. Thus the Carriers suggest it is unfair to select TSM depreciation as the sole enduring feature of TSM by deeming it actually-collected depreciation.\\n1. Pre-settlement Depreciation\\nRCA found the depreciation stipulation to be, for all practical purposes, irrelevant, because it was superseded by the TAPS settlement. Order No. 151 reads:\\nThe Carriers have urged that using TSM depreciation charges to set rate base for 1997-2000 is inappropriate, because TSM itself contained no depreciation charges for 1977-1983. Instead, the Settlement Agreement set a starting rate base for 1983 year-end and determined depreciation charges for 1984 through the present. The depreciation charges upon which Teso-ro relies are contained in an illustrative exhibit [in support of APUC approval of the 1985 TAPS settlement] known as TSM-6.\\nWe acknowledge that the TSM-6 depreciation charges were not directly used to set tariffed rates for 1977-1983. Rather, until the Settlement was brokered, rates were still being charged according to the originally filed and suspended rates from 1977.... [T]he record shows that the Carriers and the APUC relied on the TSM-6 depreciation charges to arrive at and accept the Settlement's starting rate base.... [A]s a witness for Williams noted, the depreciation contained in TSM-6 was \\\"analogous to setting a rate based on a suspension rate. In other words, the Carriers had made a tentative filing under one rate methodology, and the actual depreciation rates to be used were not established until later.\\\"\\nThus RCA found that TSM was retroactively applied from the pipeline's inception. Tesoro argues that the initial provisional tariffs were excessive and would have engendered refund obligations in the billions if TSM had not retroactively reckoned them to include accelerated depreciation.\\nRCA's finding that pre-settlement depreciation charges were consistent with accelerated depreciation is most specifically supported in the record by the testimony of State's witness Jerome Haas. Mr. Haas was a member of the State's settlement team who participated in the creation of TSM; he testified as both an expert and an occurrence witness. Haas stated that a core settlement goal of the State was to set rates that would decline over time to match declining throughput. Asked how TSM achieved these declining rates, he explained:\\nPrimarily, the steeply declining rate profile was achieved by rapidly depreciating the original, pre-operating TAPS investment over the years 1977-84, i.e. the operational years preceding the settlement_ Applied retrospectively [at the time of settlement] in 1985, the front-loaded depreciation resulted in presettlement rates that were roughly equal to the rates the owners actually collected under their filed tariffs. The State believed those past rates were excessive when judged against a benchmark based on traditional straight-line depreciation schedules, but it was willing to accept them as part of a settlement package that produced reasonable and low tariff rates for 1990 and beyond.... The resulting, accelerated depreciation schedule was one of the most attractive benefits to the State of the TAPS Settlement Methodology. . All parties clearly understood that the effect of using the rapid depreciation I have described would be the relatively quick recovery of invested capital.... At the time of the settlements, it was expected that four-fifths of the original (pre-operational) TAPS investment would be recovered by 1990, even though the system would have operated by then for only about two-fifths of its expected economic life.\\nThis quoted passage substantially supports RCA's conclusion regarding presettlement depreciation. This court may not weigh or balance conflicting testimony of adverse experts; it is merely to ascertain whether RCA had a reasonable basis in the record for determining that the rates filed before settlement included, defacto, accelerated depreciation. The court so finds.\\n2. Significance of TSM Depreciation\\nThe parties do not seriously dispute that TSM employs accelerated depreciation. For example, Carrier expert Adam Jaffe testified that TSM specified a rate base recovery schedule that is much more rapid than the normal ratemaking schedule. Carrier expert Billy Folmar testified that TSM depreciation is unique because it is \\\"front-end loaded.\\\"\\nTesoro argued, and RCA found, that the computation of accumulated depreciation from 1977 through 1996 should be based on the actual depreciation recovered in prior rates. The Carriers argue that TSM did not establish this datum, but merely set a rate ceiling; an individual Carrier was free to charge any rate it chose, concocted under any methodology, so long as the rate fell at or below the ceiling. But the Carriers cite no evidence to this court of discounted rates. The theoretical possibility of below-ceiling rates does not establish the counterintuitive scenario that Carriers, authorized to recover accelerated depreciation, failed to do so. In fact, Carrier witness Billy Folmar testified that no Carrier had voluntarily reduced a tariff below the TSM ceiling:\\nQ: Now if BP Pipeline had ever voluntarily reduced a tariff below the maximum rate it would be shown on line 135 [of its calculation of TSM for the year 2000], wouldn't it?\\nA: That is correct.\\nQ: Are you aware of any carrier prior to 1996 who had a voluntary revenue reduction?\\nA: I'm not aware of one.\\nQ: You went through every individual carrier's form . and you don't remember any voluntary reductions prior to 1996?\\nA: I don't recall that there were any.\\nAbsent proof of discounted tariffs, to characterize TSM as a mere ceiling rate is to quibble. Since the Carriers cite no record evidence of voluntary reductions, their \\\"mere ceiling\\\" argument fails to undercut RCA's conclusion that TSM depreciation equates with depreciation actually recovered.\\nWhen the TAPS settlement was presented to the Federal Energy Regulatory Commission for approval, the State in an Explanatory Statement represented that accelerated depreciation would actually be included in charged rates:\\nThe TSM employs a unit of throughput depreciation schedule which, through negotiations, was accelerated in order to meet the [State's] objective of ensuring a declining tariff profile_ The [State's] objective . required that a large fraction of the original investment be depreciated in the early years of the TAPS. Consequently, the rate base \\u2014 the amount upon which the owners earn their rate of return\\u2014 shrinks rapidly. For example, by 1990 the depreciated cost arising from pre-opera-tional investments in TAPS would be approximately one-fifth of its initial 1977 historic cost, even though about two-thirds of the system's economic life still remains.\\nThe Explanatory Statement further noted that, by 1990, the heavy hand of accelerated depreciation would so dramatically diminish the rate base that the Carriers might lack incentive to continue pipeline service. Therefore TSM would discard the insignificant remaining rate base in 1990 in favor of a more lucrative per-barrel allowance to keep the Carriers in active play.\\nRCA simply had no hard evidence on which it could conclude that the TAPS Carriers acted inconsistently with the provisos of the State's Explanatory Statement, forgoing front-loaded depreciation. The evidence rather consistently tends to refute such a counterintuitive outcome. Tesoro quotes a telling 1989 BP Pipeline memorandum explaining away allegations of excess profits from 1983-1987:\\n[The] ratemaking agreement . front loads the recovery of investment.... [T]hus the TSM depreciation allowance . embedded in the revenues for the period is materially greater than that reflected on the financial records of the carriers.... [W]hile there is certainly substantial cash generation during the period, it reflects primarily the accelerated recovery of investment, not profit.\\nThe author, writing to rebut an inference of windfall profits, supports RCA's conclusion that TSM depreciation was actually \\\"embedded\\\" in the rates collected by the Carriers.\\nThe Carriers contend that the 1982 interlocutory straight-line depreciation stipulation remained in force post-TAPS settlement. The State argues more narrowly that \\\"in the absence of a settlement agreement, this stipulation would have governed the depreciation schedule.\\\" The shippers' position, accords with the testimony of Williams' expert Kenneth Johnston: \\\"I view the TSM undertaking as one that supersedes this stipulation with respect to rate and tariff matters.\\\" This court finds that RCA had before it sufficient evidence to justify a reasoned conclusion that TSM superseded the 1982 depreciation stipulation.\\nFinally, the Carriers and the State contend that no single aspect of the settlement should be considered in isolation from all other elements. Doing so might give the shippers the benefit of one provision of the settlement, without recognition of balancing tradeoffs regarding other features. Neither the Carriers nor the State complain about a full historical review of economic statistics to derive actual annual inputs for the rate formula; but both contend that TSM's status as a negotiated settlement component ipso facto insulates it from inclusion in a historical rate-base computation.\\nThe Carriers offered no concrete evidence that TSM depreciation charges should have been equitably reallocated to other components of TSM. The court has not been cited to evidence that the interests of the carriers were either advantaged or disserved by accelerated depreciation, or that it in fact represented a tradeoff. Absent actual proof establishing why TSM depreciation could or should not survive apart from its settlement context, RCA was not required to discount record evidence that such depreciation was embedded in prior rates.\\nThis court holds that RCA had a reasonable basis to conclude that the rates from 1977 through 1982, filed by the Carriers but never approved on their merits by the Alaska Public Utilities Commission, were sufficiently robust to be deemed inclusive of accelerated depreciation; that the initial rate base and the 1983-85 rates were retroactively established under TSM in accord with its accelerated precept; that the 1982 depreciation stipulation was superseded by the TAPS settlement and had no effect on the initial rate base and subsequent rates; that accelerated depreciation was embedded in all post-settlement rates, and was properly used to derive'the year-end 1996 rate base; and that an artificial reversion to a deemed straight-line depreciation ab initio would unreasonably subject the shippers to the burden of twice compensating the Carriers for a portion of their investment and contravene RCA's mandate to set just and equitable rates.\\n3. Evidence Rule\\nThe Carriers and the State argue that RCA's factual finding that the Carriers actually collected TSM depreciation over a twenty-year period violates a public policy against use of settlement negotiations in subsequent proceedings involving settling parties. They cite Alaska Rule of Evidence 408 and associated ease law. Appellees counter that the rule is irrelevant because it only proscribes use of settlement to prove a disputed claim but does not preclude the shippers from proving such factual matters as the quantum of accumulated depreciation. Rule 408 reads in relevant part as follows:\\nEvidence of (1) furnishing or offering or promising to furnish . a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount.\\nThe court agrees with appellees that the rule is inapposite. By way of analogy, if two competitors settle a dispute by agreeing to fix prices, a victimized consumer is not precluded from proving the bargain to establish damages. Here the State and the Carriers agreed, inter alia, on amounts to be charged shippers for depreciation. The shippers sought an accounting. Without the settlement as Exhibit No. 1, RCA's findings would be divorced from reality.\\nThe TAPS settlement can have no more gravitational force than APUC accorded it. APUC never found it just and reasonable. Instead, the State and the Carriers requested a finding that the public interest was served by the cessation of near-decade long rate litigation. The State's 1986 supporting brief emphasized that APUC retained unfettered discretion in future third-party rate cases:\\n[T]he Commission retains full jurisdiction over intrastate TAPS tariffs; any non-signatory to the agreement . may seek to challenge a tariff filed pursuant to the settlement regardless of whether the tariff complies with the terms of the settlement. . [T]his commission is absolutely free \\u2014 as it should be \\u2014 to establish whatever TAPS tariff rates it finds are consistent with the statutory requirement.\\nSubsequently Petro Star, an affected intrastate shipper not bound by the agreement, filed a rate protest which was settled in 1993. The APUC decreed that any future rate challenges would proceed without deference to the TAPS settlement.\\nThe State fails to explain why, if RCA remained \\\"absolutely free\\\" to establish any tariff consistent with the Pipeline Act, it could not look to the TAPS settlement to measure accumulated depreciation for purposes of a rate-base calculation. Under appellants' analysis, the TAPS settlement commits third parties and RCA to a particular approach in the instant rate adjudication. Perhaps several billion dollars of already recovered depreciation must be included in the midstream rate base.\\nThe court believes such an outcome far exceeds the quite limited imprimatur of approval the APUC accorded the TAPS settlement. The settling parties understood and the APUC announced that the TAPS settlement carried with it no binding effect in subsequent third-party rate protests. To now accord the profound effect urged by the Carriers and the State pursuant to Alaska Rule of Evidence 408 would vest the settlement with a force contrary to the representations of the settling parties and to the APUC's caveat when it accepted the settlement.\\nd. Capital Structure\\nThe Carriers, but not the State, appeal on the ground that the hypothetical capital structure adopted by RCA for the years 1997-2000 included too much debt and too little equity. They allege that no reasonable basis supports this, charging RCA with arbitrarily departing from its own precedents. They urge review with \\\"heightened scrutiny.\\\"\\nThe capital structure of a regulated entity affects its rates. Investors pay income tax on revenues derived from equity capital but not on debt-attributable revenues matched by deductible interest payments. A component of the rate formula holds investors harmless from taxes. Consequently higher levels of equity versus debt financing generally lead to higher rates. Rate makers determine the appropriate capital structure. No party contended that the actual capital structures of the Carriers should be used, in part because the Carriers are limited-purpose subsidiaries which likely could not stand alone. The Carriers instead argued that a composite of the capital structures of the parent oil-producing companies should be used, resulting in a presumed Carrier equity in the pipeline of 75-77% from 1997-2000, or on average 68% from 1968-2000. Tesoro urged that the parent companies were an inappropriate paradigm. RCA accepted Te-soro's model based on a proxy group of stand-alone oil and gas pipeline companies operating in other states, which averaged 50.5% equity.\\nTesoro expert Frank Hanley testified that the capital structure should be consistent with prospective levels of business risk of an enterprise as revealed by the capital structures of similarly situated companies. He analyzed the capital structures of the Carriers' parent companies, comparing that data to a proxy group of five oil pipeline holding companies and four gas pipelines companies, plus twelve subsidiary gas pipeline companies. Hanley noted that the Carriers' parent companies included several of the largest integrated oil companies in the world, with high-risk operations of global scope. He contrasted them to the Carriers, regulated operating oil-pipeline companies in an American state, and concluded that the Carriers were more aptly likened to stand-alone pipeline companies than to the major producer-refmer-petrochemical parent companies.\\nThe five proxy oil pipeline companies averaged 49% equity during 1996-99. For 1999 alone, their average equity was 50.5%. The four gas holding companies averaged 43.7% equity during 1995-99, but only because they were bloated with debt from recent mergers and acquisitions; Mr. Hanley therefore discounted them, and instead relied on the capital structures of the twelve subsidiary gas pipeline companies. Their five-year average equity was 51.6%. Their 1999 equity was 50.7%. Mr. Hanley concluded that in the real world, stand-alone operating pipeline companies subsist with a capital structure of approximately 50.5% equity and 49.5% debt.\\nCarrier expert William Tye addressed the issue of capital structure in his pre-filed testimony. He concluded the average composite capital structure for the Carriers' parent companies should control, but provided no particular reason why this was preferable to a capital structure derived from stand-alone pipeline companies. He testified that the composite capital structure of the parent companies was 22.7% debt to 77.3% equity at year-end 1997.\\nThe issue of the deemed capital structure for TAPS is technical and peculiarly within RCA's expertise. With contrary expert testimony before it, RCA made a plausible decision that the paradigm should be operating pipeline companies rather than oil-producing and refining companies. This court is precluded from second-guessing that conclusion because it is supported by reasonable evidence in the record viewed as a whole.\\ne. Risk Premium\\nThe Carriers contend that RCA imputed an inadequate risk premium to compensate lenders and equity investors for purportedly extraordinary risks inherent to the project. They urge that expert witnesses Dr. Tye and Dr. Gaske aptly estimated the low end of a reasonable risk premium to be 2% on debt and equity, and that RCA erred by assessing a parsimonious .75% risk premium on equity alone.\\nDr. Tye's pre-filed testimony about risk discusses, in an abstract and conclusory fashion, such considerations as the propriety of putting $10 billion investor eggs in one basket; risks of non-completion or non-viability; legal obstacles; escalating construction costs; decreasing world oil prices; possible regulatory setbacks; and Alaska's extreme climate and geography. He concluded that a risk premium should range from 2-5%.\\nRCA's Order No. 151 adopted the Carrier's methodology for computing a risk premium including a prospective view of risks that, in hindsight, proved evanescent. It rejected rote reliance on the data inputs proposed by any one testifying expert. RCA concluded that cited academic studies regarding the risks of unrelated high-cap or high-tech projects like tunnels, subways, airports, toll roads, and power plants were quite possibly apples to oranges comparisons. It decided that, to the extent the pipeline was ever an all-or-nothing gamble, such risk spanned the planning stage only. RCA therefore awarded a risk premium for non-completion due to regulatory and legal uncertainties limited to that stage. It augmented this risk premium for the contingency of cost overruns during construction. In other respects RCA found TAPS less risky than an average pipeline. There was a low risk of inadequate supply of oil; a low risk of competition from alternative carriers; no extra risk of throughput interruption; and no risk of a volatile regulatory climate.\\nThe Carriers argue that a risk premium should be applied to the entire capital structure, both debt and equity. RCA's analysis focuses on the risks to equity investors and does not specifically discuss the risk to lenders in this context. Presumably, the risk to lenders is reflected in the interest rates they charge, for which the Carriers are directly reimbursed in the rate formula. In a related context, RCA noted that TAPS could be ex- peeted to generate funds to cover debt service under almost any scenario. It appears that Dr. Tye was the sole witness to unequivocally endorse a risk premium on debt. RCA was not required to accept his seemingly idiosyncratic approach to risk.\\nRCA's risk analysis was extraordinarily thoughtful and complete. It addressed the contentions and evidence of all parties. It supported its analysis with a thirteen-page single-spaced endnote with eighty-eight citations to the record or to prior cases. It merits the deference courts must apply when reviewing complex decisions implicating agency expertise. This court sustains RCA's findings as supported by the record.\\nf. Return on Equity\\nThe Carriers argue that RCA departed from precedent without adequate explanation when it expanded its purview beyond principle reliance on a discounted cash flow (\\\"DCF\\\") methodology for determining the appropriate rate of return on equity. Instead, RCA averaged the results of four different methodologies.\\nOrder No. 151 states in relevant part:\\nThe parties largely failed to successfully rebut each other's various approaches to determining return on equity. For the most part, the record fails to provide a theoretical or empirical basis for deciding whether any particular method is more appropriate than another. The record also fails to suggest that any of the expert witnesses have applied their chosen methods inappropriately, or have chosen inappropriate data or parameters.\\nWe find Tesoro's expert witness to be the most credible. We base our rate of return findings primarily upon Tesoro's witness's recommendation. Tesoro sponsors multiple methods because it believes investors rely on the widest possible information available. We agree with Tesoro that investors are aware of all the various traditional cost of common equity models discussed in financial literature. Absent good reason for believing that investors weight the results of one method more heavily than another in their assessment of an appropriate rate of return, it is reasonable to hold that investors ascribe weight to them all. We note that the APUC has relied on a variety of methods when those methods were reliable given the specific facts at hand.\\nIn addition, we find Tesoro's DCF analysis the most reliable . we primarily rely upon Tesoro's recommendation....\\nThis passage supports the Carriers' argument that RCA stepped beyond a primary reliance on a DCF methodology to a more catholic acceptance of other methods. But RCA more than adequately explained its reasoning. It found Tesoro's Mr. Hanley to be a compelling expert witness. He, unlike others, testified about how investors actually tick. RCA preferred subtleties of Mr. Han-ley's DCF methodology, as compared to other DCF presenters.\\nThe quoted excerpt from RCA's rate of return analysis reveals that the area is technical; that competing theoretical models are well developed; that RCA understood what it was doing; and that it was thoughtful, conscientious, and discursive. RCA had a reasonable rather than an arbitrary basis, supported by the record, for its approach. A reviewing court is not entitled to probe further. RCA has adequately explained any departure from agency precedent and is supported by the record in arriving at its rate of return conclusions.\\ng. Retroactive Ratemaking\\nRetroactive ratemaking is a regulatory taboo in Alaska and a majority of jurisdictions. Rates may only be altered prospectively, without any attempt to recapture past excess profits, or to redress deficient past revenues. This protects the reliance interest of a utility and its customers in the stability of rates filed by a utility and approved by regulators. In Order No. 151 RCA found that pursuant to TSM the Carriers had the \\\"opportunity\\\" to collect an undeserved $9.9 billion. Yet RCA properly considered any such excess profit as moot, and nothing in Order No. 151 purports to reduce or adjust the 1997-2000 rate structure to account for prior revenue anomalies.\\nNonetheless the Carriers argue that RCA's use of TSM accelerated depreciation to calculate the year-end 1996 rate base \\\"squarely\\\" transgressed the retroactive rate-making prohibition. The argument is predicated on the notion that the 1982 straight-line depreciation stipulation was not superseded by the TAPS settlement agreement, a contention RCA rejected. RCA permissibly found that TSM accelerated depreciation was actually used by the Carriers to compute their rates prior to the instant rate challenge. This finding renders the retroactivity argument untenable. RCA did not meddle with prior rates. It simply parsed a highly customized private settlement to determine what portion of past revenues should fairly be allocated to depreciation.\\nThe Carriers argue that rates pursuant to Order No. 151 should be prospective from its date of issuance, and that the Carriers need not refund excess revenues collected under TSM during 1997-2000 while the rate challenge was pending. The Carriers characterize TSM as sufficiently long-lived by 1997 that it had been de facto ratified by RCA. As such TSM had become impervious to any but the prospective modification allowed in RCA-initiated challenges of previously approved rates under AS 42.06.410(a).\\nRCA found to the contrary in Order No. 151. It held that it had properly suspended the 1997-2000 tariff filings, i.e. it had allowed the rates provisionally subject to post-hearing refunds pursuant to AS 42.06.400. That statute governs revised rates filed by Carriers and judged anew by RCA under its \\\"just and reasonable\\\" standard.\\nPrior to Order No. 151, TAPS tariffs were never approved by RCA as just and reasonable. The initial rates filed in 1977 were challenged. The parties engaged in protracted and expensive litigation until they arrived at a mutually acceptable but sui generis rate-making methodology in 1985. The State and the Carriers alike essentially urged APUC to forgo substantive evaluation of TSM. The State affirmatively argued that APUC could rekindle its inquiry upon any future third-party rate challenge. APUC expressly reserved the right to evaluate rates anew without prejudice from its acquiescence in TSM. The power to suspend rates is a significant adjunct to a rate challenge. Since a rate challenge may demonstrably take years to resolve, RCA cannot do complete justice to a protestant absent a power to affect rates from the time of challenge.\\nWhen rate litigation recommenced in 1997, its character as a review of unapproved rates was intact. Neither Tesoro nor Williams was a party to the TAPS settlement and so neither was bound thereby. They properly sought the review of TSM that was interrupted in 1985. These facts fall within AS 42.06.400's procedure for evaluation of a carrier-generated rate filing. In contrast, AS 42.06.410, which does not permit suspended rates, would more aptly apply if RCA had sua sponte initiated review of rates in which parties enjoyed decisively vested reliance rights, because the rates had previously been found just and reasonable. RCA appropriately distinguished eases cited by the Carriers for a contrary conclusion.\\nh. Unitary TAPS Rate\\nThe Carriers are wholly owned subsidiaries of oil-producing companies. Each Carrier owns an undivided joint interest in the pipeline. The Carriers have jointly formed the Alyeska Pipeline Service Company (\\\"Alyeska\\\") to manage, maintain and operate the pipeline. Each Carrier holds its own certificate of convenience to operate an oil pipeline. In-state consumers such as Te-soro and Williams contract with individual Carriers and are invoiced directly.\\nIn 1983, the Superior Court invalidated individual rates approved by APUC, finding TAPS to be a unity and not eight virtual pipelines. At the request of the parties post-TAPS settlement, that decision was vacated. Thereafter, the Carriers filed rates not exceeding the TSM ceiling; per the settlement, those rates were immune from State challenge. The matter of individual rates became a regulatory non-issue.\\nDuring the instant rate litigation, Carrier and shipper experts agreed RCA should impute to all Carriers identical capital structures with a deemed debt to equity ratio, common interest rates for borrowed capital, and a collective rate of return. The Carriers opted to defend TSM, not with individualized cost data, but instead with an overarching \\\"benchmark\\\" economic model. RCA rejected the model, disagreeing with its inputs and assumptions. RCA set a date for the Carriers to file individual rates based on proof of prudent individual costs, but only so long as the total revenues from all individually and jointly-filed rates did not exceed RCA's revenue entitlement set forth in Order No. 151.\\nOn January 27, 2003, three Carriers filed individual rates for 1997-2000. The ensuing revenue total exceeded RCA's figure. The Carriers again declined to support their filings with individualized cost data. RCA rejected the individual rates, and made final the rates established in Order No. 151. The Carriers and the State appeal.\\nThe parties engage in statutory construction of the Pipeline Act to support their positions. For example, the Carriers discern a clarion legislative mandate that each may file its own rates to be scrutinized in isolation by RCA. Tesoro discerns a \\\"clear\\\" discretionary authority to set a common rate. The State finds it \\\"inescapable\\\" that the Pipeline Act requires individual rates.