The Year in Review 2003: Selected Cases from the Alaska Supreme Court, the Alaska Court of Appeals, the United States Court of Appeals for the Ninth Circuit, and the Supreme Court of the United States

• Publication year: 2004

§ 21 Alaska L. Rev. 115. THE YEAR IN REVIEW 2003: SELECTED CASES FROM THE ALASKA SUPREME COURT, THE ALASKA COURT OF APPEALS, THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT, AND THE SUPREME COURT OF THE UNITED STATES

Alaska Law Review
Volume 21
Cited: 21 Alaska L. Rev. 115

THE YEAR IN REVIEW 2003: SELECTED CASES FROM THE ALASKA SUPREME COURT, THE ALASKA COURT OF APPEALS, THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT, AND THE SUPREME COURT OF THE UNITED STATES

Keith A. Rogers

THE YEAR IN REVIEW 2003: SELECTED CASES FROM THE ALASKA SUPREME COURT, THE ALASKA COURT OF APPEALS, THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT, AND THE SUPREME COURT OF THE UNITED STATES

I. INTRODUCTION

II. ADMINISTRATIVE LAW

III. BUSINESS LAW

IV. CIVIL PROCEDURE

V. CONSTITUTIONAL LAW

VI. CRIMINAL LAW

A. Procedure

B. Substantive

VII. EMPLOYMENT LAW

VIII. FAMILY LAW

IX. INSURANCE LAW

X. PROPERTY LAW

XI. TORT LAW

FOOTNOTES

I. INTRODUCTION

The Year in Review is a collection of brief summaries of selected cases concerning Alaska law. This year's edition is devoted to cases decided in 2003. The Year in Review is comprehensive neither in its breadth (many cases are omitted) nor in its depth (many issues within individual cases are omitted). Attorneys should not rely on these summaries as an authoritative guide; rather, the summaries are intended to provide a useful starting [*pg 116] point for additional research. The summaries are grouped by subject matter and presented alphabetically within each grouping.

Abbreviations. Several abbreviations are used throughout the Year in Review. The Alaska Rules of Civil Procedure, Criminal Procedure, and Evidence are abbreviated "Civil Rule ___," "Criminal Rule ___," and "Evidence Rule ___," respectively. The State Department of Health and Social Services, Division of Family and Youth Services is abbreviated "DFYS."

II. ADMINISTRATIVE LAW

In ACS of Alaska, Inc. v. Regulatory Commission of Alaska, ^[1] the supreme court held that where a competitor challenges an incumbent rural local service provider's exemption under the Federal Telecommunications Act, ^[2] the burden of proof must fall on the competitor. ^[3] The Federal Telecommunications Act exempts rural local telecommunications providers from being required to allow competitors to piggyback (or "interconnect") on their telecommunications networks. ^[4] However, the exemption does not apply to rural service providers if a competitor receives a bona fide request for interconnection, and the state regulatory commission determines that the request is not economically burdensome. ^[5] GCI Communications Corp. ("GCI") requested interconnection with three subsidiaries of the incumbent service provider, Alaska Communications Systems ("ACS"). ^[6] The Regulatory Commission of Alaska ("RCA") affirmed the termination of ACS's exemptions under the Telecommunications Act. ^[7] The court reversed the RCA's ruling, holding that the agency had inappropriately placed the burden on the incumbent local exchange carrier, ACS. ^[8] The court held that the Eighth Circuit's decision in Iowa Utilities Board v. FCC, ^[9] allocating the burden of proof to the competitor, controlled in this case, because federal appellate courts have jurisdiction to hear challenges to FCC rulings, and the Eighth Circuit's decision was the only ruling allocating the burden of proof in such [*pg 117] cases. ^[10] The court remanded the case for further proceedings that would allocate the burden of proof to GCI. ^[11]