\\nIn Order No. 151, RCA concluded that AS 42.06.630(17) defines \\\"tariff' to mean a \\\"rate\\\" for a \\\"pipeline facility\\\" for services \\\"furnished by the facility\\\" and not a rate for each individual owner of the pipeline facility. Further, from AS 42.06.370(a), \\\"All rates demanded or received by a pipeline carrier or by any two or more pipeline carriers jointly . shall be just and reasonable,\\\" RCA inferred authority for a single rate imposed on joint owners. Finally, RCA found that nothing in the Pipeline Act precluded it from setting a single rate upon rejection of filed individual rates as unjust and unreasonable.\\nThe parties cite no legislative history. The referenced statutes do not explicitly address the issue. The statutes to which the parties and RCA attribute controlling significance do not definitively reveal a plain meaning.\\nRCA twice afforded the Carriers an opportunity to file rates supported by actual cost data. The Carriers persisted in their more theoretical rate defense. RCA rejected this approach. The Carriers have not shown that RCA's requirements were arbitrary or capricious. Irrespective of the validity of its decision to cap aggregate revenues from individual and joint rates, RCA had an adequate and independent basis to reject individual rate filings by three Carriers, for failure of proof. Absent a compliant defense of the filed rates, RCA can in a sense be viewed as setting individual rates for all Carriers; the individual rates are identical, because no carrier distinguished itself from the pack.\\nThe State argues that the Carriers have filed individual rates for years, and RCA has departed from precedent without adequate explanation. The State does not provide record cites proving prior price competition. Tesoro contends that no TAPS Carrier has ever charged anything but the TSM ceiling, citing testimony to that effect. RCA concluded that the record was insufficient to determine whether the TAPS Carriers ever engaged in price competition amongst themselves.\\nTesoro represents that the five Carriers have no employees. The pipeline itself is operated by Alyeska Pipeline Service Company, which presumably bills the Carriers based on their respective percentages of ownership. Significant items such as debt to equity ratio, cost of borrowed capital, risk factors, and rate of return are imputed to the Carriers in common; the Carriers fault the numbers but not the joint imputation. Individually incurred Carrier expenses may well be a microscopic factor in the rate equation, given that the parties jointly operate the pipeline through Alyeska on a shared-cost basis, and are otherwise imputed invariant capital structures, interest rates, risk factors, and rates of return. The parties do not discuss the extent of the administrative burden imposed on RCA by any statutory mandate to set individual rates.\\nRCA's total revenue cap means that Carriers seeking leave to exceed the unitary rate initiate a zero-sum game; some other Carrier must elect to charge less, so that total revenue remains constant. The scenario is unrealistic. In practical effect, Order No. 151 establishes a unitary rate; its individual rate provision is illusory as to Carriers seeking a rate premium, given the cap.\\nThe court concludes that interpretation of RCA's enabling statutes to arrive at practical parameters requires administrative expertise. RCA's decision to set a unitary rate or highly conditioned individual rates for this jointly owned and operated pipeline applies agency expertise to a fundamental policy question. RCA's interpretation of the Pipeline Act is entitled to deference. RCA's conclusion regarding the statutory scope of its discretion is reasonable and must therefore be sustained by this court. Its exercise of this discretion is supported by the record.\\ni. Interest Rate\\nRCA ordered refunds to affected shippers. Alaska Statute 42.06.400(b) states that the difference between a temporary and permanent tariff, in favor of either a carrier or a shipper, shall bear interest at the rate set forth in AS 45.45.010(a), or 10.5%. RCA so ordered.\\nThe Carriers argue that AS 42.06.400(b) was at least impliedly repealed by the 1997 amendment to the Code of Civil Procedure at AS 09.30.070(a) which established the interest due on civil judgments \\\"[n]otwithstanding AS 45.45.010.\\\" The statute applies a floating interest rate based on the Federal Reserve discount rate to judgments in civil litigation filed in the superior or district court. The annual rate may be greater or lesser than the 10.5% legal rate of interest established in AS 45.45.010 for other purposes. For 2006, the floating rate for civil judgments is 8.25%.\\nThe amendment of AS 09.30.070 was a component of a comprehensive tort reform act. The legislature's intent to relieve society of perceived excesses or irrationalities in civil litigation was discussed in Evans ex rel. Kutch v. State:\\nThe legislative goals underlying the damages caps, as well as the rest of chapter 26, SLA 1997, are explicitly stated in chapter 26, section 1, SLA 1997. Specifically, section 1 states that the legislation was intended to (1) discourage frivolous litigation and decrease the costs of litigation; (2) stop \\\"excessive\\\" punitive damages awards in order to foster a \\\"positive\\\" business environment; (3) control the increase of liability insurance rates; (4) encourage \\\"self-reliance and independence by underscoring the need for personal responsibility\\\"; and (5) reduce the cost of malpractice insurance for professionals![ ]\\nNothing in the Tort Reform Act's stated rationale suggests a more general purpose to repeal the legal interest rate applicable outside the context of tort and contract cases. Had the legislature wished to repeal the interest provision of the Pipeline Act when it passed tort reform legislation in 1997, it would logically have done so expressly, and indicated why it was ranging so far a field from its statement of intent. Nothing in the Tort Reform Act evinces an intention to affect anything but tort and contract litigation. Alaska Statute 09.30.070(b) is specifically tailored to tort and contract claims, linking the initial interest accrual date to written notice of a claim; the provision makes little sense in RCA's sphere. RCA appropriately followed the mandate of the Pipeline Act to order interest at the legal rate set forth in AS 45.45,010.\\nIV. CONCLUSION\\nThis court affirms the decision of RCA in all respects. Points on appeal not specifically addressed in this decision are denied as without merit.\\nDated this 18th day of January, 2006 at Anchorage, Alaska.\\n/s/ John Suddock Superior Court Judge\\nThe superior court's Decision and Order has been edited to conform to our style and formatting requirements and most internal citations have been omitted.\\n.The eight original owners were subsidiaries of Amerada Hess, ARCO, BP, Exxon, Mobil, Sohio, Phillips and Union. Mergers and transfers have reduced their number to five. They are BP Pipelines (Alaska), Inc.; ExxonMobil Pipeline Company; Phillips Transportation Alaska, Inc.; Unocal Pipeline Company; and Williams Alaska Pipeline Company, L.L.C.\\n. The same order is also styled Order No. 110 in related Docket P-97-7 (collectively, \\\"Order No. 151\\\").\\n. AS 42.06.140 and .410(a).\\n. The statutory basis for jurisdiction is found in AS 22.10.020(d), AS 42.06.480(a), and AS 44.62.560-.570.\\n. Re Amerada Hess Pipeline Corp., 13 APUC 448, 456 (1993).\\n. Id.\\n. AS 42.04.050.\\n. Alyeska Pipeline Serv. Co. v. DeShong, 77 P.3d 1227, 1231 (Alaska 2003).\\n. Id.\\n. Id.\\n. Ninilchik Traditional Council v. Noah, 928 P.2d 1206, 1217 (Alaska 1996).\\n. Totemoff v. State, 905 P.2d 954, 967-68 (Alaska 1995).\\n. U.S. Const, amends. V, XIV; Alaska Const, art. I,\\u00a7 7.\\n. 2 Richard Pierce, Jr., Administrative Law Treatise \\u00a7 9.8, at 648-49 (4th ed.2002).\\n. 425 F.2d 583, 591 (D.C.Cir.1970).\\n. FTC v. Cement Inst., 333 U.S. 683, 68 S.Ct. 793, 92 L.Ed. 1010(1948).\\n. Cinderella Career & Finishing Sch., 425 F.2d at 590.\\n. FTC v. Cement Inst., 333 U.S. 683, 68 S.Ct. 793, 92 L.Ed. 1010 (1948). The phrase \\\"irrevocably closed decision maker mind\\\" is this court's, not the Cement Institute Court's.\\n. 421 U.S. 35, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975).\\n. Id. at 47, 95 S.Ct. at 1464 (emphasis supplied).\\n. 333 U.S. 683, 68 S.Ct. 793, 92 L.Ed. 1010 (1948).\\n. Withrow, 421 U.S. at 55, 95 S.Ct. at 1468.\\n. 151 F.3d 1361 (Fed.Cir.1998).\\n. 589 F.2d 307 (7th Cir.1979).\\n. United Farm Workers of Am., AFL-CIO v. Arizona Agric. Employment Relations Bd., 727 F.2d 1475 (9th Cir.1984) (citation omitted).\\n. Cinderella, 425 F.2d at 590.\\n. 711 P.2d 1170 (Alaska 1986).\\n. Id. at 1180.\\n. 575 P.2d 771 (Alaska 1978).\\n. 955 P.2d 943, 946-47 (Alaska App.1998).\\n. Id.\\n. 6 APUC 527 (1985).\\n. 12 APUC 425 (1992).\\n. Alyeska Pipeline Serv. Co. v. DeShong, 77 P.3d 1227, 1231 (Alaska 2003).\\n. Re Amerada Hess Pipeline Corp., 13 APUC 448, 456 (1993).\\n. Matanuska Elec. Ass'n v. Chugach Elec. Ass'n, 53 P.3d 578 (Alaska 2002).\\n. State v. Alaska Pub. Util. Comm'n, 3AN 80-7163 Cl (Alaska Super.1983).\\n. TC Init. Br. 123-24, citing variously AS 42.06.630(15) (defining \\\"pipeline carrier\\\" as \\\"the owner,\\\" including corporations organized under the laws of the United States or of any state of any pipeline . any interest in it); AS 42.06.245 (\\\"[T]he requirements of this chapter for permits and certificates of public convenience and necessity . apply to . a pipeline or pipeline carrier.\\\"); AS 42.06.350(a) (\\\"every intrastate oil pipeline carrier shall file . all rates . pertaining to service provided under the certificate\\\"); AS 42.06.140(3) (RCA shall \\\"require just, fair, and reasonable rates . for pipeline carriers\\\"); and AS 42.06.370(a) (requiring that \\\"all rates demanded or received by a pipeline carrier be just and reasonable\\\").\\n. Tesoro Br. 119-20, citing AS 42.06.140 (broad general regulatory powers); AS 42.06.370(a) (rates charged by \\\"a pipeline carrier, or by any two more pipeline carriers jointly\\\" shall be just and reasonable); AS 42.06.630(a) (\\\"tariff\\\" means a \\\"rate . of a . pipeline facility relating to services furnished by the facility\\\"); AS 42.06.630(15) (\\\"pipeline carrier\\\" means the \\\"owner, including corporations . of any pipeline\\\"); AS 42.06.630(14) (\\\"pipeline\\\" or \\\"pipeline facility\\\" includes \\\"all the facilities of a total system of pipe\\\").\\n. See discussion supra at \\u00b6 111(c)(2).\\n. DeNuptiis v. Unocal Corp., 63 P.3d 272 (Alaska 2003).\\n.56 P.3d 1046, 1053 (Alaska 2002) (footnotes omitted).\"}"
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+"{\"id\": \"8394486\", \"name\": \"David and Joyce JACOB, Appellants, v. STATE of Alaska, DEPARTMENT OF HEALTH AND SOCIAL SERVICES, OFFICE OF CHILDREN'S SERVICES, and Marcie Kennai, Deputy Commissioner, Appellees\", \"name_abbreviation\": \"Jacob v. State, Department of Health & Social Services, Office of Children's Services\", \"decision_date\": \"2008-03-07\", \"docket_number\": \"No. S-11663\", \"first_page\": \"1181\", \"last_page\": \"1188\", \"citations\": \"177 P.3d 1181\", \"volume\": \"177\", \"reporter\": \"Pacific Reporter 3d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T20:58:17.395741+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, and CARPENETI, Justices.\", \"parties\": \"David and Joyce JACOB, Appellants, v. STATE of Alaska, DEPARTMENT OF HEALTH AND SOCIAL SERVICES, OFFICE OF CHILDREN\\u2019S SERVICES, and Marcie Kennai, Deputy Commissioner, Appellees.\", \"head_matter\": \"David and Joyce JACOB, Appellants, v. STATE of Alaska, DEPARTMENT OF HEALTH AND SOCIAL SERVICES, OFFICE OF CHILDREN\\u2019S SERVICES, and Marcie Kennai, Deputy Commissioner, Appellees.\\nNo. S-11663.\\nSupreme Court of Alaska.\\nMarch 7, 2008.\\nJames J. Davis, Jr., Alaska Legal Services Corporation, Anchorage, for Appellants.\\nMegan R. Webb, Assistant Attorney General, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for Appellees.\\nBefore: FABE, Chief Justice, MATTHEWS, EASTAUGH, and CARPENETI, Justices.\", \"word_count\": \"3940\", \"char_count\": \"24392\", \"text\": \"OPINION\\nCARPENETI, Justice.\\nI. INTRODUCTION\\nDavid and Joyce Jacob are the grandparents of three children who were taken into custody by the Office of Children's Services (OCS) in 2000. Despite dozens of timely attempts to communicate with OCS seeking information about their grandchildren and requesting that the children be placed in their home rather than remain in foster care, and despite the Jacobs' status as joint custodians of their grandchildren under an order of the superior court in Washington, the Jacobs were not given notice of and did not have an opportunity to be heard in any of the Child in Need of Aid (CINA) hearings which occurred during the first three and one-half years that their grandchildren were in OCS's custody. In 2004 the Jacobs retained counsel and brought a separate suit seeking declaratory judgment and injunctive relief regarding their rights to receive notice and be heard in their grandchildren's CINA proceedings. The superior court dismissed the suit, instructing the Jacobs to instead inter vene in the CINA proceedings. They have since done so.\\nThe Jacobs appeal the superior court dismissal, arguing that they have not received all the relief to which they were entitled and seeking broader injunctive relief to correct an allegedly systemic failure by OCS to provide grandparents with statutorily required notice. OCS concedes that the Jacobs may be entitled to declaratory relief but argues that most of the Jacobs' case is now moot because the Jacobs have received all the relief to which they are entitled and because the Jacobs lack standing to seek injunctive relief on the broader claims.\\nWe accept the state's concession on the issue of declaratory relief. We also conclude that there is a present, live controversy in which the Jacobs have a continuing stake and that the Jacobs will benefit from a declaratory judgment that OCS violated their statutory rights. Accordingly, we accept the state's concession on the issue of declaratory relief and reverse and remand for entry of declaratory judgment in the Jacobs' favor. We hold that all other issues are moot due to the Jacobs' subsequent intervention in their grandchildren's CINA proceedings.\\nII. FACTS AND PROCEEDINGS\\nA. Facts\\nMinors A.K., D.L., and E.H. are the grandchildren of David and Joyce Jacob. The mother of the three children struggled with drug dependency and as a result the Jacobs often assumed care of their grandchildren. In 1997 a Washington state court granted the Jacobs joint custody of the children with their mother In 1999 the Jacobs agreed that the children could move to Alaska with their mother because she had been sober for quite some time. But in 2000 the mother relapsed, and in October 2000 the children were taken into custody by the Office of Children's Services (OCS).\\nWhen the Jacobs learned from the children's mother in December 2000 that OCS had custody of the children, they immediately sent a letter to OCS stating that they were the children's grandparents, had joint custody, and wanted OCS to place the children in their care. OCS did not respond to the letter and the children remained in foster care. Between December 2000 and March 2004 the Jacobs made dozens of attempts to communicate with OCS, including leaving messages for the caseworker and the caseworker's supervisor, Tim Fox. On one occasion, Fox allegedly told the Jacobs that they were too old to care for the children.\\nOver the next three and one-half years OCS never sent the Jacobs notice of any court hearings regarding their grandchildren's CINA proceedings, including those that occurred after the September 2001 effective date of amendments to the CINA statutes requiring grandparent notice. During that time period the Jacobs never filed a motion to formally intervene in their grandchildren's CINA cases and never filed a petition requesting that the children be placed in their care.\\nB. Proceedings\\nIn March 2004 the Jacobs filed a complaint for declaratory and injunctive relief in supe rior court. They sought judgment declaring that OCS violated Alaska law by failing to place their grandchildren in their care and by failing to provide them with notice of their grandchildren's CINA proceedings and permanency hearings. The Jacobs also sought injunctive relief compelling OCS to provide them and \\\"all other grandparents similarly situated\\\" written notice of all hearings in CINA proceedings involving their grandchildren, as well as an opportunity to be heard in their grandchildren's permanency hearings. The Jacobs also requested that the court place their grandchildren with them until and unless OCS could show by clear and convincing evidence that such placement would result in physical or mental injury to the children. The Jacobs requested court costs and reserved the right to later seek attorney's fees.\\nThe state responded with a motion to dismiss under Alaska Rule of Civil Procedure 12(b), alleging lack of jurisdiction, improper venue, lack of standing, and failure to state a claim upon which relief may be granted. The Jacobs opposed the motion to dismiss and cross-filed a motion for partial summary judgment.\\nSuperior Court Judge John E. Reese granted OCS's motion to dismiss and declared the Jacobs' summary judgment motion moot. Judge Reese found that \\\"[ajlthough the department's failure to give them notice is a serious oversight, the Jacobs' due process rights have not been violated, since . they may request placement in the CINA case.\\\"\\nThe Jacobs have subsequently intervened in their grandchildren's CINA cases and pursued this appeal. OCS argues that the appeal is moot because of the intervention in the CINA cases. The Jacobs contend that they are seeking relief that cannot be granted within the CINA cases, and that to the extent their complaint is moot, we should apply the public interest exception to the mootness doctrine.\\nDuring oral argument the parties altered their positions somewhat, with OCS indicating that it had no objection to our vacating the order of dismissal and remanding for entrance of an order of declaratory judgment in favor of the Jacobs. The Jacobs also stated that they sought no relief broader than that necessary to satisfy their own claims.\\nIII. STANDARD OF REVIEW\\nWe review the superior court's grant of a motion to dismiss pursuant to Rule 12(b)(6) de novo, \\\"construing the dismissed complaint liberally, and assuming the truth of the facts it alleges.\\\" Such dismissals \\\"are viewed with disfavor and should only be granted on the rare occasion where 'it appears beyond doubt that the plaintiff can prove no set of facts in support of the claims that would entitle the plaintiff to relief.' \\\" We review the superior court's dismissal of a declaratory judgment action under the abuse of discretion standard. The trial court's decision to grant or deny injunctive relief is likewise reviewed for an abuse of discretion.\\nWe apply our independent judgment to questions of law, adopting \\\"the rule of law most persuasive in light of precedent, reason, and policy.\\\" Mootness presents a question of law to which we apply our independent judgment. Standing and ripeness are also questions of law, calling for independent judgment review.\\nIV. DISCUSSION\\nA. The Jacobs Are Entitled to Declaratory Relief.\\nThe Jacobs sought a judicial declaration that OCS violated their statutory rights by failing to place their grandchildren in their care, by failing to give them notice of all the court hearings in the CINA cases, and by failing to give them notice and an opportunity to be heard in the permanency hearings. In his order Judge Reese began by noting that the CINA statutes (1) indicate a clear preference for placing children with relatives rather than in foster care and (2) include grandparents in the list of parties who must receive advance notice of CINA proceedings. Next, Judge Reese noted OCS's concession that the Jacobs did not receive notice of hearings held after the September 2001 effective date of the amendments requiring such notice. Finally, Judge Reese concluded that \\\"the department's failure to give them notice is a serious oversight.\\\"\\nThe state argues that with these statements \\\"the trial court essentially granted the declaratory relief.\\\" We disagree. The superior court dismissed the Jacobs' claims and thus did not create an enforceable order for the Jacobs to use in the CINA proceedings. Moreover, the superior court's statements were heavily qualified by its subsequent statement that \\\"the Jacobs' due process rights have not been violated, since . they may request placement in the CINA case.\\\"\\nBecause the Jacobs never sought a declaration specifically regarding their due process rights, we decline to comment on this issue extensively. We do note, however, that notice of proceedings and a meaningful right to be heard are essential to due process, and that there are situations in which the right to intervene in the late stages of a CINA case will be insufficient to cure the prejudice of the initial due process violation. Timely notice and opportunity to be heard are especially important in situations involving the placement of children.\\nHere the Jacobs were not given notice of any of the initial CINA hearings involving their grandchildren. While the crucial laws regarding grandparent notice did not take effect before the initial decisions concerning their grandchildren were made, we note that from an equitable standpoint the Jacobs did not receive an opportunity to be heard in this case until it was already too late. The Jacobs were not consulted for early placement despite their status as legal custodians and concerned relatives of the children. By the time they navigated their way through the web of bureaucracy, retained counsel, and entered a courtroom, many years had passed \\u2014 an amount of time even more significant for children \\u2014 and their grandchildren had formed bonds with their foster parents such that an OCS home study concluded that it was not in the children's best interest to move into the Jacobs' home. We do not have sufficient facts to determine whether the lapse of time was prejudicial to the Jacobs, nor to determine whether the children ought to have been placed with them initially, but we will consider whether the superior court erred when it dismissed the Jacobs' claim for a declaratory judgment that recognizes that OCS violated their statutory rights.\\nOCS argued in its brief that we should dismiss the declaratory judgment portions of the Jacobs' appeal on mootness grounds. But at oral argument the state conceded, in accordance with its briefed position that declaratory judgment had already been granted, that it had no objection to an order vacating the dismissal and remanding for an entry of declaratory judgment for the Jacobs. Given the disturbing factual history of this case, the state's concession appears to be well-taken.\\n\\\"A claim is moot if it has lost its character as a present, live controversy.\\\" Where the party bringing the action would not be entitled to relief even if successful, there is no \\\"case or controversy\\\" for us to resolve. Issues are moot where the appel lant has already received relief. \\\"Mootness can also occur when 'a party no longer has a personal stake in the controversy and has, in essence, been divested of standing.' \\\"\\nThe Jacobs' claim for a declaratory judgment is not moot because the Jacobs retain an ongoing stake in a present, live controversy. A declaration of the Jacobs' rights will continue to benefit them in their dealings with OCS. We are troubled by OCS's history of refusal to provide the Jacobs with notice of agency decisions or actions relating to their grandchildren, and resistance to including the Jacobs in them grandchildren's CINA proceedings. We also recognize that, given this history, the Jacobs' current status as interveners in their grandchildren's remaining CINA cases does not preclude the possibility that OCS will again fail to provide the Jacobs with notice or an opportunity to be heard. For example, although the Jacobs' eldest grandchildren are currently under the guardianship of their foster parents, OCS could again violate the Jacobs' rights if the agency fails to notify the Jacobs of any disruption in the guardianship or fails to consider the Jacobs first in priority for a new placement. In addition, the remaining CINA proceeding for the Jacobs' youngest grandchild is still under way. Although the Jacobs currently enjoy intervener status in those proceedings, OCS could again violate the Jacobs' rights if the agency fails to provide them with notice and an opportunity to participate in any additional proceedings that become necessary in the future. A declaratory judgment from the superior court that acknowledges the failure of OCS to meet its statutory duty to the Jacobs and that specifically recognizes the Jacobs' rights to receive notice of future OCS hearings relating to their grandchildren will materially benefit the Jacobs.\\nAs noted above, the state conceded at oral argument that it had no objection to an order vacating the dismissal and remanding for an entry of declaratory judgment for the Jacobs. We do so now, because the Jacobs are entitled to judicial declaration that they have a right to notice of any CINA proceedings involving their grandchildren. The Jacobs are also entitled to a declaration that their right to notice was violated by OCS when they did not receive notice after the September 2001 effective date of the amendments requiring such notice.\\nB. The Remaining Injunctive Relief Requests Are Moot.\\nOCS argues that we should dismiss the Jacobs' claims for injunctive relief as moot. As stated above, issues are moot when the appellant has already received relief. OCS contends that the Jacobs' claims for injunc-tive relief are moot because \\\"they have already received or declined to pursue every item of relief that they requested in the trial court.\\\"\\n1. Injunctive relief on their own behalf\\nThe Jacobs' initial complaint sought three forms of injunctive relief on their own behalf: (1) notice of all hearings in CINA proceedings involving their grandchildren; (2) notice and an opportunity to be heard in all permanency hearings involving their grandchildren; and (3) immediate placement of their grandchildren unless OCS could show by clear and convincing evidence that such placement would cause physical or mental injury to the children.\\nFollowing the superior court's dismissal of their claims, the Jacobs successfully intervened in their grandchildren's CINA cases. The Jacobs and OCS eventually agreed to a visitation plan that includes having the children spend two to three weeks with the Jacobs every summer. OCS agreed to notify the Jacobs within forty-eight hours if the guardianship placement is disrupted and also agreed to consider the Jacobs first for placement, if needed. The guardianships of D.L. and A.K. were approved by the superior court in January 2006 and OCS subsequently released them from custody. Only E.H., the youngest, remains in OCS custody. In her pending case, the Jacobs have intervener status.\\nThus the Jacobs have in the cases of all three grandchildren received the first two categories of injunctive relief that they sought: notice of CINA proceedings and an opportunity to be heard at permanency hearings. Because the Jacobs have intervener status in E.H.'s case, and because our decision today regarding declaratory relief will leave the Jacobs with an enforceable statement of their rights in any future CINA proceedings, the Jacobs present no live controversy here.\\nWith respect to the third form of injunctive relief, placement of the children, this matter has been adjudicated and settled by the superior court handling the CINA cases of the older two children and is currently under review for E.H., the youngest child. As previously noted, the Jacobs decided not to request full custody of the children out of concern for their best interests. With respect to E.H., the superior court handling her CINA case has jurisdiction and the Jacobs can exercise their right to be heard within that proceeding. Finally, the Jacobs effectively concede that the superior court handling the CINA case, and not the superi- or court in which this separate suit was filed, retains proper jurisdiction over E.H.'s status and custody.\\nThe Jacobs argue that the fact that one of the CINA cases is still open makes it \\\"hard to conceive of how this lawsuit is moot.\\\" But the crux of their suit below was the denial of their opportunity to be heard, which has since been resolved \\u2014 to the extent that it could be at this late stage \\u2014 through the Jacobs' actual participation in various hearings and intervener status. The Jacobs' additional request for custody of E.H., if it is even still desired by the Jacobs, is appropriately evaluated through the remaining CINA proceedings. Because we agree with the state that the Jacobs have either been granted or declined to pursue all the injunctive relief that they requested on their own behalf, we hold that the injunctive relief requests they made on their own behalf are moot.\\n2. Injunctive relief on behalf of similarly situated grandparents\\nIn their briefing the Jacobs argued that they have not received the relief they requested on behalf of similarly situated grandparents. Namely, the court did not issue an injunction compelling OCS to provide similarly situated grandparents with an opportunity to be heard in all relevant CINA proceedings. In oral argument, the Jacobs appeared to retreat from this position to some degree, stating that they were seeking no more relief than necessary for full relief in their own case. Because the Jacobs' requested relief has adequately been addressed, and because the Jacobs did not file a class action suit, we decline to address the Jacobs' request for injunctive relief on behalf of similarly situated grandparents.\\nC. Heretofore Unstated Damages Claims\\nThe Jacobs note that had the case been allowed to proceed past the pleading stage they \\\"would have possibly amended their complaint to seek damages.\\\" They did not include any damages claim in their complaint to the superior court. The Jacobs argue that because Civil Rule 26 disclosures and discovery have not occurred in this litigation they \\\"have [not] yet had a fair chance to state any tort claim against the OCS.\\\" Because the Jacobs provide no legal support for the notion that claims that they have not yet stated could be grounds for reversing dismissal of the case, we decline to address these hypothetical claims or their potential merits.\\nY. CONCLUSION\\nWe VACATE the order of dismissal with respect to the declaratory judgment and REMAND for entry of declaratory judgment consistent with this opinion. We AFFIRM on mootness grounds the remainder of the decision.\\nBRYNER, Justice, not participating.\\n. The following facts are taken largely from the Jacobs' complaint. Because we are reviewing a complaint that was dismissed, we treat the factual allegations of the complaint as if they were true. Lowell v. Hayes, 117 P.3d 745, 750 (Alaska 2005).\\n. Despite the importance of the Jacobs' status as custodians of the children, the Jacobs specifically seek redress as grandparents and not as individuals with legal custody.\\n. For ease of reference, we refer to both OCS and its predecessor agency, the Department of Family and Youth Services, as OCS.\\n. AS 47.10.030(d), effective September 23, 2001, provides in relevant part:\\n. [T]he department shall give advance written notice of all court hearings in a child's case to a grandparent of the child if\\n(1) the grandparent has contacted the department, provided evidence acceptable to the department of being the child's grandparent, requested notice about the hearings in the child's case, and provided the department with a current mailing address; or\\n(2) the department is aware that the child has a grandparent and the grandparent's mailing address is on file with the department.\\nA simultaneous amendment to the general notice provision, AS 47.10.030(b), added qualifying grandparents to the list of individuals who \\\"shall be given notice\\\" regarding a child's proceedings. Ch. 43, \\u00a7 1, 2, SLA 2001.\\n. Lowell, 117 P.3d at 750.\\n. Id. (quoting Angnabooguk v. State, Dep't of Natural Res., 26 P.3d 447, 451 (Alaska 2001)).\\n. See id.\\n. Betz v. Chena Hot Springs Group, 657 P.2d 831, 837 (Alaska 1982).\\n. Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979).\\n. Peter A. v. State, Dep't of Health and Soc. Servs., Office of Children's Servs., 146 P.3d 991, 994 (Alaska 2006).\\n. Gilbert M. v. State, 139 P.3d 581, 586 (Alaska 2006).\\n. Evans v. Native Village of Selawik IRA Council, 65 P.3d 58, 60 (Alaska 2003).\\n. Cf. Matanuska Maid, Inc. v. State, 620 P.2d 182, 193 (Alaska 1980) (holding that where contestant actually appears and presents his claim no due process violation has occurred \\\"assuming the inadequacy of notice in the present case did not hinder preparation or presentation of arguments \\\") (emphasis added).\\n. Peter A., 146 P.3d at 994.\\n. Id. (quotation omitted).\\n. Fairbanks Fire Fighters Ass'n, Local 1324 v. City of Fairbanks, 48 P.3d 1165, 1168 (Alaska 2002).\\n. Ulmer v. Alaska Restaurant & Beverage Ass'n, 33 P.3d 773, 776 (Alaska 2001) (quoting 15 Martin H. Redish, Moore's Federal Practice \\u00b6 101.90 (3d ed.1998)).\\n. See supra at 1185.\\n. Fairbanks Fire Fighters Ass'n, 48 P.3d at 1168.\\n. As discussed in more detail below, the Jacobs also requested injunctive relief on behalf of other grandparents similarly situated. In its briefing, OCS addressed the Jacobs' personal injunctive relief requests separately from their requested relief on behalf of others. Because the legal theories for each are different, we do likewise, focusing first on whether the Jacobs' request for injunctive relief on their own behalf is moot.\\n. The Jacobs effectively concede that they were not entitled to the third item of injunctive relief that they requested, the placement of their grandchildren. They state, \\\"[w]hile the superior court in this matter could not have entered orders for the Jacobs as to the placement of their grandchildren, such matters being before the CINA court, it plainly had jurisdiction to consider and rule on the Jacobs' other claims....\\\" Thus, the Jacobs appear to waive any appeal of the failure to grant placement of the children.\"}"
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+"{\"id\": \"8404158\", \"name\": \"Ralph K WINTERROWD, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee\", \"name_abbreviation\": \"Winterrowd v. Municipality of Anchorage\", \"decision_date\": \"2006-07-26\", \"docket_number\": \"No. A-09233, A-09234\", \"first_page\": \"592\", \"last_page\": \"593\", \"citations\": \"139 P.3d 592\", \"volume\": \"139\", \"reporter\": \"Pacific Reporter 3d\", \"court\": \"Alaska Court of Appeals\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T18:25:43.898010+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.\", \"parties\": \"Ralph K WINTERROWD, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee.\", \"head_matter\": \"Ralph K WINTERROWD, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee.\\nNo. A-09233, A-09234.\\nCourt of Appeals of Alaska.\\nJuly 26, 2006.\\nRachel Plumlee, Municipal Prosecutor\\u2019s Office, Anchorage.\\nRalph Winterrowd II, Wasilla.\\nBefore: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.\", \"word_count\": \"126\", \"char_count\": \"845\", \"text\": \"Order\\nPetition for Rehearing\\nUpon consideration of Winterrowd's petition for rehearing,\\nIT IS ORDERED:\\n1. Winterrowd declares that he did not produce his vehicle registration during the traffic stop of January 3, 2004. Accordingly, the first sentence of the second paragraph of our decision is amended to read: \\\"During the January 3rd traffic stop, Winterrowd produced his driver's license, but he did not produce his registration or proof of insurance.\\\"\\n2.In all other respects, the petition for rehearing is DENIED.\\nEntered by the direction of the Court.\"}"
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+"{\"id\": \"8504361\", \"name\": \"SUTTER et al. v. HECKMAN et al.\", \"name_abbreviation\": \"Sutter v. Heckman\", \"decision_date\": \"1900-07\", \"docket_number\": \"No. 1,164\", \"first_page\": \"81\", \"last_page\": \"94\", \"citations\": \"1 Alaska 81\", \"volume\": \"1\", \"reporter\": \"Alaska Reports\", \"court\": \"Alaska District Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T18:13:42.742420+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"SUTTER et al. v. HECKMAN et al.\", \"head_matter\": \"SUTTER et al. v. HECKMAN et al.\\n(First Division. Juneau.\\nJuly Term, 1900.)\\nNo. 1,164.\\n1. Fish \\u2014 Game.\\nTlie right to taire fish in the sea or tidal waters of Alaska is one common to all persons, and no exclusive grant will he presumed.\\n3. Public Land \\u2014 State\\u2014Tide Lands.\\nThe owner of uplands bordering upon the sea in Alaska has no proprietorship in the tide lands lying immediately in front of his property. The title to such tide lands is held by the United States, in trust for the future state.\\n3. Same \\u2014 Prescription\\u2014Tide Lands.\\nThe title to tide lands in Alaska feeing held in trust fey the United States for the future state, no presumption of a grant to an occupier will be admitted, nor title fey prescription recognized?-\\n4 Same \\u2014 Easement\\u2014Injunction\\u2014Tide Lands!\\nThe owner of uplands bordering on the seashore in Alaska has the right of ingress and egress between his land and the sea over tide lands. Injunction will protect him in the exclusive enjoyment of his rights.\\nThe complainants, on July 30, 1900, filed their bill in this court, praying for a perpetual injunction against respondents. Upon reading the bill of complaint, an order was issued out of this court to the respondents, requiring them to show cause why a temporary restraining order should not issue against them. On the 8th of August, 1900, the defendants presented and filed a general demurrer to the bill of complaint, and on the 9th day of August, 1900, on the order to show cause, respondents offered certain oral evidence in support of their contention, and the complainants offered evidence in support of their bill of complaint and the relief therein prayed for.\\nThe evidence submitted and the demurrer, so far as the same may bear upon the order to show cause, will be considered together. It is alleged in the bill that on May 17, 1884, the date of the passage of the act of Congress providing for a civil government for Alaska (23 Stat. 24, c. 53), Charles Dicksop, a native Alaskan Indian, was the owner, by right of appropriation and possession, of a certain parcel of land thereinafter described, situated at Ketchikan, on Tongass Narrows, in the District of Alaska; that the said Dickson and his ancestors had for more than 100 years been the occupants and possessors of said land, subject only to the paramount title, before the cession, of the Russian crown, and thereafter of the United States; that said Dickson con veyed to one Berry; that the title of said Dickson, by various conveyances, has come down to the complainants in 1899 (all of which said conveyances are set forth in the bill), and that the plaintiffs have been in possession since the date last aforesaid; that the land so conveyed borders on Tongass Narrows at high-water mark, and runs from a monument on the eastern bank of Ketchikan creek along the shore of Tongass Narrows one mile to a second monument, and back from the shore a quarter of a mile, the land claimed being a tract of about 160 acres; that plaintiffs and their grantors have been in possession of said lands since conveyed by said Indian, and have improved the same, from time to time, by the erection of valuable buildings thereon, such as \\u201cboarding houses, packing houses for fishing, store, dwelling,\\u201d etc., of a value of more than $40,-000 ;\\u25a0 that they have, from year to year, cleared the beach from d\\u00e9bris, so as to make it valuable and convenient for landing fish thereon; that from the 17th day of April, A. D. 1888, when conveyance was made by Dickson, to the present time, complainants and their grantors have made useful, valuable, and profitable use of the said land and improvements; that there are valuable fishing grounds along the water front of said lands on either side of Ketchikan creek, and large numbers of salmon are taken yearly from said waters; that on either side of said creek are tide flats that are alternately covered and uncovered by the ebb and flow of the sea, and which afford excellent ground for taking and landing salmon during the fishing season; that the flats have been used by complainants and their grantors and by the Indian and his ancestors for a hundred years or more; that said fishing business is a profitable industry; that in pursuing said business the complainants have sold to Carl A. Sutter certain of the uplands above described, and he has erected thereon a large cannery at an expense of $50,000; that by the terms of the contract of sale it was covenanted that said Sutter should be kept and maintained in all the fishing and riparian rights on said tide flats and connected with the said water front along the land before-described, and that he should be protected in the possession thereof, and from interference therewith for fishing purposes; that plaintiffs and their grantors have had and enjoyed the exclusive right of fishing on the waters abutting on said uplands and of using said beach and tide flats for landing fish for all times mentioned in their complaint to the 21st day of July, 1900, at which time the respondents so arranged and planted their nets as to wholly exclude plaintiffs; from said fishing grounds, and prevent them from casting their nets or from taking or landing any salmon whatsoever;; that respondents have ever since, and now are, so using said fishing grounds and so planting their nets as to cork the nets of complainants, and are intentionally excluding complainants therefrom, and from all use thereof in fishing; that respondents\\u2019 purpose is to crush complainants, and to destroy their business; and that they have done complainants-great injury, and will, by continuing such practice, do them irreparable injury, unless restrained.\\nThe evidence of complainants and respondents tends to show that each party put out its nets and landed fish in turn, neither interfering with the other; that nets of respondents were sometimes landed upon the possessions of the complainants above high tide; that there was' some slight friction between the fishermen, the respondents taking the lion\\u2019s share, to the detriment of the complainants; that the shore line where fish were in the main taken and landed was about 500 feet long, and that nets of any party taking salmon at this point would occupy the entire shore line of 500 feet to the exclusion of all others; that no two parties could take fish at this point, near and at the mouth. of Ketchikan creek, at the same time; that when more than one is engaged in fishing they must spread their nets in turn, one party waiting while the other makes its haul; that' until this year respondents have never fished at this point, and complainants have had the unrestricted use of the fishing grounds, the respondents buying of complainants; and that the \\u201ctide flats\\u201d each year become incumbered with rocks, logs, and d\\u00e9bris, and complainants are compelled to clear this away each year before the salmon season, in order to land fish thereon. No denial is made, either by answer, oral evidence, or affidavit, of complainants\\u2019 claimed ownership of the upland above high tide.\\nWinn & Shackleford, for plaintiffs.\\nOscar Foote, for defendants.\", \"word_count\": \"4459\", \"char_count\": \"25557\", \"text\": \"BROWN, District Judge\\n(after stating the facts as above). It is claimed by complainants that their ownership and possession of the upland bordering on the tide waters gives them certain exclusive rights to the tide flats; that no one except the United States can or should be permitted to prevent their ingress or egress to and from their upland possessions to the fishing grounds adjacent, and that the occupation of said tide flats by others in taking and landing thereon does hinder, delay, and for a time prevent the free enjoyment of their upland property, and their egress therefrom and ingress thereto in landing fish upon their own possessions, to the practical destruction of their fishing rights. It is also claimed that they have certain prescriptive rights.\\nOn the other hand, it is claimed by the respondents that they have a right, in common with all others, to take salmon in and about the mouth of Ketchikan creek, to spread their nets in tide waters, and to occupy said tide flats in landing their fish; that complainants have no exclusive right, nor better right than they or others desiring to take fish at the same point.\\nWe have, then, these questions for consideration, viz.: (i) Have all persons, subject to regulations by Congress, a'common and equal right to fish in the tide waters and to utilize the tide flats in common for such fishing purposes ? (2) Do those persons owning and occupying uplands bordering on the tide waters acquire any exclusive or superior right to fishing grounds and the tide flats lying opposite such uplands and adjacent thereto by reason of such ownership of the upland? (3) Have complainants acquired prescriptive rights which entitle them to exclude others from the fishing grounds in question ?\\nIt would seem that to discuss the question of the common right of persons to fish in the navigable waters of the United States, after the many decisions of the courts of our country upon the question, would be a work of supererogation. That the right is one common to all, except in cases of private grant, cannot be doubted, if, indeed, there has ever been chance of doubt since the Magna Charta. Chalker v. Dickenson, 1 Conn. 382, 6 Am. Dec. 250; Collins v. Benbury, 25 N. C. 277, 38 Am. Dec. 722; Carson v. Blazer, 4 Am. Dec. 463; Commonwealth v. Chapin, 5 Pick. 199, 16 Am. Dec. 386; Cobb v. Davenport, 33 N. J. Law, 223, 97 Am. Dec. 718.\\nIn Tinicum Fishing Co. v. Carter, 61 Pa. 21, 100 Am. Dec. 597, Judge Sharswood says:\\n\\\"Independently of the acts of assembly, there are no exclusive rights of fishing by riparian proprietor opposite to his shore in any navigable river. In England the king has no power, and since the Magna Charta never had, to grant an exclusive right of fishing in an arm of the sea. A private and several right to fish in a navigable river must have had its origin before the Magna Charta.\\\"\\nIn Shively v. Bowlby, 152 U. S. 5, 14 Sup. Ct. 548, 38 L. Ed. 331, it is said:\\n\\\"Lands under tide waters are incapable of cultivation or improvement in the manner of lands above high-water mart. They are of great value to the public for the purposes of commerce, navigation, and fishery. Their improvement by individuals, when permitted, is incidental or subordinate to the public use or right. Therefore the title and control of them are vested in the sovereign for the benefit of the whole people.\\\"\\nThe title and rights of riparian or littoral proprietors of the soil below high-water mark are governed by the laws of the several states, subject to the rights granted to the United States by the Constitution. The United States, while they hold the country as a territory, having all the powers both of the national and municipal government, may grant, for appropriate purposes, titles or rights in the soil below high-water mark or tide waters. But they have never done so by their general laws.\\nThe court is forced to hold in this case that the right to fish in the tide waters about the mouth of Ketchikan creek is a common one, and the complainants and respondents were and are upon an equality in taking fish in the said tide waters, unless the complainants have acquired some exclusive rights or privileges by grant, prescription, possession, or as owners of the uplands. The rights of the owners of uplands in tide flats and fishing grounds have been frequently determined by state and federal courts, and the law governing them seems to be well settled.\\nIt has been held by many of the state courts of last resort that the owner of lands adjoining navigable water, whether within or above the ebb and flow of the tide, has, independently of local law, a right of property in the soil below high-water mark, and a right to build out wharves, so far at least as to reach water really navigable. This same theory, un der the influence of the state statutes, has been indulged in by the federal courts in a few cases; especially in Dutton v. Strong, 1 Black, 23, 17 L. Ed. 29; R. R. Co. v. Schurmeier, 7 Wall. 272, 19 L. Ed. 74; Yates v. Milwaukee, 10 Wall. 497, 19 L. Ed. 984; St. Clair v. Lovingston, 23 Wall. 46, 23 L. Ed. 59. But by the later decisions of the courts it is established that the rights of riparian or littoral proprietors in the soil below high-water mark of navigable waters are governed by local laws of the several states, subject only to the rights granted to the United States by the Constitution. In the case of Weber v. Harbor Commissioners, 18 Wall. 65, 21 L. Ed. 798, Mr. Justice Field, in speaking of the right to occupy the tide lands, said:\\n\\\"Any erection thereon without license is, therefore, deemed an encroachment upon th\\u00e9 property of the sovereign, or, as it is termed in the language of the law, a 'purpresture,' which he may remove at pleasure, whether it tend to obstruct navigation or otherwise.\\\"\\nAgain, in Atlee v. Packet Co., 21 Wall. 389, 22 L. Ed. 619, a riparian proprietor had no right, without statutory authority, to build out piers into the Mississippi river, as necessary parts of the boom to receive and retain logs until needed for sawing at its mill by the water side. In Hardin v. Jordan, 140 U. S. 371, 11 Sup. Ct. 808, 838, 35 L. Ed. 428, the court said:\\n\\\"With regard to grants of the government for lands bordering on tide water, it has been distinctly settled that they only extend to high-water mark, and that the title to the shore and lands under water in front of lands so granted inures to the state within which they are situated, if a state has been oz-ganized and established there.\\\"\\nMr. Justice Gray, in Shively v. Bowlby, 152 U. S. 49, 14 Sup. Ct. 566, 38 L. Ed. 331, says:\\n\\\"The Congress of the United States, in disposing of the public lands, has constantly acted upon the theory that those lands, whether in the interior, or on the coast above high-water mark, may be taken up by actual occupants, in order to encourage the settlement of the country; but that the navigable waters and the soils under them, whether within or above the ebb and flow of the tide, shall be and remain public highways; and, being chiefly valuable for the public purposes of commerce, navigation, and fishery, and for the improvements necessary to secure and promote those purposes, shall not be granted away during the period of territorial government.\\\"\\nAfter discussing a great many cases, state and federal, involving this question, this same distinguished jurist states his conclusions as follow:\\n\\\"Lands under tide waters are incapable of cultivation and improvement in the manner of lands above high-water mark. They are of great value to the public for the purposes of commerce, navigation, and fishery. Their improvement by individuals, when permitted, is incidental or subordinate to the public use and right. Therefore the title and control of them are vested in the sovereign for the benefit of the whole people. At common law the title and dominion in lands flowed by the tide were in the king for the benefit of the nation. Upon the settlement of the colonies, like rights passed to the grantees in the royal charters, in trust for the communities to be established. Upon the American Kevolution these rights, charged with a like trust, were vested in the original states, within their respective borders, subject to the rights surrendered by the Constitution of the United States. The new states admitted into the Union since the adoption of the Constitution have the same rights as the original states in the tide waters and in the lands under them within their respective jurisdictions. The title and rights of riparian or littoral proprietors in the soil below high-water mark, therefore, are governed by the laws of the several states, subject to the rights granted to the United States by the Constitution.\\\"\\nThe conclusion reached by the Supreme Court of the United States in Shively v. Bowlby controls this court. To the conclusions reached by the court in that case I give my most hearty assent. There is no longer room for the discussion of the question, and it should be deemed settled for all time. The court is therefore compelled to hold in this case that, if the complainants were the owners in fee of the uplands claimed by them, their riparian or littoral rights would give them no control whatsoever of the tide lands or lands below high-water mark.\\nBut it is claimed by the learned attorney for complainants that they have acquired interests in the tide flats below high-water mark by prescription. It has been sometimes held that, where parties had held fishing grounds from time immemorial, a grant would be presumed. The tide lands in all territory acquired by the United States have been held in trust, it is said, by the United States for the benefit of the new states that might be carved out of such territory. The United States has avoided making grants of the tide lands to individuals or corporations, and, while the general government undoubtedly has the right and power to grant, for appropriate purposes, rights in the soil below high-water mark of tide waters, the fact that it has never done so destroys any claim of grant from the United States by reason of control of' such lands for a great period of time. No-presumption of a grant can arise where no grant has ever been made by the only authority having power to make it. The lands below high water in tide waters and in navigable streams under control of the states have been disposed of by grant under the authority of the Legislature of the several states. Where grants have been made under such conditions, it has sometimes been held that a party holding the possession, or exercising the right of fishery within certain limits for a number of years might obtain a title by prescription; a grant presumed because of the lapse of years and the continuous right exercised by the party. But statutes of limitation do not run against the king or against the state. Jaynes v. Wilkinson (Kan. App.) 42 Pac. 735; Redfield v. Parks, 132 U. S. 239, 10 Sup. Ct. 83, 33 L. Ed. 327; Smith v. Smith (Kan. Sup.) 8 Pac. 385; Rhodes v. Smith, Id. 391. It is believed to be clear that the complainants in this case and their grantors have gained no rights by prescription in the tide lands in complainants' petition described.\\nBut it is said that the respondents have at times landed their nets, when taking fish, upon the lands of the complainants above high-water mark. As the complainants allege ownership in this land, and nothing has been presented, either by allegation or evidence, to controvert their right of ownership, it will be accepted for the purposes of this case. As the owner of the uplands, the complainants have an unquestioned right of way over the tide flats lying below high-water mark to the deep water. It appears by the testimony of some of the witnesses that there is only about 500 feet along the line of the complainants' lands where the tide and overflowed lands are of a character suitable for landing fish with seines. It also appears, or is claimed, that the plaintiffs and their grantors have, from time immemorial, us'ed these lands along the 500 feet of their shore line as a fishery, and for the purpose of passing from their land to the deep water of the sea, and landing fish from their seines in returning from the sea. The unrestricted right of free passage to and from the deep waters for such purpose is one that may be properly maintained by the plaintiffs as an exclusive right, and may be maintained by them as against all persons except the United States. In Weber v. Harbor Commissioners, the court seems clearly to recognize the propriety of this doctrine in the use of the following language;\\n\\\"That a riparian proprietor, whose land is bounded by a navigable stream, has the right of access to the part of the navigable stream in front of his land, and to construct a wharf or pier projecting into the stream for his own use or the use of others, subject to such general rules and regulations as the Legislature may prescribe for the protection of the public. \\\"\\nThis is a right of highway; an easement, but not an ownership. It is, however, a valuable right to the owner of land bordering upon tide waters, and should be protected.\\nThe United States undoubtedly holds the title to these lands, and might dispose of them according to its choice; but no rules or regulations have been adopted by the United States for the control of its tide lands under circumstances like those presented in this case, and it is believed the riparian \\u2022owner may only properly use these lands and have the exclusive right of user for the purpose of going to the deep water and returning from it in landing fish, etc., but that the riparian owners might build wharves upon those lands, and occupy them to the exclusion of all others, until required to remove the same by the United States.\\nThe Congress of the United States has enacted some rules governing the right of fishery in Alaskan waters, among which is the following:\\n\\\"That it shall toe unlawful to fish, cateto, or kill any salmon of any variety, except with rod or spear, above ttoe tide-water of any creek or river of less than five hundred feet in width in the territory of Alaska, except only for the purpose of propagation, or to lay or set any drift net, set net, trap, pond net, or seine, for any purpose, across the tide-waters of any river or stream for a distance of more than one-third the width of such stream or channel, or lay or set any seine within one hundred yards of any other net or seine which is toeing laid or set in said stream or channel,\\\" etc. Act June 9, 1896, c. 387, 29 Stat. 316.\\nThe testimony in this case discloses the fact that the respondents used seines of more than 150 fathoms in length, that would cross, when spread, the entire channel of the mouth of Ketchikan creek, and that they used their nets in drawing in their fish, not only upon the tide flats, but at times to points above high water on the lands of the complainants, and that they held the same upon the tide flats from time to time in such a manner as prevented the egress, and ingress of the riparian owners across these tide flats to deep water, and in returning to deep water after having spread their nets. It is said that the respondents \\\"alternated\\\" with the complainants in spreading their seines and drawing in the seines upon the banks, but that, when complainants did not move as quickly as respondents seemed to think they should, the latter did not wait for complainants to alternate with them, but again occupied the grounds-to the exclusion of complainants. It is evident to the court that the complainants were hindered and prevented by respondents from the free use of their right of way from the uplands to the deep waters, over the 500 or 600 feet of tide lands described by the witness Martin in his testimony; that such hindrance and delay by the respondents, and their action in preventing the complainants' free access to the deep water and return therefrom, were unlawful, and should not be permitted. The court is unable to understand why the respondents, who are engaged in the business of canning and taking salmon at various points along the coast, should seek to interfere with others in like business. Ordinary respect for the rights of others, and common decency and discretion in the management of their business, would seem to require these men, who are occupying other grounds, to the exclusion, perhaps, of other fishermen, to seek at least to-establish a custom of protection of their own fishing rights' and grounds by noninterference with others, instead of wantonly encroaching upon their ground. To allow such things to continue would result in quarrels, and probably bloodshed, as well as in destroying the business of fishermen conducting the same in a fair and legitimate way. Public poney seems to indicate that this should not be permitted. It is evident from the testimony that respondents have used seines in an unlawful manner in setting them across the entire mouth of the creek. It is the evident intention of the law that seines should not be so set as to prevent the passage of salmon to their spawning places; hence the requirement that they should not be permitted to extend more than one-third the width of the stream.\\nUntil Congress shall have enacted some laws that shall fully determine the rights of parties situated as these complainants are, or until some higher court shall overturn the decision of this court, the court will endeavor at least to protect persons who have made settlement upon lands bordering upon tide waters, and made valuable improvements thereon, in their rights of exclusive highway from their own lands over the tide lands between themselves and the deeper water of the sea for purposes of taking salmon and landing fish without hindrance from others. It must not be understood that persons can claim unlimited rights in this behalf. And, though complainants claim to own a mile of the shore, it seems that only 500 or 600 feet thereof are used and necessary for spreading seines and landing the same. Such a width of highway for this business is not unreasonable, and in the exclusive use of this complainants will be protected by the order of the court.\\nA temporary injunction and restraining order will be allowed to the complainants pending the trial of this cause upon filing a good and sufficient bond, to be approved by the clerk of this court.'\"}"