In Brigman v. State, ^[12] the court of appeals held that the Department of Fish and Game ("DFG") had authority to define permit hunt areas and that these areas could be defined by internal decision. ^[13] Brigman was convicted for transporting a brown bear that was shot and killed in an area outside the designated permit hunt area. ^[14] Brigman appealed, arguing that the DFG had no authority to establish permit hunt areas and, in the alternative, that the DFG could not establish the permit hunt areas by internal decision since it would violate the Administrative Procedure Act ("APA"). ^[15] Rejecting this argument, the court of appeals found that a former regulation granted the DFG the power to establish brown bear permit hunt areas. ^[16] The court then presumed that the DFG established the permit hunt areas while this regulation was in effect. ^[17] Since there were no regulations that abolished the permit hunt areas, the court concluded that the DFG had the power to establish them. ^[18] The court of appeals then found that the establishment of the permit hunt areas did not constitute a "regulation" under the APA and therefore could be made by internal decision. ^[19] The court based its decision on Kachemak Bay Watch, Inc. v. Noah, ^[20] which stated that identification of districts that do not alter the rights of parties, do not deprive parties of a fair opportunity for public participation, and do not establish criteria by which permit applications should be evaluated do not constitute regulations under the APA. ^[21] Here, the court of appeals reasoned that the hunting permits were awarded by lottery and that all applicants therefore had an equal chance to secure a permit for a specified area. ^[22] Thus, the court of appeals found that the DFG had the authority to [*pg 118] establish permit hunt areas by internal decision, and affirmed Brigman's conviction. ^[23]

In Crawford and Co. v. Baker-Withrow, ^[24] the supreme court held that an Alaska Workers' Compensation Board ("Board") finding that Crawford and Company had unfairly and frivolously controverted insurance claims was a final appealable order. ^[25] Upon a determination that an insurer has frivolously or unfairly reported a workers' compensation claim, Alaska Statutes section 23.30.155(o) requires the Board to notify the Division of Insurance ("Division"), and for the Division to determine whether the insurer committed an illegal claim settlement practice. ^[26] Based on a statement of the Division's practices and policies, the court held that the Board's determinations and subsequent Division procedures, though necessarily linked, did not amount to a review process for re-examining the Board's factual findings of frivolous conversion. ^[27] Furthermore, the court held that the appealability of the Division's determinations of unfair claim settlement practices, under Alaska Statutes section 21.36.125, had no effect on its determination that the Board's decisions were final orders which were appealable immediately. ^[28]

In Enders v. Parker, ^[29] the supreme court held that an estate's personal representative was entitled to attorney's fees if her claim was brought in good faith. ^[30] Enders unsuccessfully sued Parker over the admission into probate of Joel Kottke's 1997 will, which disinherited Enders and transferred all interest to Parker. ^[31] Enders then sought payment of attorney's fees under Alaska Statutes section 13.16.435, and Parker cross-appealed for fees under Civil Rules 79(b) and 82(b). ^[32] On appeal, the supreme court held that under Alaska Statutes section 13.16.435 an estate claimant may recover attorney's fees upon satisfying three rules: (1) the claimant must be a personal representative or hold a nomination as such; (2) the suit must have been brought in good faith; and (3) the expenses must be necessary and attorney's fees reasonable. ^[33] Good faith ex-[*pg 119] ists if the personal representative acted to benefit the named successors in the instrument she sought to uphold. ^[34] The supreme court denied Parker's cross-appeal, stating that claims for attorney's fees under Rules 79(b) and 82(b) do not apply if a specific statutory scheme for attorney's fees exists, such as section 13.16.435. ^[35]

In Fuller v. City of Homer, ^[36] the supreme court held that under certain circumstances, the city cannot raise the deliberative process privilege in order to withhold documents from public view. ^[37] Fuller brought suit against the City of Homer after the city refused her requests to inspect various documents relating to an annexation petition which was ultimately approved by the city council. ^[38] The city claimed that the documents were protected under the deliberative process privilege. ^[39] The court stated that in order to establish a deliberative process privilege, the government must show that the disputed document is an internal communication which is both predecisional and deliberative. ^[40] If the government meets these requirements, the opposing party can then rebut the presumption of privilege by showing that the public's interest in disclosure outweighs the government's interest in confidentiality. ^[41] Here, the court determined that the public's interest in disclosure did outweigh any governmental interest in confidentiality, because Fuller requested to view the documents after the proposed annexation was submitted to and approved by the city council. ^[42] In addition, while the city's interest in confidentiality, significantly waned after approval by the city council, the public's interest in disclosure grew significantly stronger. ^[43] The court concluded that the deliberative process privilege was not available at the time Fuller's request was made; therefore, the court reversed and remanded the case with directions to grant Fuller's request. ^[44]

In...