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+"{\"id\": \"8842200\", \"name\": \"In re KAKE SCHOOL DIST.\", \"name_abbreviation\": \"In re Kake School Dist.\", \"decision_date\": \"1946-08-28\", \"docket_number\": \"No. 5380-A\", \"first_page\": \"186\", \"last_page\": \"197\", \"citations\": \"11 Alaska 186\", \"volume\": \"11\", \"reporter\": \"Alaska Reports\", \"court\": \"Alaska District Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T23:42:16.568264+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"In re KAKE SCHOOL DIST.\", \"head_matter\": \"In re KAKE SCHOOL DIST.\\nNo. 5380-A.\\nDistrict Court of Alaska. First Division. Juneau.\\nAug. 28, 1946.\\nWm. L. Paul, Jr. and Henry Roden, both of Juneau, for petitioner. .\\nSimon Hellenthal and R. E. Robertson, both of Juneau, for protestant.\", \"word_count\": \"3184\", \"char_count\": \"18983\", \"text\": \"KEHOE, District Judge.\\nOn June 5, 1945, certain persons, 47 in number, describing themselves as citizens of the United States, over the age of twenty-one years and bona-fide residents of the community known as \\\"Kake\\\", in the First Judicial Division of the Territory of Alaska, filed in this court a petition praying that Kake and adjacent territory be incorporated as a school district in conformity with the provisions of Sections 1311\\u2014 1326, Compiled Laws of Alaska 1933. The petition alleges that there is an adult resident population in excess of 300 within the boundaries of the proposed school district, and that there reside 90 children between the ages of six and seventeen years therein.\\nAfter a hearing on the petition the Court then sitting granted an application by P. E. Harris & Co., a corporation, the operator of a salmon cannery near Kake, to file a protest to the granting of the petition as to its property within the proposed school district, alleging that its cannery and property are valued at several hundred thousand dollars and that its salmon canning plant is located about % mile from the village of Kake and one mile by shortest land route via a road which runs between Kake and the plant. The protest continues:\\n\\\"That said Gunnock Creek, upon which are situated Protestant's said water rights and dam-site, is about one-half to three-quarters of a mile distant from the village of Kake, Alaska, and is between said village and said salmon cannery plant; that the area intervening between said village and said salmon cannery plant is a wilderness unimproved and unpopulated except by said road and a bridge across said Gunnock Creek and two or three Indian shacks or cabins situated below said road and in the brush between Gunnock Creek and said salmon cannery plant, and also save by said Protestant's said improvements of dam-site, flume and pipelines; that said shacks or cabins are not permanently occupied save as hereinafter stated.\\nV\\n\\\"That all or the great majority not only of the petitioners who signed said petition but also of the adult as well as school population of the area proposed by said petition to be included within the boundaries of said proposed school district make their permanent residences in said village of Kake itself, and none of them live upon the lands owned by Protestant or upon which its aforesaid improvements are situated, and the only all year around residents, so far as Protestant is informed and believes and therefore alleges, in the entire area between said Gunnock Creek and said salmon cannery plant, and in fact for a considerable portion of the distance extending northerly from said Gunnock Creek toward said village, is one Indian family whose daughter, a girl about 12 years old, is the only child of school age who lives in the area just so described during the time of the year when school is or would be normally conducted.\\nYI\\n\\\"That the sole and only purpose of including within the boundaries of said proposed school district Protestant's said property is to render it subject to the jurisdiction of said school' district for tax purposes and not because of any school children residing in that or immediate adjacent vicinity; that Protestant's said property would be practically the only property within said proposed school district that would be subject to such taxation, except as hereinafter stated; that the village of Kake itself is situated upon a portion of what is known as the patented townsite of Kake and all the land thereof is non-alienable and, if taxable, could not be seized and sold for nonpayment of taxes; in fact, the patent for said townsite was issued in 1933 and included an area of 96.78 acres of which 76.598 acres are un-subdivided; that the remaining 20.184 acres are subdivided into town lots but the Indian claimants of said lots have failed and refused to accept deeds from the United States of America to said lots, and the title to all of said land still remains in the United States of America, through James Ramsey, Trustee, in trust for the Indian people, including said petitioners, of Kake; that only one other tract, so far as Protestant is informed and believes and therefore alleges, is taxable by said school district which is situated within the proposed boundaries of said proposed school district, but the value of such other tract, including the personal property thereon, does not exceed $15,000 to $25,000; that the Indian residents of Kake could not be compelled to pay any taxes for the use of said school district, except taxes upon their personal belongings and possibly upon their houses which are located upon said non-alienable land; that should Protestant's said property be included within said proposed school district, it will be the chief and practically only source from which by taxation to raise revenues for use in operating said school district.\\nVII\\n\\\"That said village of Kake and the area upon which Protestant's said salmon cannery plant and other improvements are situated, are two separate and distinct districts, with no connection between them except said road, and are not in juxtaposition to each other, and are without any common community ties or needs, and the inclusion of Protestant's property within the boundaries of said proposed school district would be of no benefit whatsoever to Protestant or to its property and could serve only one purpose, namely: to compel Protestant to pay the larger share, if not in fact, practically all, of all such taxes as would be levied by the school board of said school district after its organization.\\\"\\nThe protest prays that the petition be denied to the extent of excluding all of protestant's land and improvements and rights, both real and personal property, from the school district to be formed.\\nPetitioners filed, first, a demurrer to the protest, on the grounds that it failed to state facts sufficient to constitute a protest and, second, a motion to strike the protest from the files on the grounds that it is frivolous, immaterial and irrelevant.\\nThe provisions of law governing the incorporation of school districts outside of incorporated towns so far as they relate to the petition and protest are as follows:\\nSection 1311: \\\"School Districts Outside Incorporated Towns. Any town, village or settlement in this Territory outside the lirhits of any incorporated town, having a population of one hundred or more, and thirty children between the ages of six and seventeen years, may incorporate as a school district in the manner hereinafter provided, but such school district shall not embrace more than forty square miles of territory. Provided, however, that where such district contains more than thirty children between the ages of six and seventeen years, the school district may embrace one hundred fifty square miles.\\\" Chap. 19, Sess.L.1937.\\nThe manner of incorporation is prescribed by Section 1313, Compiled Laws of Alaska 1933, as follows:\\n\\\"Manner of incorporation; petition; election. The manner of incorporation of school districts shall be as follows: A petition praying for such incorporation shall first be presented to the judge of the District Court of the judicial division in which the proposed school district is located. Such petition must be signed by at least thirty citizens of the United States or persons who have declared their intention to become such, over the age of twenty-one years, who' are residents of the proposed school district, and shall specify as nearly as may be the location, boundaries and number of inhabitants of the proposed school district, and specify the name or number by which it is to be known. The judge of the District Court, upon presentation and filing of such petition shall order an election in said proposed district for the purpose of determining whether the people of the community desire such incorporation, and shall, by said order, designate the date of such election and appoint three qualified voters in the proposed school district to arrange for, supervise and appoint judges and election officers for such election. A printed or typewritten copy of said order shall be posted at three public places within the limits of the proposed school district for at least thirty (30) days prior to the day of election and such posting shall be sufficient notice of such election.\\\"\\nSections 1314-1315, C.L.A.1933, define the qualifications of electors at school district elections and the duties of election judges.\\nSection 1316 is as follows:\\n\\\"District, established; name or number. If a majority of the votes cast at said election are in favor of incorporation, the District judge, by an order in writing entered in the records of the court, shall adjudge and declare that the community in which such election has been held, is a school dis trict corporation, and tibie same shall thenceforth exercise the powers hereinbefore and hereinafter designated, and such other powers as may be granted by law. Said order shall designate the school district by name or number and may correct or more definitely describe its boundaries.\\\"\\nThe remainder of the sections dealing with the incorporation of school districts outside of incorporated towns relate to election judges, canvass of returns, school boards, classes of directors and the method of levying and collecting taxes to support the schools thus incorporated.\\nThe question to be decided both upon the demurrer and motion to strike the protest, is the sufficiency of that protest in light of the statutes just quoted.\\nIt will be noted that Section 1313, C.L.A.1933, provides the manner of incorporation, so far as this Court is concerned, by directing the Judge of the District Court, upon the presentation and filing of a petition for such incorporation, to issue an order for an election in the proposed district for the purpose of determining whether the people of the community desire such incorporation, and shall by said order, designate the date of election and appoint three qualified voters to arrange for, supervise and appoint judges and election officers for the election.\\nIt is clear that the petition must comply with the law. It must be signed by at least 30 citizens of the United States, or persons who have declared their intention to become such, who are over the age of twenty-one years who are residents of the proposed school district. It shall specify as nearly as may be the location, boundaries, and number of inhabitants of the proposed school district, and shall specify the name or number by which it is to be known.\\nNo hearing before the Court is provided for by the statute as is the case with petitions for the incorporation of cities of the first class, where the Legislature has seen fit to prescribe as a prerequisite to the granting of the petition that the District Judge shall give a \\\"fair hearing\\\" to those who are in favor of and those who are opposed to the incor poration, and then states: \\\"And if he be satisfied that it is for the best interest and welfare of the community to incorporate as a city, he shall by order so adjudge, and he may, by the order, change or modify the proposed boundaries,\\\" Comp.Laws 1933, \\u00a7 2372, clearly indicating the intention of the Legislature to vest in the District Judge the power to grant or deny the petition.\\nThere is no doubt that the Legislature has the power to establish school districts. To do so is unquestionably one of the rightful subjects of legislation. Its right has never been questioned in Alaska, and it seems universally conceded elsewhere that state Legislatures have full and exclusive power to create, organize and establish school districts. 56 Corpus Juris 197. The Legislature may likewise delegate such power. 56 Corpus Juris 199.\\nHaving delegated that authority to the District Judge, the Legislature defines and limits his powers to the granting of an order of election and to the correction and description of the boundaries of the district. Nowhere is he empowered to limit the area by restricting the incorporation to less than 4(3 square miles, or in an appropriate case, to less than 150 miles.\\nUnder the heading of delegation of power to create, organize or alter school districts, 56 Corpus Juris 199 has this to say:\\n\\\"Subject always to the rule that the legislature may not authorize the exercise of any power or the doing of any acts which exceed or transgress constitutional limitations, a subordinate agency so designated or established has such powers, and such only, with respect to the creation, establishment and alteration of school districts and organizations as may be conferred upon it by statute, which powers may be exercised only in such mode and manner, for such purposes, and subject to such conditions and restrictions, as are thereby prescribed, and which may be enlarged, diminished, or taken away at the will of the legislature.\\\"\\nWith relation to mandatory provisions of a statute, Corpus Juris, Vol. 56, page 216 says:\\n\\\" and where the terms of the statute are mandatory, the presentation of a proper petition requires the officer or board to which it is presented to take action in accordance therewith, provided the officer or board determines that the petition is sufficient and that the action sought is authorized by the statute.\\\"\\nIf it is held that this Court may eliminate from the boundaries of the proposed school district the properties of the protestant for the reasons set forth in its protest it seems reasonable then to follow that the Court may also eliminate other properties and it may so emasculate the district as to make it what it wills. Can it be said with reason that this was the clear intention of the Legislature when it said that the Judge of the District Court, upon presentation and filing of a sufficient petition shall order an election.\\nProtestant states that its property is separated from the inhabited community of Kake by a wilderness unimproved except by a road connecting Kake with its property and two or three Indian shacks and by protestant's dam-site, flume and pipe-lines, and is unpopulated except by one Indian family whose daughter is about 12 years of age. It further complains that the inclusion of its property in the area sought to be incorporated is for the sole purpose of rendering it subject to taxes for school purposes.\\nIn the case of St. Joseph & G. I. Ry. Co. v. School District No. 2, Doniphan County, 114 Kan. 67, 217 P. 296, 297, the county superintendent of public instruction made an order undertaking to change the boundary of a school district so that it should include a portion of a railway bridge. The railway company sought by a quo warranto proceeding to oust the school district from jurisdiction over the added area, contending that the extension to include the bridge would benefit no one, and also contending it was done only for the purpose of providing additional revenue.\\nThe Court in that case sustained the demurrer to the petition, saying: \\\"There was no more reason for exempting it (the bridge) from school taxation because it was not capable of affording a place of residence for pupils than in the case (for instance) of a strip of railroad right of way.\\\"\\nThe protestant urges that since the village of Kake itself is situated upon a portion of what is known as the patented townsite of Kake and that all the land thereof is non-alienable and, if taxable, could not be seized and sold for nonpayment of taxes, and that since the Indian residents of Kake could not be compelled to pay any taxes .for the use of the school .district except taxes on their personal belongings and possibly upon their houses, protestant's property will be the chief and practically only property on which taxes to raise revenues could be levied.\\nBut foreclosure of liens for taxes on real and personal property is not the only means provided for recovery of such taxes under our statute. Section 1324, C.L.A.1933 provides that such taxes, together with penalty and interest, may be collected after the same become due in a personal action brought in the name of the school district. And it nowhere appears that inhabitants of a proposed school district must own real property in order to qualify them to participate in the incorporation of such a school district.\\nIt is no objection to the validity of the inclusion of territory in a school district that such territory is not taxable, nor is it invalid that property be included merely to secure additional revenue for the district. 56 C.J. 205, St. Joseph, etc., R. Co. v. School District No. 2, Doniphan County, 114 Kan. 67, 217 P. 296.\\nProtestant argues that our statute, Sec. 1311, C.L.A.1933, does not authorize the incorporation of any area which is not included in a town, village or settlement; that while our law limits incorporated school districts to 40 square miles or 150 square miles in a proper case, all of the area included within its exterior boundaries must be either town, village or settlement; and that a wilderness, region or tract of land not actually occupied as a town, village or settlement should not be included in the incorporated school district.\\nBut the protestants protest shows that its cannery is situated within one mile of the village of Kake by road and that its dam-site, pipe-lines and water rights are on or adjacent to Gunnock Creek located about one-half mile from the village of Kake, and one Indian family with a child of school age lives between Gunnock Creek and its cannery.-\\nThe Court thinks that protestant's cannery and rights and land may reasonably be considered a part of the settlement of Kake. To confine the incorporation to the actual limits of the town of Kake seems unreasonable'for every town, village or settlement has need of areas not \\u00e1ctually occupied by houses, especially in Alaska where so much' that sustains life comes from the wilderness, the waters and the unsettled areas adjacent thereto. When one thinks of the settlement of Kake with its population of Indian families whose livelihood the Court notices judicially comes largely from the sea and the forest, it is not unreasonable to associate that settlement with a cannery which uses the product of the toil of the Indian inhabitants of Kake and which, indirectly at least, benefits by their education.\\nIt appears to the Court that the objections of protestant to the incorporation of the Kake school district are immaterial and irrelevant and do not state facts sufficient to constitute a valid protest.\\nThey cannot be said to successfully attack the material allegations of the petition which the Court is constrained to hold and does so hold fully complies with the law.\\nThe motion to strike will be granted and the demurrer sustained.\"}"
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+"{\"id\": \"8912847\", \"name\": \"Franklin DAYTON Jr., Appellant, v. STATE of Alaska, Appellee\", \"name_abbreviation\": \"Dayton v. State\", \"decision_date\": \"2005-09-16\", \"docket_number\": \"No. A-8791\", \"first_page\": \"1073\", \"last_page\": \"1085\", \"citations\": \"120 P.3d 1073\", \"volume\": \"120\", \"reporter\": \"Pacific Reporter 3d\", \"court\": \"Alaska Court of Appeals\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T17:43:29.302427+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.\", \"parties\": \"Franklin DAYTON Jr., Appellant, v. STATE of Alaska, Appellee.\", \"head_matter\": \"Franklin DAYTON Jr., Appellant, v. STATE of Alaska, Appellee.\\nNo. A-8791.\\nCourt of Appeals of Alaska.\\nSept. 16, 2005.\\nMarcia E. Holland, Assistant Public Defender, Fairbanks, and Barbara K. Brink, Public Defender, Anchorage, for the Appellant.\\nW.H. Hawley Jr., Assistant Attorney General, Office of Special Prosecutions and Ap peals, Anchorage, and Gregg D. Renkes, At-tornmney General, Juneau, for the Appellee.\\nBefore: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.\", \"word_count\": \"6876\", \"char_count\": \"43144\", \"text\": \"OPINION\\nMANNHEIMER, Judge.\\nThis case requires us to resolve the slight inconsistency between the \\\"Austin\\\" rule-the sentencing rule first established by this Court in Austin v. State, 627 P.2d 657, 657-58 (Alaska App.1981)-and the later legislative codification of that rule in former AS 12.55.125(k)(2).\\nAs we explain in more detail below, we promulgated the Austin rule under our common-law authority to create rules to implement and supplement the then-existing statutes governing the sentencing of first felony offenders convicted of class B and class C felonies-i.e., offenders who were not subject to presumptive sentencing. The purpose of the Austin rule was to make the sentencing of first felony offenders more consistent with the sentencing of second felony offenders (i.e., offenders who were subject to presumptive sentencing). And the purpose of AS 12.55.125(k)(2) was to codify the Austin rule. But the wording of the statute differs slightly from the final version of the Austin rule that we announced in Brezenoff v. State, 658 P.2d 1359, 1362 (Alaska App.1983).\\nFor the reasons explained here, we conclude that AS 12.55.125(k)(2) did indeed codify a slightly different sentencing rule from the one we announced in Brezenoff And because any common-law rule announced by this Court must yield to a contrary provision of a statute dealing with the same issue, we conclude that AS 12.55.125(k)(2) superseded our rule.\\nUnderlying facts\\nFranklin Dayton Jr. was originally indicted for first- and second-degree sexual assault, stemming from his act of sexual penetration with a woman who was intoxicated and who had fallen asleep in his home. Dayton successfully moved to have the first-degree sexual assault charge dismissed, but the superi- or court upheld the second-degree sexual assault charge. The parties then negotiated a plea bargain.\\nUnder the terms of this plea bargain, the State agreed to dismiss the sexual assault charge and replace it with a charge of third-degree assault (i.e, not a sexual assault). The parties agreed to open sentencing on this reduced charge, and the parties further agreed that the superior court's sentencing decision could be based on the contents of the pre-sentence report and the police reports in the case, without the need for either side to produce live testimony. As Dayton's attorney told the court,\\nDefense Attorney: And . part of the agreement is [that] we won't contest any information in the pre-sentence report that would require that the victim be present to testify.... None of the core information will [be] contested] from the police reports.\\nFollowing this announcement from the defense attorney, Superior Court Judge Randy M. Olsen addressed Dayton personally, asking him if he understood what he was giving up:\\nThe Court: not going to have a trial, and you're not going to have witnesses come in. And Ms. Holland, [your attorney,] is very experienced, [and she] would be able to cross-examine people and make people come in and testify . even if they didn't want to.... And you're giving up all of those trial rights in return for getting this resolution [of your case]. And you say you want to go straight to . the sentencing. Is that what you want to do?\\nDayton: Yes.\\nHowever, the parties then expressed some doubt as to whether the new charge of third-degree assault was a true lesser included offense of the original sexual assault charges. They concluded that, in order to resolve any doubt, the district attorney's office should draw up an information charging Dayton with third-degree assault, and then Dayton should be asked to formally waive indictment on this charge. For this reason, another court proceeding was scheduled for the following day.\\nThe next afternoon, Dayton waived indictment and pleaded no contest to the information charging him with third-degree assault. At that time, Dayton's attorney again affirmed that \\\"there's not going to be any denials of the information that's . in the police report.\\\" The defense attorney explained that there were \\\"two different versions [of events]\\\" presented in the reports-the victim's version, and Dayton's version. But the attorney told the court:\\nDefense Attorney: We agree that there's no need that the complaining witness would have to testify, either in person or telephonically, even [as] to . information [that is] disputed about the incident.\\nThree weeks before Dayton's sentencing, the State filed its required pre-sentencing pleading under Alaska Criminal Rule 32.1. In this pleading, the State noted that Dayton was not subject to presumptive sentencing because he was a first felony offender and because his offense, third-degree assault, was a class C felony. This meant that Dayton's sentencing was governed by former AS 12.55.125(k)(2).\\nAS 12.55.125(k)(2) was repealed earlier this year when the legislature revised Alaska's presumptive sentencing laws. See SLA 2005, ch. 2, \\u00a7 32 (effective March 23, 2005). However, at the time of Dayton's offense and at the time of his sentencing, this statute declared that, in the absence of one or more of the aggravating factors defined in AS 12.55.155(c), or extraordinary circumstances as defined in AS 12.55.165, a first felony offender convicted of a class C felony could not receive\\na term of unsuspended imprisonment that exceeds the presumptive term for a second felony offender convicted of the same crime....\\nIn Dayton's case, the relevant presumptive term was 2 years to serve.\\nThe State announced that it would rely on two aggravating factors to seek a sentence above the normal 2-year limit. These two aggravating factors were AS 12.55.155(c)(5) (that the victim was particularly vulnerable because she was incapacitated due to intoxication), and AS 12.55.155(c)(10) (that Dayton's conduct was among the most serious within the definition of the offense because he had, in fact, sexually assaulted the victim).\\nThe State further announced that, to prove these two aggravators, it would rely on the information found on pages 2 through 5 of the pre-sentence report. These pages of the pre-sentence report contain (1) the victim's version of events, (2) the statement of a witness who reported that the victim came to her house in tears and said that Dayton had raped her, and (8) Dayton's various responses to this accusation.\\nThe following week, Dayton's attorney filed a response to the State's pleading. This response almost derailed the plea bargain. In her response, Dayton's attorney wrote:\\nMr. Dayton disputes the state's ability to rely upon [pages] 2-5 of the presentence report[,] as Mr. Dayton is lodging objections to the presentence report.... Mr. Dayton will re-enter [a] testimonial denial of the [State's] claim that [his] sexual encounter with [the victim] was nonconsensual. The state is therefore not entitled to rely on hearsay statements such as [are] found in the presentence report to meet its burden of proof regarding [the proposed] aggravating factors. [See] Ashenfelter v. State, 988 P.2d 120 (Alaska App.1999).\\nThat is, the defense attorney declared that Dayton was going to offer a testimonial denial of the information contained in the pre-sentence report-thus requiring the State to either call the victim to the stand or give up its attempt to prove the aggravators.\\nUnderstandably, the State responded by reminding Judge Olsen of the defense attorney's previous statements in open court on this subject. As we have already described, the defense attorney had declared (on two different occasions) that, as part of the plea bargain, Dayton \\\"would not] contest any information in the pre-sentence report that would require that the victim be present to testify\\\", and that \\\"there [would bel no need [for] the complaining witness . to testify, either in person or telephonically, even [as] to . information [that is] disputed about the incident\\\".\\nAt the ensuing court hearing, Dayton's attorney told Judge Olsen that she had interpreted the plea agreement to mean that Dayton would refrain from entering a testimonial denial, and would not require the State to call the victim to the stand, so long as the superior court refrained from making any findings about the facts of the offense:\\nDefense Attorney: [(Wihat the defense thought the plea agreement meant was that [the parties] would not ask . the court [to] make a determination about a particular version [of the events] being proved.... And if you listen to the actual [recording] of the change-of-plea hearing, . I was saying [that] so long as the pre-sentence report would include both [the victim's and the defendant's] versions, we don't see any reason to have a testimonial denial....\\n[When we said \\\"no testimonial denials\\\", we meant that we weren't denying that that's what [the victim] reported, that that's how she remembered the incident happening, and that [wel would not . [be] asking [to have] her version completely stricken from the report. [But I never agreed] that [the State] could rely on the pre-sentence report as evidence [to prove aggravating factors].\\nThe defense attorney's attempted explanation of her actions did not convinee the prosecutor. The prosecutor told Judge Olsen: \\\" 'No testimonial denials' means exactly that: . no testimonial denials of any disputed facts. That is what is in the agreement, and that is what is placed on the record.\\\" The prosecutor stated that if Dayton and his attorney held some different view of this matter, then there was no meeting of the minds: Dayton should file a motion to withdraw his plea, and the State would reinstate the preexisting charges.\\nJudge Olsen agreed with the prosecutor that, under Alaska case law, the term \\\"testimonial denial\\\" refers to an objection to the sentencing court's reliance on the matters asserted in a witness's out-of-court statement, not an objection to the fact that the witness made the statement. Judge Olsen further ruled that, in the absence of a testimonial denial from Dayton, the State would be entitled to rely on the contents of the pre-sentence report to prove the two proposed aggravating factors-that is, to prove that Dayton had sexually assaulted the victim, and to prove that the victim's intoxication made her particularly vulnerable. Thus, Judge Olsen declared, the choice facing Dayton was to proceed with the sentencing under those rules, or to withdraw his plea. Judge Olsen gave the parties one week to discuss this matter.\\nWhen the parties returned to court the following week, the prosecutor told Judge Olsen that the parties had agreed that the pre-sentence report would incorporate both the victim's version of events and the defendant's version of events: Further, the parties had agreed that\\nProsecutor: . both sides would respectively argue whatever findings the court [shJould make with respect to aggra-vators or mitigators, and what weight to give [those aggravators and mitigators], based upon [the] information that is [contained] in the pre-sentence report [and] in the police report that the court would have to review. And there would be no need to have testimony from [the victim], [or] to put [in] any additional testimony ., and there would be no other further objections.\\nThe Court Okay. Ms. Holland?\\nDefense Attorney: Right, that covers it.... I had some objections just to the format of the pre-sentence report and other things, but nothing as to the substance, the information in it. So that does cover [it].\\nTwo days later, the parties returned to court for Dayton's sentencing. The prosecu tor and the defense attorney argued their differing interpretations of the information contained in the pre-sentence report. The defense attorney acknowledged that the State's position on the two aggravating factors was perhaps consistent with the victim's description of events. However, the defense attorney argued that it was impossible to conclude, from the conflicting versions of events contained in the pre-sentence report, that the truth of the victim's account was established by clear and convincing evidence.\\n(At the time of Dayton's sentencing, the standard of proof for aggravating and mitigating factors was \\\"clear and convincing evidence\\\". See former AS 12.55.155(f) (2004).)\\nAt the conclusion of these arguments, Judge Olsen stated that he \\\"had] no doubt that Mr. Dayton engaged in sexual penetration with [the] victim while she was incapacitated.\\\" The judge explained that his conclusion was based on several factors:\\nThe Court One [factor] is [Dayton's] varied stories about what happened. [My conclusion is] also based upon his victim's reaction after [becoming] conscious of the assault.... [She ran out of the house] and [ran] to friends, and [was] very emotionally upset. And all of that just validates [my conclusion that] there was no consent.... There wasn't any dating relationship [between these two people]. There wasn't any signal of [a sexual) come-on.... What happened was just a horrible crime to an incapacitated woman.\\nI really am convinced that the aggrava-tors have been established by clear and convincing evidence....\\nJudge Olsen then sentenced Dayton to 4 years' imprisonment with 2 years suspended (i.e., 2 years to serve).\\nDayton's claim under Blakely v. Washington, and how resolution of this Blakely claim hinges on the meaning of AS 12.55.125(k)(2)\\nIn Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 LEd.2d 403 (2004), the Supreme Court held that the Sixth Amendment to the United States Constitution guarantees criminal defendants a right of jury trial on all factual issues that are necessary to establish a sentencing judge's authority to impose the type of sentence that the defendant received. Thus, when a sentencing judge has no authority to exceed a specified sentencing ceiling unless particular aggravating factors are proved, the defendant has a right to demand a jury trial on those aggravating factors (with the exception of prior criminal convictions). Blakely, 542 U.S. at 302-303, 124 S.Ct. at 2537-38. If the defendant is denied this right, then the sentencing judge can not exceed the prescribed statutory ceiling. Id., 124 S.Ct. at 2538.\\nDayton's case presents an issue concerning the relationship between the right to jury trial recognized in Blakely and the sentencing of first felony offenders under former AS 12.55.125(k)(2). Part of the answer is found in our recent decision in State v. Gibbs, where we held that Blakely does not affect sentencing under AS 12.55.125(k)(2) if the defendant received less time to serve than the presumptive term specified for second felony offenders convicted of the same crime. 105 P.3d 145, 146 (Alaska App.2005).\\nIn Gibbs, we expressly rejected the argument that the Blakely right to jury trial was triggered whenever the defendant's total sentence (that is, the defendant's time to serve plus suspended time) exceeded the presumptive term for second felony offenders. Id., 105 P.3d at 147-48. We noted that, in 2001, in Cook v. State, we squarely held that AS 12.55.125(k)(2) only limits a sentencing judge's authority to impose time to serve; the statute does not limit the judge's authority to impose additional suspended time, so long as the \\\"time to serve\\\" limitation is honored. Gibbs, 105 P.3d at 148.\\nBut Gibbs does not wholly resolve Dayton's case, because Dayton's case raises a question concerning the proper interpretation of the \\\"time to serve\\\" limitation codified in AS 12.55.125(k)(2).\\nAlthough AS 12.55.125(k)(2) was intended to codify the Austin rule, we have previously recognized that there is a slight discrepancy between the wording of this statute and the final form of the Austin rule that this Court announced in Brezenoff v. State, 658 P.2d 1359 (Alaska App.1983).\\nAs explained in Brezenoff, the Austin rule requires proof of aggravating factors if a defendant's time to serve equals the presumptive term for a second felony offender and, in addition, the defendant receives suspended jail time:\\nWhere the total sentence received by a first offender exceeds the presumptive sentence for a second offender but the period of actual imprisonment is substantially less, . the total sentence meets the Austin requirement of a substantially more favorable sentence for the first offender. Where, however, the actual period of imprisonment equals or exceeds the presumptive term for a second offender, we will require aggravating factors or extraordinary cireumstances to justify additional [Jail] timel,] even if it is suspended.\\nBrezenoff, 658 P.2d at 1362 (citations omitted).\\nThus, when Dayton's attorney discussed the range of permissible sentences with Judge Olsen, she told the judge that, unless the State proved aggravating factors, the \\\"time to serve\\\" component of Dayton's sentence had to be at least one day less than the 2-year presumptive term prescribed for see-ond felony offenders.\\nBut AS 12.55.125(k)(2) is worded different ly from the rule stated in Brezenoff. Under the statute, aggravating factors are needed only if the defendant's time to serve \\\"exceeds the presumptive term for a second felony offender convicted of the same crime\\\". (Emphasis added)\\nThus, \\\"the Austin rule calls for a first offender to receive an unsuspended term of imprisonment more favorable than the presumptive term for second felony offenders, while the statute calls for a first felony offender to receive an unsuspended term no greater than the presumptive term for see-ond felony offenders\\\".\\nIn Pitka v. State, 19 P.3d 604 (Alaska App.2001), the State expressly argued that AS 12.55.125(k)(2) had superseded the Austin rule on this point. We found it unnecessary to decide this issue because, in Pitka, the State proved an aggravating factor. Id., 19 P.3d at 608.\\nBut now, Dayton's sentence of 4 years with 2 years suspended again squarely raises this issue, and our resolution of this point is crucial to our consideration of Dayton's Blakely claim. We therefore must decide whether the legislature, by enacting AS 12.55.125(k)(2), changed the rule governing the time-to-serve component of a first felony offender's sentence-whether, in the absence of aggravating factors, a first felony offender's time to serve must be more favorable than the presumptive term for a second felony offender (the Austin/Brezenoff formulation) or, instead, it must not exceed that presumptive term (the statutory formulation).\\nBy enacting AS 12.55.125(k)(2), the legislature superseded the Austin/Brezenoff rule\\nAs we acknowledged in Gibbs, the Austin rule is an example of our exercise of the common-law authority to declare the law in the absence of contrary legislation.\\n(Regarding this common-law authority, see our supreme court's decision in Evans ex rel. Kutch v. State, 56 P.3d 1046 (Alaska 2002), affirming that, \\\"in the absence of a statute directing a contrary rule, courts [are] empowered to interpret the common law . unless and until the Alaska legislature acts to modify [that law].\\\" See also Edwards v. State, 34 P.3d 962, 968 (Alaska App.2001): \\\"[(When] statutory [analysis] does not yield an answer to our inquiry, we must employ our common-law power to declare the law in the absence of a statutory directive. .\\\")\\nAs our supreme court has observed, \\\"a statute may form the basis for a common law rule which applies beyond the prescribed scope of the statute.\\\" This is the rationale of the Austin/Brezenoff rule.\\nUnder the version of presumptive sentencing enacted in 1980, in prosecutions for class B and class C felonies, the presumptive sentencing statutes only governed the sentencing of second and third felony offenders; the legislature did not expressly restrict the sentencing of first felony offenders. As we explained in Cook v. State, the purpose of our decision in Austin (and our subsequent decisions interpreting Austin ) was to implement the legislature's policy of reasonable sentence uniformity in the sentencing of those first felony offenders. The fundamental policy behind the Austin rule was \\\"protecting first offenders against harsher treatment than similarly situated second offenders\\\". In other words, all other things being equal, a first felony offender should receive a more favorable sentence than a second felony offender.\\nBut \\\"[wlhen the courts exercise their common-law authority, the guiding principle is that they should not exercise this authority in disregard of existing constitutional and statutory provisions.\\\" This means that when a court adopts a common-law rule and then the legislature enacts a statute to govern the same matter, the statute controls.\\nWe - therefore - conclude - that - AS 12.55.125(k)(2) supersedes the Austin/Brezenoff rule.\\nAnticipating our conclusion, Dayton suggests that we should interpret the statute to mean the same thing as the Austin/Brezenoff rule. That is, even though AS 12.55.125(k)(2) says that aggravating factors are needed only if a defendant's time to serve \\\"exceeds\\\" the presumptive term for a second felony offender convicted of the same crime, Dayton asks us to interpret this statute as if it said \\\"equals or exceeds\\\".\\nBut the issue here is not what we would like the statute to say, or what we think it ought to say. Rather, the question is what the legislature intended. Other than arguing that this Court's formulation of the rule is better, Dayton offers nothing from the legislative history of AS 12.55.125(k)(2) to support his suggestion that the legislature misspoke when it said \\\"exceeds\\\", and that the legislature really meant to say \\\"equals or exceeds\\\".\\nWe note that the legislature used a similar formulation when it amended AS 12.55.120(a) and (d) in 1995, limiting the right of sentence appeal to those felony offenders who receive a composite sentence \\\"exceeding two years of unsuspended incarceration\\\", and to those misdemeanor offenders who receive a composite sentence \\\"exceeding 120 days\\\".\\nWe further note that the legislature might reasonably - have concluded that AS 12.55.125(k)(2) would present fewer administrative problems for the Department of Corrections if the statute said \\\"exceeds\\\" rather than \\\"equals or exceeds\\\"-so that sentencing judges would not impose sentences of \\\"1 year and 11 months\\\" or even \\\"1 year and 364 days\\\" to stay within the statutory limit.\\nIt is true that Alaska does not adhere to the \\\"plain meaning\\\" rule of statutory construction. Nevertheless, the wording of AS 12.55.125(k)(2) is clear-and this means that Dayton must present a very convincing argument before we declare that the statute should be interpreted at variance with that wording. Dayton has failed to meet this burden.\\nAccordingly, we declare that - AS 12.55.125(k)(2) means what it says: when a judge is sentencing a first felony offender for a class B or a class C felony, the defendant's time to serve (i.e., the unsuspended portion of the defendant's term of imprisonment) can equal, but can not exceed, the presumptive term that would apply to a second felony offender convicted of the same crime.\\nDayton's argument that AS 12.55.125(k)(2) was unconstitutional if interpreted in this way\\nDayton - argues that if - AS 12.55.125(k)(2) is interpreted as we have just interpreted it, then the statute was unconstitutional.\\nDayton notes that, under the pre-2005 presumptive sentencing statutes, a judge could not sentence a second felony offender to more than the applicable presumptive term-even if the additional jail time was suspended-unless aggravating factors were proved. Dayton contends that, all other things being equal, it is \\\"anomalous\\\" for AS 12.55.125()(2) to authorize a judge to sentence a first felony offender to the same amount of unsuspended jail time that a similarly situated second felony offender could receive, plus additional suspended jail time (something that the judge could not do when sentencing the similarly situated second felony offender). Dayton asserts that this distinction is so unfair and so unreasonable that it deprives first felony offenders of due process of law.\\nBut this purported unfairness has been a fixture of Alaska law since 1982, when this Court decided Tazruk v. State, 655 P.2d 788 (Alaska App.1982).\\nThe defendant in Tazruk was a first felony offender convicted of a class B felony. He received a sentence of 8 years' imprisonment with 5 years suspended (i.e., 3 years to serve). On appeal, Tazruk invoked the Austin rule that, in a non-aggravated case, a first felony offender should receive a more favorable sentence than the presumptive term that would apply to a second felony offender. In Tazruk's case, that applicable presumptive term was 4 years. Tazruk therefore argued that his 8-year sentence was illegal under Austin.\\nWe affirmed Tazruk's sentence because we rejected his proposed interpretation of the Austin rule:\\nWe conclude that a sentence of eight years with five suspended is not greater than the presumptive sentence of four years for purposes of applying the Austin rule. When we evaluate a sentencel,] we consider the whole sentence including suspended time. However, in evaluating whether a sentence is in excess of the presumptive sentence which a second felony offender would receive, our primary focus should be on [the unsuspended] portion of the sentence.... By that standard, the three years of imprisonment to which Tazruk is sentenced is less than the four years which a second felony offender would receive. In the event that the suspended portion of Tazruk's sentence is later imposed, he would be entitled to bring a sentence appeal at that time. [But wel conclude that Tazruk's sentence does not violate the Austin rule.\\nTazruk, 655 P.2d at 789.\\nTo a large extent, Dayton's current argument concerning the purported unfairness of AS 12.55.125(k)(2) is a reprise of the attack on Tagruk that was presented to us in Cook v. State, 36 P.3d 710 (Alaska App.2001). We rejected that argument in Cook, and we do so again here. Even under the Austin rule, suspended jail time was not the equivalent of unsuspended jail time. As our decision in Tazruk illustrates, the Austin rule allowed a judge to sentence a first felony offender to a term of imprisonment that, in total, exceeded the presumptive term for a second felony offender, so long as the unsuspended portion of the sentence was less than the applicable presumptive term.\\nIt is true that, in non-aggravated cases, the Austin rule (as interpreted in Tazruk and in Brezenoff) allowed a sentencing judge to give a first felony offender almost the same amount of time to serve as a second felony offender, and then add suspended jail time. But as we noted in Tazruk, if the defendant's probation was later revoked and the previously suspended jail time was imposed, the defendant would again be able to appeal the sentence-and, in such cireumstances, if the defendant's new total of unsuspended incarceration exceeded the applicable presumptive term, the sentence would have to be supported by aggravating factors or extraordinary circumstances.\\nMoreover, as the State points out, a first felony offender's sentence of imprisonment was a non-presumptive sentence of imprisonment. That is, even though a first felony offender convicted of a class B or class C felony might receive unsuspended jail time equal to (or almost equal to) the presumptive term for a second felony offender, the first felony offender would be eligible for discretionary parole after serving one-fourth of the sentence, while a second felony offender would be ineligible for discretionary parole.\\nFor these reasons, we re-affirm the interpretation of the Austin rule that we announced twenty years ago in Tasruk, and that we recently upheld in Cook: the Austin rule focused on a defendant's unsuspended term of imprisonment, not on additional jail time that might be suspended.\\nAs we explained above, the Austin rule called for an unsuspended term of imprisonment that was more favorable than the applicable presumptive term for second felony offenders. But as Dayton's attorney told Judge Olsen during a discussion of sentencing matters, even in the absence of aggravating factors, the Austin rule would have authorized Judge Olsen to sentence Dayton to an unsuspended term of 2 years minus 1 day. That is, AS 12.55.125(k)(2) increased the authorized amount of unsuspended incarceration by a single day; it allowed Judge Olsen to impose an unsuspended term of 2 years.\\nThus, if AS 12.55.125(k)(2) is so unfair as to violate the guarantee of due process of law, that unfairness must le in this one additional day of unsuspended jail time.\\nDayton argues that this single day is indeed constitutionally significant-because, by superseding - the - Austin - rule, - AS 12.55.125(k)(2) allowed a sentencing judge to give a first felony offender an unsuspended term of imprisonment that was not just close to, but rather equal to, the presumptive term for a second felony offender, plus an additional amount of suspended jail time. Dayton argues that this was fundamentally unfair because a judge could not give the same sentence to a second felony offender (the presumptive term to serve, plus additional suspended jail time) unless one or more aggravating factors were proved.\\nAccording to Dayton, this extra day is the straw that broke the statute's back. No longer could the State argue that, notwithstanding the additional jail time, a first offender's time to serve was minimally less than the applicable presumptive term for see-ond felony offenders. Rather, in cases where no aggravating factors were proved, AS 12.55.125(k)(2) allowed sentencing judges to give first felony offenders a more severe sentence than similarly situated second felony offenders-i.e., exactly the same amount of time to serve, plus additional suspended time-without any apparent justification for this difference in treatment.\\nBut as we pointed out earlier, the sentence of imprisonment that a first felony offender received under AS 12.55.125(k)(2) was not the same as the sentence of imprisonment that a second felony offender received under the applicable presumptive sentencing statutes (former AS 12.55.125(d) or (e), depending on whether the offense was a class B or class C felony). First felony offenders received a non-presumptive term; they were eligible for discretionary parole after serving one-fourth of their sentence. Second felony offenders received a presumptive term; they were not eligible for discretionary parole.\\nThus, even though a first felony offender convicted of a class B or class C felony might receive the same amount of time to serve as a similarly situated second felony offender, the first felony offender's sentence was in fact less severe. For this reason, we conclude that AS 12.55.125(k)(2) did not violate the due process rights of first felony offenders.\\nOur conclusion with respect to AS 12.55.125(k)(2) - and Dayton's - Blakely claim\\nAs we have explained here, AS 12.55.125(k)(2) superseded the common-law sentencing rule announced in Austin, Tazruk, and Brezenoff. Moreover, we have rejected Dayton's constitutional challenge to this statute. This means that, even without proof of any aggravating factors, Judge OIl-sen was authorized to impose the sentence that Dayton received in this case: 4 years' imprisonment with 2 years suspended.\\nDayton's Blakely argument is therefore moot.\\nIssues that may potentially arise in future proceedings in Dayton's case\\nEven though Dayton's sentence is lawful under AS 12.55.125(k)(2), the fact that he received a term of suspended imprisonment means that, potentially, Blakely issues will arise in his case in the future-that is, if Dayton violates his probation and the superi- or court decides to revoke some or all of the suspended imprisonment.\\nWe need not decide now whether, or how, Blakely would apply to those potential probation revocation proceedings. We do, however, wish to address two related matters.\\nAs explained above, Dayton's sentencing judge, Judge Olsen, found that the State had proved two aggravating factors by clear and convincing evidence. Dayton argues that, under Blakely, he was entitled to have a jury decide whether the State had proved these aggravating factors, and he was also entitled to demand that the aggravating factors be proved beyond a reasonable doubt.\\nThis is a correct reading of Blakely. However, Dayton's conviction stems from a plea bargain in which he expressly agreed that the aggravators would be litigated in this manner. It could be argued that Dayton must renounce his plea bargain if, in the future, he wishes to raise a Blakely attack on the aggravators and on any enhanced sentence imposed for violation of probation. We express no opinion on this issue at this time.\\nDayton also argues that, aside from any Blakely issue, it was improper as a matter of law for Judge Olsen to find the two aggravating factors based solely on the content of the pre-sentence report and the police reports. Dayton points out that the pre-sentence report contains at least two different versions of events, and he argues that certain portions of the pre-sentence report cast doubt on the veracity of the vie-tim's account. Dayton contends that, under these cireumstances, the law should prohibit a sentencing judge from finding any disputed aggravator to be proved unless the State presents live testimony to support the ag-gravator.\\nThis argument is a repudiation of the position that this same attorney expressly endorsed in the superior court. As we explained above, Dayton's plea agreement with the State almost unraveled when Dayton's attorney insisted that the State was obliged to present live testimony from the victim, and could not rely solely on the pre-sentence report, if the State wished to prove aggravating factors at Dayton's sentencing. The plea bargain went forward again only after Dayton's attorney expressly agreed (in open court) that Judge Olsen could decide the disputed aggravating factors based on the content of the pre-sentence report and the police reports, without requiring live testimony from the victim (or anyone else).\\nDayton's point was not preserved in the superior court, and any error was invited. Because of this, Dayton is estopped from pursuing this claim.\\nDayton's challenges to three of his conditions of probation\\nOne of Dayton's conditions of probation, General Condition No. 11, requires him to \\\"[albide by any special instructions given [to him]} by . probation officers\\\". Dayton argues that this condition of probation constitutes an improper delegation of authority to the Department of Corrections because, theoretically, a probation officer's instruction might violate Dayton's constitutional rights, or because the instruction might place such a substantial burden on Dayton as to amount to a new condition of probation, outside the ones imposed by the sentencing court.\\nDayton contends that we should amend the condition of probation so that it reads: \\\"abide by any special instructions given by . probation officers . that are necessary to the implementation of the conditions of probation established by the court, that are not inconsistent with any other condition of probation, that are consistent with the purpose[s] of probation, and that do not violate any statutory or constitutional right of the probationer.\\\"\\nBut, with the caveat that a probation officer's instruction need be \\\"necessary\\\" only in the broader sense of that word (i.e., appropriate and well adapted to fulfilling the objectives of probation), the limitations that Dayton proposes are already implicitly present. Dayton has the right to seek court review of any special instruction from a probation officer that he believes abridges his rights or exceeds the authority of the Department of Corrections. His objection to this condition of probation is therefore moot.\\nAnother of Dayton's conditions of probation, Special Condition No. 6, requires him to \\\"(inform [his] probation officer of any medications being taken and [to] provide proof of valid prescriptions for [these medications].\\\" Dayton argues that the record contains no evidence that he abuses prescription drugs. Moreover, Dayton argues that\\nthis condition of probation is worded so broadly that it requires him to inform his probation officer every time he takes aspirin or any other non-prescription medication.\\nBased on the fact that Judge Olsen required Dayton to \\\"provide proof of valid pre-seriptions\\\" for the medications he was taking, it appears to us that Judge Olsen did not intend to require Dayton to report nonprescription medications. Rather, the judge intended to impose a narrower reporting requirement, confined to prescription medications.\\nThe question, then, is whether the record supports Judge Olsen's decision to require Dayton to report his use of any prescription medication. When Judge Olsen imposed this requirement, he told Dayton that it was \\\"just to help [the probation officers] keep track of [your progress]; the probation officers are responsible for your continued progress, and . any substance abuse, they should have access to that.\\\"\\nBut a person's use of prescription medications does not typically indicate substance abuse. We agree with Dayton that, in the absence of any reason to believe that he had abused or might abuse prescription drugs, there was an insufficient basis for this condition of his probation.\\nFinally, Dayton challenges Special Condition No. 9, which requires him to submit to warrantless searches \\\"for prohibited weapons and alcohol\\\". Dayton concedes that the record establishes his problem with alcohol, but he contests the portion of this condition that subjects him to searches for \\\"prohibited weapons\\\". He claims that Judge Olsen erred in authorizing this type of search because Dayton's underlying offense involved no weapon.\\nIn Sprague v. State, 590 P.2d 410 (Alaska 1979), the Alaska Supreme Court invalidated a similar condition of probation that required the defendant to submit to warrantless searches for drugs. The defendant in Sprague was being sentenced for burglary; he had not been accused of any drug of fenses, nor had the State shown that he was addicted to drugs or that his involvement in the burglary was precipitated by a need for money to purchase illegal drugs. Rather, the sentencing judge imposed this condition \\\"to forestall Sprague's future involvement with the kind of individuals who would be likely to burglarize other people's homes.\\\" The supreme court concluded that, given \\\"so weak a connection between the crime committed and the [challenged] condition of probation\\\", Sprague could not be subjected to warrantless searches for drugs as a condition of his probation:\\nIf we were to uphold the probation condition in this case, in effect, we would be opening up virtually all classes of offenders to warrantless searches on less than probable cause.\\nSprague, 590 P.2d at 418.\\nDayton's case is similar. The record contains no indication that Dayton has ever used or possessed weapons in violation of the law, or that he has used or carried weapons during the commission of a crime. It is true that, because Dayton is now a convicted felon, Alaska law bars him from possessing any concealable firearm, and federal law forbids him from possessing any firearm at all. But the question is whether Dayton's person, residence, and vehicles should be subjected to warrantless searches for weapons on less than probable cause. The record contains no justification for this condition of probation.\\nConclusion\\nUnder former AS 12.55.125(k)(2), Judge Olsen was authorized to sentence Dayton to 4 years' imprisonment with 2 years suspended even in the absence of any aggravating factors. Dayton's Blakely attack on the sentencing procedures in his case is therefore moot. Accordingly, we AFFIRM Dayton's sentence of 4 years with 2 years suspended.\\nWith regard to the three challenged conditions of Dayton's probation, we AFFIRM General Condition 11, but we VACATE Special Condition 6 and the \\\"weapons\\\" clause of Special Condition 9.\\n. See former AS 12.55.125(e)(1) (before the 2005 amendment).\\n. See Evans v. State, 23 P.3d 650, 652 (Alaska App.2001); Hamilton v. State, 771 P.2d 1358, 1362-63 (Alaska App.1989) (a sentencing judge can rely on out-of-court statements described in the pre-sentence report for proof of the matters asserted unless the defendant offers a testimonial denial of those statements and submits to cross-examination, in which case the State must support its assertions with live testimony).\\n. 36 P.3d 710, 730 (Alaska App.2001).\\n. Beasley v. State, 56 P.3d 1082, 1087 (Alaska App.2002) (Mannheimer, J., concurring) (emphasis in the original).\\n. Gibbs, 105 P.3d at 148.\\n. Evans, 56 P.3d at 1056 n. 60, quoting Bauman v. Day, 892 P.2d 817, 828 (Alaska 1995), and Surina v. Buckalew, 629 P.2d 969, 973 (Alaska 1981).\\n. John v. Baker, 982 P.2d 738, 793-94 (Alaska 1999), quoting Hanebuth v. Bell Helicopter Internat'l, 694 P.2d 143, 146 (Alaska 1984).\\n. Cook, 36 P.3d at 730.\\n. Espinoza v. State, 901 P.2d 450, 453 (Alaska App.1995). Accord, Andrew v. State, 835 P.2d 1251, 1253 (Alaska App.1992).\\n. Hosier v. State, 957 P.2d 1360, 1364-65 (Alaska App.1998).\\n. Dandova v. State, 72 P.3d 325, 333 (Alaska App.2003).\\n. See Brant v. State, 992 P.2d 590, 592-93 (Alaska App.1999) (Mannheimer, J., concurring).\\n. See 1995 SLA, ch. 79, \\u00a7 7-8.\\n. Eppenger v. State, 966 P.2d 995, 996 (Alaska App.1998).\\n. See, e.g., Eppenger v. State, 966 P.2d at 996; Tallent v. State, 951 P.2d 857, 860 (Alaska App.1997).\\n. See Haag v. State, 117 P.3d 775, 783 (Alaska App.2005).\\n. Tazruk, 655 P.2d at 789.\\n. Cook, 36 P.3d at 730.\\n. Tazruk, 655 P.2d at 789. See also Chrisman v. State, 789 P.2d 370, 371 (Alaska App.1990).\\n. See former AS 12.55.025(g)(3) (pre-2005) (presumptive terms of imprisonment could not be reduced); AS 33.16.090(b) (pre-2005) (prisoners who received a presumptive term were not eligible for discretionary parole during that pre-sumplive term, although they could apply for parole after serving a portion of any extra years of imprisonment that were added to the presumptive term because of aggravating factors); and AS 33.16.100(c) (pre-2005) (prisoners serving a non-presumptive term for a class B or class C felony were eligible for discretionary parole after serving one-fourth of their sentence).\\nSee also 22 AAC 20.040(4) and 20.035(4) (restating the rule that prisoners serving a non-presumptive term for a class B or class C felony are eligible for discretionary parole after serving one-fourth of their sentence).\\n. See the definition of the phrase \\\"necessary and proper contained in Black's Law Dictionary (7th ed.1999), p. 1052.\\n. Sprague, 590 P.2d at 417-18.\\n. Id. at 418.\"}"
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+"{\"id\": \"8987543\", \"name\": \"Michael P. McMULLEN, Appellant, v. Guy BELL, Administrator of the Public Employees' Retirement System, Appellee\", \"name_abbreviation\": \"McMullen v. Bell\", \"decision_date\": \"2006-01-27\", \"docket_number\": \"No. S-11567\", \"first_page\": \"186\", \"last_page\": \"193\", \"citations\": \"128 P.3d 186\", \"volume\": \"128\", \"reporter\": \"Pacific Reporter 3d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T19:31:47.331899+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before: BRYNER, Chief Justice, MATTHEWS, EASTAUGH, and CARPENETI, Justices.\", \"parties\": \"Michael P. McMULLEN, Appellant, v. Guy BELL, Administrator of the Public Employees' Retirement System, Appellee.\", \"head_matter\": \"Michael P. McMULLEN, Appellant, v. Guy BELL, Administrator of the Public Employees' Retirement System, Appellee.\\nNo. S-11567.\\nSupreme Court of Alaska.\\nJan. 27, 2006.\\nBradley D. Owens and Blair Marlowe Christensen, Jermain, Dunnagan and Owens, P.C., Anchorage, for Appellant.\\nKeith B. Levy and Virginia B. Ragle, Assistant Attorneys General, and Gregg D. Renkes, Attorney General, Juneau, for Ap-pellee.\\nBefore: BRYNER, Chief Justice, MATTHEWS, EASTAUGH, and CARPENETI, Justices.\", \"word_count\": \"3762\", \"char_count\": \"24131\", \"text\": \"OPINION\\nBRYNER, Chief Justice.\\nI. INTRODUCTION\\nThe Public Employees' Retirement System calculates an employee's retirement benefits based on the employee's average monthly compensation during his three best paid years. When, after thirty years working for the state, Michael McMullen retired, he sought to include substantial cashed-in leave as part of his compensation for purposes of calculating his retirement benefits. The Public Employees' Retirement Board denied McMullen's request. McMullen appeals, arguing that because the definition of \\\"compensation\\\" that was effective when he was hired did not exclude cashed-in leave, article XII, section 7 of the Alaska Constitution protects his right to include that leave when calculating his retirement benefits. - Because McMullen was not eligible to cash in leave on July 1, 1977, when the legislature amended the definition of compensation to exclude cashed-in leave, we hold that he has no constitutionally protected vested right to include cashed-in leave as part of his compensation.\\nII. FACTS AND PROCEEDINGS\\nMichael MeMullen was hired by the Alaska Division of Personnel in September of 1969 and retired from state service in 1999. When he retired, he became entitled to retirement benefits under the Public Employees' Retirement System (the system). Under AS 39.35.370(c) & (d) and AS 39.35.680(4)(A), an employee who was hired before 1996 receives a percentage of his average monthly compensation for the three payroll years that yield the highest average, multiplied by his number of years of service. As a result, the higher the compensation for those three years, the greater the retirement benefits that an employee will receive. McMullen's last three years of employment with the state were those for which he received the highest average monthly compensation.\\nDuring his last three years of employment with the state, McMullen cashed in substantial amounts of acerued leave. Before he retired, McMullen asked the Division of Retirement and Benefits (the division) to include the value of his cashed-in leave when it calculated his average monthly compensation for purposes of determining his retirement benefits.\\nThe division informed him that it did not include leave cash-ins \\\"as compensation for retirement calculation purposes for PERS members.\\\" In response, McMullen indicated that he believed that under this court's ruling in Flisock v. State, Division of Retirement and Benefits, the division was required to include the cashed-in leave when calculating compensation. In Flisock, this court ruled that some members of the Teachers' Retirement System had a right under article XII, section 7 to include the value of their cash-ins in their base pay.\\nThe administrator of the system, Guy Bell, informed McMullen that, on the advice of the attorney general, the position of the division was that Flisock applied to members of the Teachers' Retirement System only and not to members of the Public Employees' Retirement System. Bell therefore denied McMul-len's request.\\nMcMullen appealed the administrator's decision to the Public Employees' Retirement Board. He argued that because cashed-in leave was not excluded from the definition of compensation when he was hired in 1969, he, like Peter Flisock, had a constitutionally protected right to include his cash-ins as part of his compensation. The board agreed and reversed the administrator's decision, ruling that Flisock required the division to include McMullen's cashed-in leave when calculating his retirement benefits.\\nThe administrator appealed the board's decision to the superior court. The court observed that there were differences between the PERS and TRS statutes, that the actual practices of the systems were different, and that Flisock's expectations may well have been different from McMullen's expectations. It therefore remanded the case to the board for fact-finding on four questions:\\n(1) What exposure does [the system] have as a result of this decision?\\n(2) What was the practice of \\\"cash-in\\\" with respect to Mr. McMullen's category of employees prior to 1977?\\n(3) Did Mr. McMullen have a reasonable expectation of being able to \\\"cash-in\\\" leave prior to the 1977 amendment?\\n(4) Did the Legislature act immediately to exclude \\\"cash-in\\\" payments from compensation after reasonably learning of it?\\nThe superior court specified that the board was \\\"authorized to issue a new decision incorporating its new findings of fact on the four issues directed by the court.\\\"\\nAfter holding a hearing, the board issued findings addressing the court's questions. In response to the first question, the board found that under a worst case scenario, a ruling in MeMullen's favor would cost the system thirty-six million dollars. The board found that, amortized over twenty-five years this might require an increase of .25% to the employers' contribution rates. The board found that the state of Alaska would, under the worst case scenario, need to pay an additional $1.28 million per year into the system's account.\\nAs for the second question, the board observed that two collective bargaining units negotiated agreements that entitled them to cash in leave beginning in 1976. The board observed that shortly thereafter, \\\"(a)] legislative enactment . amended the PERS definition of 'compensation' to specifically exclude cashed-in-leave\\\" for purposes of calculating retirement benefits The board found that McMullen was not a member of the collective bargaining units that negotiated the cash-in agreements and that there fore McMullen was not eligible to cash in leave before the legislature enacted the amendments excluding cash-ins from the definition of compensation.\\nIn response to the third question, the board found that before 1977 McMullen had believed that it was possible that at some point he, too, might become eligible to cash in leave. But the board found that it was not until years later, when McMullen learned of the Flisock decision, that McMullen \\\"linked the opportunity to obtain leave cash-in rights with inclusion into PERS compensation figures.\\\" The board therefore found that \\\"McMullen had no expectations prior to July 1, 1977 of being able to include cashed-in-leave as a part of PERS compensation.\\\"\\nFinally, the board found that the legislature excluded cashed-in leave from the definition of compensation at the first legislative session following the collective bargaining agreements that authorized cash-ins.\\nAlthough all four participating members of the board agreed on the factual findings, they disagreed about their legal consequences. Two members of the board concluded that the definition of compensation that was in effect in 1969 when MeMullen was hired could not \\\"be interpreted so broadly as to encompass hypothetical conclusions never contemplated by an employee (or employer)\\\" They relied on the board's findings that McMullen had no expectation of being able to include cash-ins as part of his compensation for retirement purposes and that before the legislature's 1977 amendment McMullen would not have been eligible to cash in his accrued leave, much less to include it as part of his compensation when calculating his retirement benefits. They therefore concluded that McMullen had no right to include the leave he cashed in as part of his compensation.\\nThe remaining two members reluctantly disagreed. These members believed that Flisock \\\"compel[led] the Board to afford Mr. McMullen the opportunity to claim cashed-in-leave . as PERS compensation.\\\"\\nAfter noting that the board was split, the board stated that under AS 89.35.047(c), the effect of a split decision was to affirm the decision of the administrator. As a result, the board ruled that its tie vote affirmed the administrator's decision to refuse to allow McMullen to include his cashed-in leave when calculating his compensation.\\nMcMullen appealed to the superior court. The court affirmed the board's decision. The court reasoned that the relevant issue was whether \\\"leave cashins were allowed for McMullen prior to the 1977 amendment.\\\" The court ruled that the board's finding that McMullen had no right to cash in leave before the 1977 amendment was sufficiently supported by the evidence. The court also concluded that the record supported the board's finding that although McMullen believed that he might in the future be eligible to cash-in leave, \\\"he never linked the opportunity to obtain leave cash-in rights with the inclusion into PERS compensation figures.\\\" The court held that these findings were sufficient to support the board's ruling that the administrator had no obligation to include McMullen's cashed-in leave as part of his compensation.\\nMcMullen appeals. He argues that because the superior court never vacated the board's first decision, the board's second decision affirms its first decision (ruling in MceMullen's favor) rather than the administrator's decision (ruling against MeMullen). Second, he argues that he \\\"has a constitutionally vested right in the application of the statute in place at the time he first enrolled in PERS.\\\" Finally, he claims that principles of statutory interpretation require that his accrued unused leave be included in the calculation of his retirement benefits.\\nIII. DISCUSSION\\nA. - Standard of Review\\nThis appeal involves review of a superior court's affirmance of an agency decision. \\\"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.\\\"\\nMcMullen appeals the agency's interpretation of article XII, section 7 of the Alaska Constitution and of the statutes governing retirement benefits. This court applies its independent judgment when reviewing constitutional questions. Where, as here, a statutory question does not involve agency expertise, we review the agency's ruling under the independent judgment standard. In exercising our independent judgment, we must adopt the rule of law that is most persuasive in light of precedent, reason, and policy.\\nMeMullen's appeal also requires us to review the board's resolution of the underlying facts. We review an agency's factual determinations to ensure that they are supported by substantial evidence.\\\" Substantial evidence\\\" is \\\"such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.\\\"\\nB. The Board's Tie Vote\\nMeMullen's first argument is that the board incorrectly concluded that its tie vote affirmed the administrator's original decision. He argues that the effect of the board's tie vote is not to affirm the administrator's original decision against him, but rather to affirm the board's first decision-reviewing the administrator's decision-which reversed the administrator and ruled in MeMullen's favor.\\nMcMullen did not raise this point before the board, argue it before the superior court, or list it in his points on appeal. The administrator argues that McMullen has therefore waived this argument.\\n- Ordinarily \\\"this court will not consider an issue raised for the first time on appeal.\\\" The only exception is where the issue is \\\"1) not dependent on any new or controverted facts; 2) closely related to the appellant's trial court arguments; and 8) could have been gleaned from the pleadings.\\nAlthough McMullen's argument is not dependent on any new or controverted facts, it is not closely related to the trial court arguments, and it could not have been gleaned from any of the earlier proceedings. As a result, it does not qualify for an exception to the waiver rule. We decline to consider this argument.\\nC. - McMullen's Right To Have His Benefits Calculated According to the Law in 1969\\nMcMullen argues that he has a right to have his benefits determined under the law and practices that were in effect when he was hired. We agree.\\nUnder article XII, section 7 of the Alaska Constitution, the state may not impair the benefits a state employee has acerued under the state's employee retirement systems. Our case law establishes that an employee's right to benefits vests upon employment or enrollment in the retirement system rather than upon retirement. An employee's vested benefits arise by statute, from the regulations implementing those statutes, and from the division's practices. Where the state has changed the benefits system after an employee's enrollment in the system, the employee may choose to accept the new system or may opt to keep the benefits in effect at enrollment.\\nMcMullen is therefore entitled, if he chooses, to have his benefits calculated according to the system that was in effect at the time of his enrollment. This system was governed by the statutes in effect at that time, the regulations that were then applicable, and the division's practices as of 1969.\\nD. McMullen's Vested Benefits at the Time of His Enrollment in the Retirement System\\nMcMullen maintains that the statutory regime in effect when he was enrolled entitles him to include his cashed-in leave when calculating his benefits. McMullen relies on our opinion in Flisock v. State, Division of Retirement and Benefits.\\nIn Flisock, we considered a school superintendent's claim that under the Teachers' Retirement System, his cashed-in leave should be included when calculating his retirement benefits notwithstanding the legislature's attempt to prohibit this practice. Flisock argued that the legislature's effort to remove cashed-in leave from the definition of base salary violated his rights under article XII, section 7 of the Alaska Constitution.\\nThe Teachers' Retirement Board had ruled that because Flisock did not accumulate the leave he cashed in until after the statutory change, the change did not impair any benefits he actually had at the amendment's effective date. We rejected the board's approach, noting that we had consistently held that an employee's retirement benefits were controlled by the system as it was when the employee enrolled in the system and not as it was upon his retirement. We therefore concluded that if Flisock had a right when he enrolled in the system to include cashed-in leave as part of his base salary, it was irrelevant whether he accrued the leave he ultimately cashed in before or after the statutory changes.\\nTo determine whether Flisock ever had such a right, we looked to the statute in effect at the time of his enrollment and to the agency's practices. We observed that under the TRS retirement statute, a member was entitled at retirement to \\\"a monthly benefit equal to 'two percent of the member's average base salary during any three school years of membership service times the years of credited service, including credited fractional years, divided by 12\\\" At the time of Flisock's enrollment, \\\"base salary\\\" was defined as\\nany remuneration acerued under a contract to a teacher for professional services rendered during any school year; for purposes of see. 50 of this chapter, base salary accrued includes any payments made after June 30 of a school year for services rendered before the end of the school year.\\nWe noted that the statute nowhere excluded payments for cashed-in leave.\\nWe next looked to the practice concerning cashed-in leave in 1969. We remarked that the state had \\\"offered no evidence that the division's practice in 1969 was to exclude payments for unused leave,\\\" and we observed that there was some evidence that in 1969 cashed-in leave was used when calculat ing base compensation. 'We therefore held that Flisock was entitled to use cashed-in leave when calculating his compensation.\\nMcMullen argues that under Flisock, he, too, is entitled to include his cashed-in leave when calculating his benefits. He reasons that, like the operative statute in Flisock, the relevant statute here did not exclude cash-ins from the definition of \\\"compensation\\\" in 1969.\\nMcMullen is correct that cashed-in leave was not excluded from the definition of compensation at the time of his enrollment in the retirement system. When McMullen began his employment with the state, compensation for purposes of the system was defined as:\\nthe total remuneration paid to an employee by the employers for personal services rendered during the period considered as credited service, including cost-of-living adjustments or differentials and including monetary value, as determined by the board, of subsistence and maintenance provided by the employers in partial payment for services, but excluding retirement and other welfare benefits financed by the employers.\\nBut the bare fact that the statute did not expressly exclude cashed-in leave from the definition of compensation is not enough to support McMullen's argument. As already noted above, our decision in Fiisock relied on two factors: (1) the division's failure to offer evidence that it excluded payments for unused leave; and (2) the presence of some evidence establishing that cashed-in leave had actually been, counted. Flsock thus stands for the proposition that, under the employer's originally established practices, the employee must actually have been entitled to the benefit that the state's subsequent action allegedly diminished. As a result, MceMullen must show not only that the original statute did not exclude cashed-in leave from the definition of compensation, but also that, like Flisock, under the law or policies that originally applied to him, he actually was entitled to cash in accrued leave.\\nThe board found that McMullen never actually had such a right. Our carefal review of the record reveals that substantial evidence supports the board's factual findings.\\nThe board found that in 1976 and 1977 two collective bargaining units negotiated agreements that included the right for their members to cash in leave. The board found that McMullen was not in the category of employees who were entitled to cash in leave under these collective bargaining agreements. The record supports these findings. The record shows that in 1969, state employees were not permitted to cash in accrued leave while they were still employed. Documents in the record reveal that the Supervisory Unit employees and the General Government Unit employees later negotiated the right to cash in accrued leave and that these rights became effective in 1976 and 1977. MeMullen acknowledged that he was not a member of either of these units.\\nMcMullen maintained at the board hearing that the Department of Administration allowed some employees to cash in leave even if they were not covered by the collective bargaining agreements. But though MeMul-len argues to the contrary in his brief, he conceded at the board hearing that he was not among those employees.\\nThe board also found that in 1977 the legislature amended the definition of compensation to exclude cashed-in leave. Between the time when the collective bargaining agreements became effective and the legislature amended the definition of compensation, the Department of Administration's director of retirement and director of finance disagreed about whether the leave cash-ins counted as compensation. The attorney general's office issued a memo supporting the finance director's position that leave cash-ins were compensation. The timing of the legislature's action suggests that it was motivated by a desire to prohibit the use of cash-ins to inflate an employee's retirement benefits.\\nNot only did the board find that the \\\"availability of leave cash-in was nonexistent\\\" for McMullen at all times before the legislature amended the definition of compensation, the board also found that McMullen did not have any reasonable expectation that he would be able to include cashed-in leave when calculating his retirement benefits. McMullen stated at the hearing that during the collective bargaining negotiations in 1976, he considered the possibility that he might one day become eligible to cash in leave. But he admitted that it never occurred to him that cashed-in leave might be included when calculating retirement benefits. Indeed, he acknowledged that he \\\"didn't think of leave cash-ins as applying to [retirement benefits] until [he] was sent a copy of the Flisock decision.\\\" FHsock was decided in 1991-fourteen years after the legislature amended the law to bar a practice that could conceivably have given McMullen a vested right before then, but only if it had actually extended to him. The record amply supports the board's finding that during the period that preceded the legislature's exclusion of cashed-in leave from the definition of compensation McMullen never acquired a reasonable expectation of being able to include cashed-in leave when calculating his retirement benefits.\\nThe board issued an evenly split decision that had the effect of affirming the administrator's ruling. Because McMullen was not eligible to cash in leave when the legislature amended the definition of compensation and because he could not then have reasonably expected to be able to include cash-ins when calculating retirement benefits, the prevailing board members concluded that McMullen had no right to include his cashed-in leave when his retirement benefits were later calculated. We agree. Before the legislature amended the law in 1977, neither by law nor by practice did McMullen actually acquire a right to have his cashed-in leave included as part of his compensation. He therefore had no right that could have been impaired when the legislature excluded cashed-in leave from the definition of compensation. Accordingly, the division's refusal to allow MeMullen to include his cashed-in leave when calculating his retirement benefits does not violate article XII, section 7 of the Alaska Constitution.\\nIV. CONCLUSION\\nFor the foregoing reasons, we AFFIRM the board's decision that McMullen is not entitled to include his cashed-in leave as part of his compensation for purposes of calculating his retirement benefits.\\nFABE, Justice, not participating.\\n. Flisock v. State, Div. of Ret. & Benefits, 818 P.2d 640 (Alaska 1991).\\n. Id.\\n. The fifth member of the board did not participate due to a conflict.\\n. McMullen also argued in his appellate brief that \\\"three of the four questions posed to the Board on remand were irrelevant to a determination of whether McMullen's unused accrued leave should be included in his compensation.\\\" Because a resolution of this issue in McMullen's favor would not affect the outcome of this case, we decline to consider it.\\n. Alyeska Pipeline Serv. Co. v. DeShong, 77 P.3d 1227, 1231 (Alaska 2003).\\n. Holding v. Municipality of Anchorage, 63 P.3d 248, 250 (Alaska 2003).\\n. Handley v. State, Dep't of Revenue, 838 P.2d 1231, 1233 (Alaska 1992).\\n. Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979).\\n. DeYonge v. NANA/Marriott, 1 P.3d 90, 94 (Alaska 2000).\\n. Id. (internal quotation marks omitted).\\n. State v. Northwestern Constr., Inc., 741 P.2d 235, 239 (Alaska 1987).\\n. Id.\\n. Article XII, section 7 provides that:\\nMembership in employee retirement systems of the State or its political subdivisions shall constitute a contractual relationship. Accrued benefits of these systems shall not be diminished or impaired.\\n. Flisock v. State, Div. of Ret. & Benefits, 818 P.2d 640, 643 (Alaska 1991).\\n. See id. at 644; Sheffield v. Alaska Pub. Employees' Ass'n, 732 P.2d 1083, 1087 (Alaska 1987).\\n. Hammond v. Hoffbeck, 627 P.2d 1052, 1059 (Alaska 1981).\\n. Flisock, 818 P.2d at 643.\\n. Id.\\n. Id.\\n. Id.\\n. Id.\\n. Id. at 643-44.\\n. Id. at 642.\\n24. Ch. 84, \\u00a7 15, SLA 1969, quoted in Flisock, 818 P.2d at 643.\\n. Flisock, 818 P.2d at 644.\\n. Id.\\n. Id.\\n28. Former AS 39.35.680(4) (effective until June 30, 1977).\\n. Ch. 128, \\u00a7 54, SLA 1977.\"}"
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+"{\"id\": \"9368936\", \"name\": \"Johnny L. WATERS, Appellant, v. STATE of Alaska, Appellee\", \"name_abbreviation\": \"Waters v. State\", \"decision_date\": \"2003-02-14\", \"docket_number\": \"No. A-7600\", \"first_page\": \"169\", \"last_page\": \"175\", \"citations\": \"64 P.3d 169\", \"volume\": \"64\", \"reporter\": \"Pacific Reporter 3d\", \"court\": \"Alaska Court of Appeals\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T22:07:21.492414+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.\", \"parties\": \"Johnny L. WATERS, Appellant, v. STATE of Alaska, Appellee.\", \"head_matter\": \"Johnny L. WATERS, Appellant, v. STATE of Alaska, Appellee.\\nNo. A-7600.\\nCourt of Appeals of Alaska.\\nFeb. 14, 2003.\\nPaul E. Malin, Assistant Public Defender, and Barbara K. Brink, Public Defender, Anchorage, for Appellant.\\nW.H. Hawley, Jr., Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee.\\nBefore: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.\", \"word_count\": \"3449\", \"char_count\": \"21367\", \"text\": \"OPINION\\nMANNHEIMER, Judge.\\nJohnny L. Waters was arrested for burglarizing the community store in Shungnak and stealing approximately $16,000 from the store's safe. After spending a night in custody, Waters confessed to these crimes. He was subsequently convicted of second-degree burglary, second-degree theft, and second-degree criminal mischief.\\nWaters now appeals his convictions and his resulting sentence. He first contends that his confession was involuntary. He next contends that the trial judge improperly restricted his cross-examination of an accomplice who testified as a government witness. Finally, Waters argues that his sentence (a composite of 10 years to serve) is excessive. For the reasons explained here, we reject these contentions and affirm the superior court's judgement.\\nUnderlying facts\\nSometime during the night of April 10-11, 1999, the community store in Shungnak was burglarized. The burglars removed the safe from the store and, using a four-wheeler, transported it to a remote location. There, they chopped the safe open with an axe and removed its contents \\u2014 approximately $16,000.\\nThe next night, the Alaska State Troopers went to the residence of Johnny L. Waters and Jeffrey Sun to investigate their possible involvement in the burglary / theft. Troopers Richard Terry and Eric Olsen knocked on the door of the residence and were told to come in. Sun was on the couch in the front room. When the troopers asked who else was in the residence, Sun told them to find out for themselves. With guns drawn, the troopers proceeded to a bedroom where they discovered Waters resting with his girlfriend and daughter. Both Waters and Sun agreed to accompany the troopers to the village public safety building for questioning. This interview lasted approximately 30 minutes, and then both men returned home.\\nA few hours later, at approximately midnight that same night, the troopers arrested Waters and Sun and brought them back to the public safety building. After informing Waters of his Miranda rights , the troopers questioned Waters about the burglary. Waters told the troopers that they were wasting their time because he did not plan to say anything. Despite Waters's apparent invocation of his right to remain silent, the troopers continued to question him for approximately 30 minutes. Waters did not make any incriminating statements during this time.\\nFollowing this interview, the troopers seized Waters's pants and coat as evidence, and then they placed him in a cell for the night. During the next half-hour, while the troopers interrogated Jeffrey Sun in the other holding cell, Waters repeatedly shouted to Sun, urging him not to tell the troopers anything.\\nThe next day, however, Waters confessed his involvement in the burglary and showed the troopers where the safe was. Waters now claims that this confession was involuntary. This claim hinges on Waters's assertions that he had to endure torturous physical conditions in his cell and that, the next morning, the troopers promised him relief from his physical suffering and a visit with his family if he confessed.\\nWaters's claim that his confession on the morning of April 12th was involuntary\\nIn his suppression motion, Waters asserted that his cell was freezing cold and that the troopers left him there dressed only in his underwear. Waters claimed that he was unable to sleep because he was so cold. Waters also claimed that the troopers did not provide him with restroom facilities but rather made him relieve himself into a coffee can. Waters asserted that this physical discomfort and deprivation, combined with his extreme intoxication, reduced his normal powers of resistance. Waters also claimed that the troopers finally induced him to incriminate himself by promising him that he would be allowed to see his family if he confessed.\\nThe superior court held a hearing to investigate these allegations. At this evidentiary hearing, the State introduced evidence to rebut Waters's claims. According to this testimony, the village public safety building had three heating vents, one of which was near the two holding cells. The officer in charge of the facility (the village public safety officer) covered the other two vents with duct tape, leaving most of the heat channeled into the holding cells. A trooper and the village public safety officer both described the building as \\\"warm\\\".\\nWaters's cell contained blankets. The two officers who guarded Waters that night testified that he initially paced his cell but then slept. Waters awoke in the middle of the night and asked for extra blankets and some aspirin. The village public safety officer honored both of these requests. Waters then slept for several more hours.\\nThe evidence also showed that there was no plumbing in the village public safety building; thus, there were no restroom facilities for any occupant of the building \\u2014 officers or prisoners. Both officers and prisoners used a coffee can for urination and a toilet in a nearby building for defecation.\\nThe following morning, Waters's clothing was returned to him in preparation for his transportation to Kotzebue. At this time, Waters asked to call his girlfriend, and this request was granted. After speaking to his girlfriend, Waters asked to step out onto the porch to smoke a cigarette. Again, this request was granted; a state trooper (Eric Olsen) accompanied Waters.\\nWhile they were on the porch, Trooper Olsen remarked to Waters that he had finished his investigation of the burglary, that he knew who was involved, and that he felt sorry for Waters's daughter. In response, Waters expressed willingness to cooperate with the troopers, but only if he could see his family first.\\nThe troopers took Waters home to visit with his family. Following this visit, Waters led the troopers to the safe and to where some of the missing coins were buried.\\nBased on the evidence presented at this hearing, Superior Court Judge Richard H. Erlich found (1) that Waters's cell was sufficiently heated; (2) that Waters was given an additional blanket at his request; (3) that Waters was moderately intoxicated but not extremely so; (4) that Waters did sleep; and (5) that Waters was the one who suggested that he would cooperate in exchange for a visit with his family. Having made these findings of fact, Judge Erlich concluded that Waters's confession was voluntary.\\nAll of Judge Erlich's findings are supported by the evidence and are not clearly eiToneous.\\nIn this appeal, Waters supports his involuntariness claim with evidence that was developed at his trial. He is not entitled to do this. Although we have indicated that evidence developed at trial can be used to support the lower court's ruling on a pre-trial motion , such evidence can not be used to attack a pre-trial ruling unless the proponent of the motion affirmatively asks the trial judge to re-examine the pre-trial ruling in light of the newly-developed evidence. The lower court is the finder of fact \\u2014 the one who decides issues of historical fact by assessing the credibility of witnesses and the weight of the evidence. An appellate court can not undertake these tasks in the first instance. Therefore, if a party believes that later-developed evidence has shown that the trial court's pre-trial findings are erroneous, it is that party's duty to apprise the trial court of the situation and affirmatively seek a re-determination of the pre-trial issue.\\nWaters argues that it is unfair to deny an appellant the right to attack a pretrial ruling with evidence developed at trial. We disagree. The normal rule is that, absent plain error, a party challenging a trial court's ruling may not rely on an argument or on evidence that was not brought to the trial court's attention at the time the trial court made its ruling.\\nBased on Judge Erlich's findings of fact, and based on our independent evaluation of the record concerning the inferences to be drawn regarding Waters's state of mind and the overall issue of voluntariness , we uphold Judge Erlich's ruling that Waters's confession was voluntary.\\nWaters's claim that the trial judge improperly prevented Waters's attorney from cross-examining Jeffrey Sun about a prior criminal conviction\\nJeffrey Sun testified for the government at Waters's trial. In particular, Sun testified that he and Waters had been drinking together, that Waters had come up with the idea of burglarizing the store; and that he and Waters and two minors had perpetrated the burglary.\\nDuring the defense attorney's cross-examination of Sun, the following colloquy occurred:\\nDefense Attorney: What you're saying is that, after this [trial] is done, [two of the three charges pending against you] are going to be dismissed?\\nSun: Yes.\\nDefense Attorney: Those [charges] are going to be dismissed as part of an agreement that you've reached [with the State]?\\nSun: Yes.\\nDefense Attorney: . So you're not going to face three felony charges? . You're going to face one?\\nSun: Yes.\\nDefense Attorney: Okay, now. So you have a deal with the State?\\nSun: Yes.\\nDefense Attorney: Now, you're familiar with the court system.\\nSun: No.\\nDefense Attorney: Not at all?\\nSun: Not really.\\nAt this point, Waters's attorney requested a bench conference. The defense attorney told Judge Erlich that he wished to introduce evidence that Sun had been convicted of an unspecified crime in 1989. The prosecutor replied that a conviction from 1989 was 10 years old and was therefore not admissible under Alaska Evidence Rule 609(b). Judge Erlich thereupon ruled that Waters's attorney would not be permitted to question Sun about the 1989 conviction.\\nUnder Evidence Rule 609(b), a witness may be impeached with a criminal conviction if the conviction (1) is for a crime of dishonesty and (2) is no more than 5 years old\\u2014 although the trial judge has the authority to relax this 5 year time limit if evidence of the conviction \\\"is necessary for a fair determination of the case\\\". The record in Waters's case does not reveal what crime Sun was convicted of in 1989. Without proof that the conviction was for a crime of dishonesty, Waters has failed to show that Sun's conviction was admissible at all. Moreover, even assuming that Sun's conviction was for a crime of dishonesty, the conviction was 10 years old and Waters's attorney did not show that admission of this evidence was necessary for a fair trial.\\nIn this appeal, Waters argues that Sun's 1989 conviction should have been admitted to establish Sun's bias in favor of the State. Specifically, Waters argues that, because Sun had a criminal record, Sun had particular need to strike a deal with the State. Waters also argues that, because Sun had prior dealings with the criminal justice system, he knew that testifying against Waters would help him at his own sentencing. But the record does not reveal that either of these theories of admissibility was presented to Judge Erlich.\\nMoreover, even if Waters's attorney had argued these theories of admissibility, the record does not suggest that evidence of Sun's 1989 conviction was necessary for a fair trial. As can be seen from the portion of Sun's cross-examination quoted above, Sun openly conceded that he was getting favorable treatment (a substantial reduction of the charges) in exchange for his testimony. The jury also heard that this reduction of charges had not occurred yet \\u2014 that it would occur after Waters's trial, and that it was contingent on Sun's testimony. Thus, the jury understood Sun's potential motivation to frame his testimony with an eye toward securing Waters's conviction. Finally, Judge Erlich expressly instructed the jurors that they should view the testimony of an accomplice with mistrust. Waters fails to convincingly explain how evidence of Sun's 1989 conviction for an unspecified crime would have substantially altered the jury's understanding of Sun's motives for testifying as a government witness.\\nWaters's sentencing claims\\nWaters was convicted of three offenses: second-degree burglary, second-degree theft, and second-degree criminal mischief \\u2014 what would now be third-degree criminal mischief after the 2002 amendment to the criminal mischief statutes. , Each of these offenses is a C felony, carrying a penalty of up to 5 years' imprisonment.\\nWaters has an extensive criminal history. He was convicted of first-degree burglary in 1987 and 1988. In 1989, he was charged with second-degree weapon misconduct for shooting a .22-caliber rifle from his window while he was intoxicated, but this charge was dismissed after he admitted that this conduct violated his probation from the earlier offenses. In 1990, Waters was convicted of third-degree assault for firing a rifle through someone's front window during an altercation. He was also twice convicted of burglarizing the Shungnak post office (where his mother worked) in 1990 and in 1992. Waters's history included a number of minor offenses as well \\u2014 convictions for such things as underage drinking, providing alcohol to a minor, and fourth-degree theft (for stealing a bottle of liquor from someone's vehicle).\\nBecause Waters had more than two prior felony convictions, he was a \\\"third felony offender\\\" for presumptive sentencing purposes and he therefore faced a 3 year presumptive term for each crime. Judge Erlich found that the State had proved three aggravating factors under AS 12.55.155(c): (c)(3) \\u2014 that Waters was the leader of a group of three or more persons who perpetrated the offense; (c)(21) \\u2014 that Waters had a history of similar criminal offenses; and (c)(27)(B) \\u2014 that Waters was an adult (ie., someone older than 18) who was aided or abetted by a juvenile who was at least three years younger than him. Because of these aggravating factors, Judge Erlich was authorized to consider sentences of up to the maximum term' of imprisonment.\\nAt the close of the sentencing hearing, Judge Erlich sentenced Waters to a composite term of 10 years' imprisonment. (Waters received 5 years to serve for the burglary, a consecutive 3 years to serve for the theft, and a consecutive 2 years to serve for the criminal mischief,) Waters claims that this composite sentence is excessive.\\nWaters- first points out that, in Judge Er-lich's sentencing remarks, the judge concluded that Waters was a \\\"dangerous offender\\\" within the meaning of Standard 18-4.4(c)of the American Bar Association's Standards for Criminal Justice. Waters claims that he does not fall within the ABA's definition of \\\"dangerous offender\\\", but this question is ultimately beside the point.\\nUnder older Alaska sentencing cases, a judge normally could not impose a sentence of 10 years or more unless the defendant fit the ABA's definition of \\\"dangerous offender\\\". But the Alaska Supreme Court disapproved this line of cases in State v. Wentz, 805 P.2d 962, 966 (Alaska 1991). Thus, Judge Erlich could sentence Waters to serve 10 years in prison without finding that Waters was a \\\"dangerous offender\\\" within the technical meaning assigned to this phrase in ABA Standard 18-4.4(c). Given the supreme court's decision in Wentz, the question is not whether Judge Erlich properly classified Waters as a \\\"dangerous offender\\\" under the ABA's definition. That question is moot. Instead, the question is whether Waters's history and the facts of his current offenses justify his sentence.\\nNevertheless, Waters's case is still governed by the so-called Mutschler rule (even though the rule is more clearly stated in Neal v. State) \\u2014 the rule that, before a judge imposes a composite sentence that exceeds the maximum term of imprisonment for the defendant's most serious single offense, the judge must expressly find that such a sentence is required to protect the public. Judge Erlich did not make an express finding that a 10-year composite sentence was required to protect the public. Waters argues that, without an express finding, his sentence is improper. The State argues, on the other hand, that such a finding is implicit in the sentencing record.\\nWaters was thirty-one years old at the time of sentencing. He had battled an alcohol problem throughout his adult life. Judge Erlich found that Waters was the \\\"mastermind\\\" of the burglary and theft in the present case, and he noted that Waters had a lengthy history of felony and misdemeanor offenses. The judge also noted that Waters failed to take advantage of numerous opportunities to reform his behavior. The judge declared that the people of Shungnak had been \\\"subjected to [Waters's] terror for the last ten years\\\".\\nIt is true that Judge Erlich did not expressly address the Neal-Mutschler rule when he imposed the 10-year prison term. However, an express finding is not always required. In Neal, the supreme court declared that no express finding was needed under the following circumstances:\\nThe record contains ample evidence that [the defendant] presents a risk of continued criminal conduct which would seriously threaten the public safety. [The defendant] was twenty-nine years of age at the time of sentencing. He has been a heroin addict for ten years and has compiled a lengthy criminal record, including numerous felony and misdemeanor drug offenses and several property offenses. Extensive drug rehabilitation efforts have been a failure. With complete foresight [the defendant] helped to plan, organize, and carry out a highly dangerous and extremely serious crime [armed robbery of a bank]. It is clear that [the defendant] presents a threat of criminal conduct which would seriously threaten the public safety. Given his repeated rehabilitative failures and his conduct on this occasion, the threat is substantial.\\nNeal, 628 P.2d at 21.\\nThese circumstances are quite similar to the facts of Waters's case. Waters, too, was a mature adult with a lengthy history of serious offenses and a seemingly intractable substance abuse problem. He was the prime mover behind a burglary that netted a large amount of money. Although Waters's present offenses (burglary, theft, and criminal mischief) are less serious than the armed robbery in Neal, his composite sentence of 10 years to serve is also less severe than the 18-year composite sentence involved in Neal.\\nAs was true in Neal, the sentencing record in Waters's case shows that he \\\"presents a [substantial] risk of continued criminal conduct which would seriously threaten the public safety\\\". We therefore uphold Waters's composite sentence even though Judge Er-lich failed to make an explicit finding under the Neal-Mutschler rule.\\nConclusion\\nThe judgement of the superior court is AFFIRMED.\\n. AS 11.46.310(a), AS 11.46.130(a)(1), and former AS 11.46.482(a)(1) (pre-2002 version), respectively.\\n. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).\\n. See Hubert v. State, 638 P.2d 677, 680 n. 2 (Alaska App.1981).\\n. See Willis v. State, 57 P.3d 688, 691-92 (Alaska App.2002) (explaining that \\\"[u]nder Alaska Criminal Rule 46, an attorney does not preserve a claim of error unless, at the time of the ruling or order of the court is made or sought, [the attorney] makes known to the court the action which the party desires the court to take or the [attor ney's] objection to the action and the grounds therefor.\\\") (emphasis in original).\\n. See John v. State, 35 P.3d 53, 62 (Alaska App.2001); Beagel v. State, 813 P.2d 699, 704 (Alaska App.1991) (\\\"As to matters involving the accused's state of mind and the issue of voluntariness, this court will examine the entire record and make an independent determination.\\\").\\n. Although Waters argues in his opening brief that Sun's 1989 conviction was for burglary, the record does not reveal the nature of the 1989 conviction. Waters concedes this point in his reply brief.\\n. In 2002, the legislature created a new crime of first-degree criminal mischief and redesignated the three pre-existing degrees of criminal mischief accordingly. See SLA 2002, chapter 92, \\u00a7 5-13.\\n. Respectively, AS 11.46.310(b), AS 11.46.130(c), and former AS 11.46.482(b) (now re-lettered as 482(d)).\\n. AS 12.55.125(e).\\n. See AS 12.55.185(14).\\n. See AS 12.55.125(e)(2).\\n. See AS 12.55.155(a)(1).\\n. According to this ABA standard, a \\\"dangerous offender\\\" is a person who has committed at least two prior felonies.on different occasions within five years of the .person's current offense, and who has previously served a sentence exceeding one year. See Williams v. State, 800 P.2d 955, 959 n. 5 (Alaska App.1990).\\n. See Neal v. State, 628 P.2d 19, 21 (Alaska 1981): \\\"Our past decisions imply that where consecutive sentences for two or more counts exceed the maximum sentence for any single count, the sentencing judge should make a formal finding that confinement for the combined term is necessary to protect the public.\\\" (Citing Mills v. State, 592 P.2d 1247, 1248 (Alaska 1979), and Mutschler v. State, 560 P.2d 377, 381 (Alaska 1977)).\\n. See Neal, 628 P.2d at 22.\\n. Neal, 628 P.2d at 22.\"}"
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+"{\"id\": \"9477389\", \"name\": \"John BRUNS and Dennis Saathoff, Appellants, v. MUNICIPALITY OF ANCHORAGE, ANCHORAGE WATER & WASTEWATER UTILITY, Appellee\", \"name_abbreviation\": \"Bruns v. Municipality of Anchorage, Anchorage Water & Wastewater Utility\", \"decision_date\": \"2001-06-01\", \"docket_number\": \"No. S-9394\", \"first_page\": \"362\", \"last_page\": \"372\", \"citations\": \"32 P.3d 362\", \"volume\": \"32\", \"reporter\": \"Pacific Reporter 3d\", \"court\": \"Alaska Supreme Court\", \"jurisdiction\": \"Alaska\", \"last_updated\": \"2021-08-10T18:00:13.572446+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before FABE, Chief Justice, MATTIIEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.\", \"parties\": \"John BRUNS and Dennis Saathoff, Appellants, v. MUNICIPALITY OF ANCHORAGE, ANCHORAGE WATER & WASTEWATER UTILITY, Appellee.\", \"head_matter\": \"John BRUNS and Dennis Saathoff, Appellants, v. MUNICIPALITY OF ANCHORAGE, ANCHORAGE WATER & WASTEWATER UTILITY, Appellee.\\nNo. S-9394.\\nSupreme Court of Alaska.\\nJune 1, 2001.\\nRehearing Denied Aug. 14, 2001.\\nKenneth W. Legacki, Anchorage, for Appellants.\\nTheresa Hillhouse, Assistant Municipal Attorney, Mary K. Hughes, Municipal Attorney, Anchorage, and Jill D. Bowman, Stoel Rives LLP, Seattle, WA, for Appellee.\\nBefore FABE, Chief Justice, MATTIIEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.\", \"word_count\": \"5061\", \"char_count\": \"32312\", \"text\": \"OPINION\\nFABE, Chief Justice.\\nI. INTRODUCTION\\nJohn Bruns and Dennis Saathoff. former general foremen for the Municipality of Anchorage's Anchorage Water and Wastewater Utility, filed suit in Anchorage Superior Court in 1996 claiming back overtime pay. Bruns and Saathoff alleged that the Municipality owed them overtime pay under federal, state, and municipal law. The superior court granted the Municipality's motion for summary judgment and dismissed the plaintiffs' claims on the basis that the plaintiffs failed to exhaust their administrative remedies. Bruns and Saathoff have appealed this decision. Because Bruns and Saathoff alleged that they were threatened with discharge if they pursued their administrative remedies, there is a factual issue as to whether their failure to exhaust administrative remedies was excused. Therefore, we reverse and remand to the superior court for trial of this factual issue.\\nII. FACTS AND PROCEEDINGS\\nJohn Bruns and Dennis Saathoff are former employees of the Anchorage Water and Wastewater Utility, a utility owned by the Municipality of Anchorage. Both Bruns and Saathoff spent the last phases of their careers at Anchorage Water and Wastewater Utility as general foremen. Bruns was a general foreman from June 11, 1983 until his retirement on January 26, 1996. Saathoff was a general foreman from 1979 or 1980 until his retirement on April 29, 1994. As general foremen, Bruns and Saathoff were \\\"non-represented employees\\\" and not within a union's bargaining unit.\\nThe Municipality has an ordinance governing overtime pay for non-represented Municipal employees such as Bruns and Saathoff. Anchorage Municipal Code (AMC) 3.30.129(B)(1) states as a general rule that \\\"overtime\\\" work must be compensated at one and one-half times the normal pay rate.\\nSometime during 1995 it came to the attention of Thomas Tierney, Director of the Municipality's Department of Employee Relations, that the Municipality was inconsistently applying AMC 8.30.129. In a meeting on October 3, 1995, Tierney reported to the mayor and other Municipality officials that many non-represented Municipality employees were entitled to overtime pay under AMC 3.30.129 but were not receiving it. Ti-erney explained that the employees did not \\\"put in\\\" for the overtime because they had the impression that they were not entitled to it. At the same time, the Municipality considered amending AMC 8.30.129 to eliminate overtime compensation for non-represented employees earning salaries above a certain level, including both Bruns and Saathoff. The Municipality eventually passed an amendment that eliminated overtime for some employees-but for fewer than originally contemplated. This change took place after Bruns and Saathoff both retired.\\nBoth Bruns and Saathoff claim that they worked overtime during their tenure as general foremen, and were not fully compensated for this overtime work. Bruns claims that he responded to an average of nine \\\"call-outs a year, and he claimed overtime for at least some of these However, Bruns was not paid for all of the call-outs that he claimed. Bruns also asserts that he was eligible for \\\"standby\\\" pay but did not put in for it until the last few months of his career, because he was under the impression that he would not get it if he asked for it. Saathoff also claims that he was on standby and did many call-outs, and was not paid overtime pay for any of these services.\\nOn March 1, 1996, Bruns and Saathoff together filed suit against the Municipality in Anchorage Superior Court, claiming an entitlement to back overtime pay. Because they based one claim on the federal Fair Labor Standards Act (FLSA), the Municipality removed the case to the U.S. District Court in Anchorage. Bruns and Saathoff also made claims under state and municipal law; the U.S. District Court exercised supplemental jurisdiction over these claims.\\nThe U.S. District Court granted the Municipality's motion for summary judgment on the federal law claims, because Bruns and Saathoff were \\\"exempt\\\" employees not subject to the FLSA. It remanded claims under state and municipal law to the superior court. The U.S. District Court entered final judgment, and the U.S. Court of Appeals for the Ninth Cireuit affirmed the grant of summary judgment.\\nIn the superior court, the Municipality moved for summary judgment on the plaintiffs' state and municipal law elaims. Bruns and Saathoff filed an opposition to these motions, and the superior court granted the Municipality's motions for summary judgment, ruling that Bruns and Saathoff failed to exhaust their administrative remedies.\\nThe Municipality moved for an award of attorney's fees and costs, and the superior court awarded $24,421.00 in attorney's fees to the Municipality.\\nBruns and Saathoff appeal the superior court's rulings.\\nIII. STANDARD OF REVIEW\\nThis is an appeal of summary judgment entered by a superior court, and therefore should be reviewed de novo. We will affirm a summary judgment if there are no genuine issues of material fact and if the moving party is entitled to judgment as a matter of law.\\nThis appeal requires us to decide whether the doctrine of exhaustion of administrative remedies applies to a particular claim; this is a question of law that we review de novo. If this doctrine applies, we will review for abuse of discretion the lower court's findings on whether the available administrative remedies were actually exhausted. Any conclusions of law, such as the conclusion that the failure to exhaust was excused, will be reviewed using our independent judgment.\\nIV, DISCUSSION\\nIn the superior court, the Municipality sue-cessfully moved for summary judgment on all claims asserted by Bruns and Saathoff, The plaintiffs had two different groups of claims in this suit: (1) a state law claim under the Alaska Wage and Hour Act; and (i) a municipal law claim under AMC 3.30.129(B) and AS 28.05.140(b).\\nThe plaintiffs have only appealed the dismissal of their municipal law claims under AMC 3.830.129(B) and AS 23.05.140(b). Bruns and Saathoff have abandoned their state law (Alaska Wage and Hour Act) claims on appeal, because the Municipality is exempted from the Alaska Wage and Hour Act under AS 28.10.055(5). Therefore, the Alaska Wage and Hour Act is not applicable to this case.\\nThe municipal law claims made by Bruns and Saathoff arise under AMC 8.30.129(B), which requires the Municipality to pay overtime compensation to its employees under some circumstances. This municipal law claim is bound up with a state statute, former AS 28.05.140(b), which provided:\\nIf the employment is terminated, regardless of the cause of termination, all wages, salaries, or other compensation for labor or services become due immediately and shall be paid within three working days after the termination at the place where the employee is usually paid or at a location agreed upon by the employer and employee.\\nFormer AS 23.05.140(b) required an employer to pay all wages due, including overtime, upon termination of the employee. Anchorage Municipal Code 3.30.129(B), in turn defines what wages are due, and are therefore required to be paid by AS 23.05.140(b) Anchorage Municipal Code 3.30.129(B) states as a general rule that approved overtime work in excess of forty hours per week must be compensated at one and one-half times the normal pay rate. The ordinance also defines and requires compensation for two specialized types of overtime pay-\\\"call-out\\\" pay and \\\"standby\\\" pay.\\nAs already noted, the plaintiffs claim that they are entitled to overtime pay owed to them under AMC 8.30.129(B); if this is true, AS 28.05.140(b) demands that they be paid these wages, since they must be paid wages due to them after termination. However, the superior court, in its decision granting the Municipality's motion for summary judgment, held that the plaintiffs' municipal law claim is foreclosed, because the plaintiffs failed to exhaust the administrative remedies available under AMC 3.30.101. Anchorage Municipal Code 8.30.101 provides for a three-step procedure for grievances filed by employees because of disputes concerning AMC 3.30.129 and other matters. The three steps are: (1) \\\"informal discussion,\\\".(2) decision by agency head after receipt of a written grievance, and (8) decision by the mayor's office.\\nWe have stated that the analysis of the doctrine of exhaustion of administrative remedies involves three questions. In applying the doctrine of exhaustion of remedies, we must decide the following: (a) is exhaustion of remedies required?; (b) did the complainant exhaust those remedies?; and (c) is the failure to exhaust remedies exeused? These three questions will be discussed in turn.\\nA. Bruns and Saathoff Were Required to Exhaust Their Administrative Remedies.\\nGenerally, employees must exhaust any administrative remedies that they have before pursuing direct judicial actions against their employers. And, as the Municipality argues, there were administrative remedies available to Bruns and Saathoff; AMC 3.30.100-.102 provides a three-step procedure for grievances-such as those had by Bruns and Saathoff-concerning alleged violations of Title 3, Chapter 30 of the Anchorage Municipal Code. The superior court held that the plaintiffs were required to exhaust the administrative remedies available under AMC 8.30.100-102. The issue of whether an employee is required to exhaust administrative remedies is a question of law that we review de novo.\\nAs we have held previously, employees who have a dispute with the Municipality over some provision of the Municipality's \\\"Personnel Rules\\\" are subject to the requirement that employees must exhaust the administrative remedies available to them before seeking judicial relief. In Municipality of Anchorage v. Higgins, we considered a case where a plaintiff employee of the Municipality filed suit because he was reclassified from a \\\"classified\\\" to an \\\"executive\\\" employee of the Municipality. We held that the employee in Higgins failed to exhaust the remedies available under AMC 3.30.101 before proceeding with judicial action. Like the employee in Higgins, Bruns and Saathoff have asserted claims under the Municipality's Personnel Rules. Therefore, like the employee in Higgins, they must exhaust the administrative remedies available under AMC 8.30.101.\\nIn two arguments, the plaintiffs claim that, nevertheless, they were not required to exhaust the remedies available under AMC 3.30.101. The plaintiffs claim: (1) that their claim is really a state claim under AS 23.05.140(b), and that there is no exhaustion of remedies requirement for AS 23.05.140(b); and (2) that the exhaustion of remedies requirement does not apply because the plaintiffs are challenging the validity of a statute and not any particular agency decision. For the reasons stated below, we reject both of these arguments.\\n1. The requirements of AMC 3.30.129(B) mast be fulfilled before AS 28.05.140(b) is considered.\\nThe plaintiffs argue that they were not required to exhaust their administrative remedies because the exhaustion requirement does not apply to AS 28.05.140(b), and that their claims under AMC 8.30.129(B) are better construed as claims under AS 23.05.140(b). Specifically, the plaintiffs claim that there is no exhaustion requirement for AS 23.05.140, that AS 28.05.140 creates rights that are \\\"non-waivable\\\" and not subject to administrative proceedings, that the Municipality is attempting to enforce a fifteen-day \\\"private\\\" statute of limitations that does not apply to AS 28.05.140, and that the grievance process of AMC 8.80.101 is \\\"preempted\\\" by AS 28.05.140. All of these arguments amount to this: the plaintiffs argue that their municipal law claim under AMC 3.30.129(B) is better construed as a state law claim under AS 28.05.140(b), and for the four reasons above, the exhaustion requirement does not apply to AS 23.05.140(b).\\nThe plaintiffs' arguments here fail for one central reason: a violation of AMC 3.30.129(B) is really the predicate for a violation of AS 28.05.1406). Alaska Statute 28.05.140(b) only requires employers to pay all wages due to terminated employees within three days of termination. However, AS 28.05.140(b) does not define what wages are due, or impose any requirements on employers that any specific wages, including overtime wages, will be due. Anchorage Municipal Code 8.30.129(B), on the other hand, defines what overtime wages are due, by defining and requiring overtime, call-out, and standby pay. As already established, the plaintiffs had to exhaust administrative remedies before bringing a claim for a violation of AMC 8.30.129(B). The plaintiffs cannot show a violation of AS 28.05.140(b) without first showing a violation of AMC 3.30.129(B), so they cannot escape the exhaustion of administrative remedies requirement.\\nIn reaching this conclusion we are guided by our previous decisions concerning the application of AS 28.05.140(b). In Reed v. Mu-mierpality of Amchorage, we considered a suit brought by an employee for unpaid wages under AS 28.05.140(b). We held that this claim should be construed as a claim under the underlying collective bargaining agreement that defines what wages are due to the employee:\\nWe do not believe that [the employee's] cause of action is strictly or solely an action for liability upon a statute [AS 28.05.140(b)]. Rather, we construe [the employee's] cause of action in Count I to allege a breach of the collective bargaining agreement.... The agreement contains the specified wage rates at which employees . are required to be paid. Both parties agree that they are bound by the collective bargaining agreement. The Mu-micwpality's failure to pay the specified wage would be a violation of the collective bargaining agreement. Thus, [the employee'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.\\nIn Reed, we also held that the six-year contract limitations period for the underlying collective bargaining agreement would apply to the employee's claim, rather than the two-year limitations period for AS 28.05.140(b).\\nIn Quinn v. Alaska State Employees Ass'n, we considered a suit brought by an employee for unpaid overtime under AS 28.05.140(b). Quinn also stands for the proposition that the underlying authority that defines what wages are due-in Quinn, the Alaska Wage and Hour Act-must be looked to first to determine if wages are due. In Quinn, we held that claims barred under the Alaska Wage and Hour Act are not \\\"revived\\\" by AS 28.05.140(b) Quinn and Reed together indicate that, for a cause of action under AS 28.05.140(b), the court should look first to the underlying statute or agreement that resolves the question of what wages are due.\\nAs we held in Reed and Quinn, claims under AS 28.05.140 are to be construed as claims under the underlying authority that defines what wages are due. Alaska Statute 25.05.14\\\" does not create \\\"non-waivable\\\" rights because it grants no rights at all unless the wages are owed under AMC 3.30.129(B) or some other authority. Reed establishes that the limitations period for AS 28.05.140 does not trump the limitations period for the underlying authority that establishes what wages are due; this also indicates that AMC 3.80.129(B) (as the underlying authority) and AMC 3.30.101 are not preempted by AS 28.05.140. Because the amount of wages must be established by AMC 3.30.129(B) before applying AS 28.05.140(b), we reject each of the arguments made by the plaintiffs concerning the independence of their AS 28.05.140(b)\\n2. Bruns and Saathoff sought an administrative remedy.\\nThe plaintiffs also claim that they were not required to exhaust their administrative remedies because they were challenging the validity of a statute, and not an administrative decision, and under those cireumstances, exhaustion is not required. In State Department of Transportation & Public Facilities v. Fairbanks North Star Borough, and Carter v. Alaska Public Employees Ass'n, we held that exhaustion of administrative remedies is not required when an administrative remedy is not appropriate. An administrative remedy is not appropriate when the claimant challenges the validity of a statute authorizing or requiring administrative action and does not seek a particular analysis or application of a statute. In other words, exhaustion is required when the plaintiff seeks relief that the administrative agency in question could have (but didn't) grant-this relief is \\\"administrative.\\\" On the other hand, if the plaintiff seeks relief that the administrative agency could not have granted, such as overturning or interpreting a statute, exhaustion is not required because the relief sought is \\\"judicial.\\\"\\nBruns and Saathoff claim that exhaustion was not required in their case because they do not challenge any particular agency decision. However, Bruns and Saa-thoff seek a clearly administrative remedy-they seek payment of allegedly due overtime wages. Bruns and Saathoff do not ask us to interpret or overturn provisions of state and federal law-rather, they ask this court to enforee these provisions. Therefore, Bruns and Saathoff seek an administrative remedy and were therefore required to exhaust their administrative remedies.\\nB. Bruns and Saathoff Did Not Exhaust the Available Administrative Remedies.\\nThe parties do not dispute that Bruns and Saathoff failed to exhaust the available administrative remedies. Both parties agree that Saathoff only proceeded through the first step of the three-step grievance process under AMC 3.30.101, by discussing with his supervisors his dissatisfaction with the overtime pay situation. And, Bruns only proceeded through the second step of the three-step grievance process. Bruns discussed the matter with his supervisors and then filed a written grievance on November 3, 1995 with Tom Tierney, the Municipality's Director of Employee Relations. After Tierney denied Bruns's request for retroactive overtime pay, however, Bruns did not proceed to the third step of the procedure by appealing the matter to the mayor's office. Therefore, neither Bruns nor Saathoff proceeded through all three steps of the administrative process required by AMC 8.30.101, and neither exhausted his administrative remedies.\\nC. The Failure to Exhaust Administrative Remedies May Be Excused.\\nWe have previously held that even if a plaintiff failed to exhaust her administrative remedies, the plaintiff may still seek judicial relief if the failure is excused. The superi- or court held that the failure of Bruns and Saathoff to exhaust the available administrative remedies is not excused. We will review this decision, which is a conclusion of law, using our independent judgment.\\nBruns and Saathoff argue that their failure to exhaust the available administrative remedies is excused because threats of retaliatory discharge dissuaded them from going ahead with the grievance process.\\nWe have stated that the failure to exhaust administrative remedies is excused \\\"where the administrative remedy is inadequate or where the pursuit of the administrative remedy would be futile due to the certainty of an adverse decision.\\\" We have never considered the issue of whether fear of retaliatory discharge excuses failure to exhaust administrative remedies. However, fear of retaliatory discharge, like futility, bias, or other defects in the administrative process, can make pursuit of administrative remedies difficult or ineffective, and in some cireumstances can excuse the employee's failure to exhaust available administrative remedies.\\nBruns and Saathoff have both stated under oath that they were threatened with retaliatory discharge when they brought up the subject of overtime pay with their immediate supervisors. This presents a factual question of whether threats were actually made that might excuse the plaintiffs' failure to exhaust their administrative remedies. The superior court failed to address this factual issue explicitly and even if it did so implicitly, a material factual issue remains that prevents summary judgment.\\nV. CONCLUSION\\nBruns and Saathoff were required to exhaust the available administrative remedies provided by AMC 8.80.101 before bringing this judicial action against the Municipality, and they failed to do so. However, because the plaintiffs alleged under oath that they were threatened with retaliatory discharge if they pursued their administrative remedies, there is a factual issue as to whether the failure is excused. Therefore, we REVERSE the superior court's grant of summary judgment and award of attorney's fees, and REMAND for further proceedings.\\n. Overtime work must be approved by the agency head and includes hours actually worked in excess of 40 hours in a week. AMC 3.30.129(B)(1).\\n. Anchorage Ordinance 96-55 (April 2, 1996) (amendment AMC 3.30.129).\\n. In a \\\"call-out,\\\" an employee is \\\"called out\\\" to perform overtime work after completing a scheduled shift. See AMC 3.30.129(B)(2).\\n. An employee is on \\\"standby\\\" status when the employee must remain available for work outside of regularly scheduled working hours. See AMC 3.30.129(B)(3).\\n. In this opinion, Bruns and Saathoff will sometimes be referred to collectively as \\\"the plaintiffs.\\\"\\n. 29 U.S.C. \\u00a7 201-219.\\n. Bruns v. Municipality of Anchorage, No. 97-36060, 1999 WL 288910, 182 F.3d 924 (9th Cir. May 10, 1999) (unpublished opinion).\\n. See Moore v. Allstate Ins. Co., 995 P.2d 231, 233 (Alaska 2000).\\n. See id.; Alaska R.Civ.P. 56(c).\\n. See State, Dep't of Transp. & Pub. Facilities v. Fairbanks North Star Borough, 936 P.2d 1259, 1260 n. 3 (Alaska 1997).\\n. See State v. Beard, 960 P.2d 1, 5 (Alaska 1998).\\n. See id.\\n. The Alaska Wage and Hour Act claims made by Bruns and Saathoff were claims under AS 23.10.060(b) and AS 23.10.110.\\n. AS 23.10.055 states in part, \\\"The provisions of AS 23.10.050-23.10.150 do not apply to . (5) an individual employed by the United States or by the state or political subdivision of the state.\\\"\\n. Former AS 23.05.140(b) (1983).\\n. This is because AS 23.05.140(b) by itself does not define what wages are due-it simply requires that wages that are due be paid.\\n. AMC 3.30129(B)(1).\\n. Former AMC 3.30.129(B) provides:\\nPay rates for overtime premium pay.\\n1. Time and one-half pay. Employees shall be paid at one and one-half times their regular rate of pay for all hours actually worked in excess of 40 hours in one week....\\n2. Call-out pay. When an employee has completed his scheduled shift and is \\\"called out\\\" to perform additional work, he shall receive overtime pay for actual hours worked with a minimum guarantee of four hours' pay at the employee's straight time hourly rate. Overtime pay shall be paid in accordance with subsection B.1 of this section.\\n3. Standby pay. In cases where it is found necessary to have employees remain available for work in a standby status after regularly scheduled hours, on scheduled days off, or holidays, they shall receive two hours' pay at the straight time rate for each day of such duty. When such an employee is called out for work, the standby pay shall be credited toward the minimum call-out payment.\\n. AMC 3.30.100 defines a \\\"grievance\\\" (subject to the procedure in AMC 3.30.101) as a \\\"dispute involving the interpretation, application or alleged violation of any section of this chapter [including AMC 3.30.129].\\\"\\n. AMC 3.30.101 provides:\\nA grievance shall be processed in accordance with the procedures and within the time limits stated in this section and section 3.30.102.\\nA. Step 1-Informal Discussion\\nThe aggrieved employee shall discuss the grievance with the agency head. If the grievance cannot be resolved informally through discussion, it shall then be reduced to writing as a formal grievance, and the written grievance shall be submitted to the agency head. The written grievance must be submitted within 15 days of the date that the employee knows or has reason to know of the conduct or actions upon which the grievance is based. Failure to notify the municipality within the specified time limits identified in the procedure shall constitute a bar to further action on the alleged grievance....\\nB. Step 2-Decision by Agency Head\\nUpon receipt of [the written grievance submitted in Step 1], an agency head shall, within five working days, respond in writing. Upon receipt of the agency head's response, the employee shall have five working days to appeal the decision in writing to the mayor. If the employee fails to appeal the agency head's decision within five days, such failure to respond will serve to declare the grievance as settled based upon the agency head's decision.\\nC. Step 3-Decision by Mayor\\nWithin five working days of receipt of a written appeal from the decision of the agency head, the mayor or his designee shall review the matter and respond in writing to the employee's grievance. Upon receipt of the mayor's decision, the employee shall have [ive working days in which to submit a written request for arbitration to the director. If the employee fails to file a written request for arbitration within the five days, such failure will serve to declare the grievance as settled based upon the mayor's decision.\\nIf, after proceeding through all three steps, the employee is not satisfied with the outcome, the employee may seek arbitration under AMC 3.30.102. The results of this arbitration may be appealed to the superior court under AS 09.43.120-.150.\\n. See State, Dep't of Transp. & Pub. Facilities v. Fairbanks North Star Borough, 936 P.2d 1259, 1260-61 (Alaska 1997).\\n. See Wilson v. Municipality of Anchorage, 977 P.2d 713, 724 (Alaska 1999).\\n. AMC 3.30.100-.102.\\n. See Fairbanks North Star Borough, 936 P.2d at 1260 n. 3.\\n. Title 3, Chapter 30 of the AMC.\\n. 754 P.2d 745 (Alaska 1988).\\n. Under the Municipality's Personnel Rules, \\\"classified\\\" employees can only be fired for cause, while \\\"executive\\\" employees serve at will without right of grievance or appeal. See Higgins, 754 P.2d at 746.\\n. Id. at 746-48.\\n. The administrative remedies procedure required by AMC 3.30.129(B) and AMC 3.30.101 has a builtin 15-day \\\"statute of limitations,\\\" since, in the first step of the three-step administrative grievance procedure required by AMC 3.30.101, the claimant is required to submit a written grievance within 15 days after the employee knows of the conduct in question.\\n. The plaintiffs argue that AS 23.05.140 preempts AMC 3.30.101 because the municipal ordinance \\\"substantially interferes with the effective functioning of the statute or its underlying purpose.\\\" Foreman v. Anchorage Equal Rights Comm'n, 779 P.2d 1199, 1203 n. 8 (Alaska 1989). The plaintiffs argue that there is substantial interference because the municipal ordinance's 15-day limitations period interferes with the much longer two-year limitations period under state law to enforce AS 23.05.140. See AS 23.10.130. The plaintiffs claim that there is interference because the state limitations period may lapse in the time that it takes to pursue administrative remedies under AMC 3.30.101. The plaintiffs also argue that AMC 3.30.129(B) and AMC 3.30.101 are \\\"in violation of the public policy\\\" embodied in AS 23.05.140 because of the conflict between the two limitations periods.\\n. 741 P.2d 1181, 1186 (Alaska 1987).\\n. Reed, 741 P.2d at 1185 (emphasis added).\\n. Id.\\n. 944 P.2d 468, 472-73 (Alaska 1997).\\n. Id. at 472.\\n. 741 P.2d at 1185.\\n. The plaintiffs' arguments were: AS 23.05.140 has no exhaustion requirement, AS 23.05.140 creates \\\"non-waivable\\\" rights, the Municipality is attempting to enforce a \\\"private\\\" statute of limitations (AMC 3.30.101), and AMC 3.30.101 is \\\"preempted\\\" by AS 23.05.140.\\n. 936 P.2d 1259, 1261-62 (Alaska 1997).\\n. 663 P.2d 916, 922 n. 19 (Alaska 1983).\\n. See Fairbanks North Star Borough, 936 P.2d at 1261-62 (holding that exhaustion is not required where the state challenged the validity of an ordinance that would have been applied by the administrative entity-a planning commission-in question); Carter, 663 P.2d at 922 n. 19 (holding that, where the issue was the interpretation of a public records statute, exhaustion is not required because \\\"the remedy sought is judicial rather than administrative\\\").\\n. As discussed earlier, AMC 3.30.101 establishes a three-step grievance process: (1) informal discussion; (2) decision by the agency head; and (3) appeal to the mayor's office. After the three-step process, under AMC 3.30.102 the matter may be appealed to arbitration and then to the superior court under AS 09.43.120-.150.\\n. See State v. Beard, 960 P.2d 1, 5 (Alaska 1998).\\n. See id. at 5-6.\\n. \\\"Retaliatory discharge\\\" is the discharge of the employee by the employer in retaliation for some activity protected by public policy, such as the employee's exercise of some political or legal right, or the employee's investigation of possible violations of law by the employer. See Palmateer v. International Harvester Co., 85 Ill.2d 124, 52 Ill.Dec. 13, 421 N.E.2d 876, 878-79 (Ill.1981).\\n. Eidelson v. Archer, 645 P.2d 171, 181 (Alaska 1982).\\n. Courts have held that failure to exhaust administrative remedies may be excused where the administrative procedures are ineffective because of lack of meaningful access, bias, futility, or the possibility that the claimant could face irreparable harm if the administrative process is followed. See Kevin W. Reese, Administrative Remedies Must Be Exhausted Absent Circumstances Supporting an Exception to Exhaustion Doctrine, 47 S.C.L.Rev. 17, 22 (1995); see also McCarthy v. Madigan, 503 U.S. 140, 148, 112 S.Ct. 1081, 117 L.Ed.2d 291 (1992) (explaining principle that a failure to exhaust administrative remedies may be excused when the administrative process is biased); Bowen v. City of New York, 476 U.S. 467, 483-84, 106 S.Ct. 2022, 90 L.Ed.2d 462 (1986) (holding that a failure to exhaust administrative remedies may be excused when the claimant faces a danger of irreparable harm from the administrative process); Robyns v. Reliance Standard Life Ins. Co., 130 F.3d 1231, 1236 (7th Cir.1997) (applying standard that a failure to exhaust administrative remedies may be excused where \\\"there has been a lack of meaningful access to the review procedures\\\"); Eidelson, 645 P.2d at 181 (establishing that failure to exhaust administrative remedies may be excused where the pursuit of the administrative remedy would be futile due to the certainty of an adverse decision). The plaintiffs' fear of retaliatory discharge is a type of harm that could render the administrative remedies here ineffective.\\nIt is well established that retaliatory discharge, if carried out, gives rise to a private right of action against the employer. We have recognized retaliatory discharge claims in our prior decisions. See Norcon, Inc. v. Kotowski, 971 P.2d 158, 167 (Alaska 1999) (recognizing that \\\"retaliatory discharge [for whistle blowing activities] gives rise to a cause of action for breach of the duty of good faith and fair dealing\\\"); Bishop v. Municipality of Anchorage, 899 P.2d 149, 154 (Alaska 1995) (assessing claim for alleged retaliatory discharge for protected First Amendment activity).\\n. Because we find that there is a factual issue as to whether the alleged threats excused the plaintiffs' failure to exhaust administrative remedies, we will not address the plaintiffs' other argument that their failure is excused because the administrative remedies available under AMC 3.30.101 (specifically, the 15-day limitations period) were inadequate.\\n. The superior court awarded attorney's fees to the Municipality after granting summary judg ment in favor of the Municipality. Because we reverse this grant of summary judgment, the award of attorney's fees must necessarily be reversed as well.\"}"
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