The Year-in-review 2002: Selected Cases from Alaska Supreme Court, Alaska Courts of Appeals, U.s. Court of Appeals for the Ninth Circuit, and U.s. District Court for the District of Alaska

• Publication year: 2003

§ 20 Alaska L. Rev. 79. THE YEAR-IN-REVIEW 2002: SELECTED CASES FROM ALASKA SUPREME COURT, ALASKA COURTS OF APPEALS, U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT, AND U.S. DISTRICT COURT FOR THE DISTRICT OF ALASKA

Alaska Law Review
Volume 20
Cited: 20 Alaska L. Rev. 79

THE YEAR-IN-REVIEW 2002: SELECTED CASES FROM ALASKA SUPREME COURT, ALASKA COURTS OF APPEALS, U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT, AND U.S. DISTRICT COURT FOR THE DISTRICT OF ALASKA

Jason S. Veloso ^[*]

I. INTRODUCTION

ADMINISTRATIVE LAW

BUSINESS LAW

IV. CIVIL PROCEDURE

A. Claim and Issue Preclusion

B. Costs and Attorney's Fees

C. Miscellaneous

CONSTITUTIONAL LAW

VI. CRIMINAL LAW

A. Constitutional Protections

B. General Criminal Law

VII. EMPLOYMENT LAW

A. Labor Law

B. Workers' Compensation

C. Miscellaneous

VIII. FAMILY LAW

A. Child Support

B. Child Custody

C. Adoption and Termination of Parental Rights

D. Dissolution of Marriage and Distribution of Property

E. Miscellaneous

IX. INSURANCE LAW

X. PROPERTY LAW

XI. TORT LAW

FOOTNOTES

I. INTRODUCTION

The Year-in-Review contains brief summaries of selected decisions handed down in 2002 by the Alaska Supreme Court, Alaska Courts of Appeals, the U.S. Court of Appeals for the Ninth Circuit, and the U.S. District Court for the District of Alaska. The summaries focus on the substantive areas of the law addressed, the statutes or common law principles interpreted, and the essence of the primary holdings. Attorneys are advised not to rely upon the information contained in this review without further reference to the cases cited. The Year in Review is also available online at http://www.law.duke.edu/journals/20ALRYearinReview.

The opinions are grouped by general subject matter rather than the nature of the underlying claims. The summaries are presented alphabetically in the following ten areas of the law: administrative, business, civil procedure, constitutional, criminal, employment, family, insurance, property, and torts.

ADMINISTRATIVE LAW

In Chugach Electric Ass'n v. Regulatory Commission of Alaska, ^[1] the supreme court held that Alaska law required Chugach to obtain commission approval before selling electricity outside the geographic region to which it had previously been assigned to supply electric service. ^[2] Chugach had been granted a certificate of public convenience and necessity from the commission which allowed it to provide electric service within a specific geographic area, but it wished to provide electricity to two customers outside of that area. ^[3] The Regulatory Commission found that it had power to regulate competition and denied Chugach the opportunity to serve customers outside its area. ^[4] The superior court affirmed that Chugach needed commission approval to sell electricity outside its geographic area. ^[5] The supreme court also agreed that Alaska Statutes section 42.05.221(a) gives the Commission the general power [*pg 81] to limit competition through the issuance of certificates. ^[6] Further, the supreme court rejected Chugach's argument that there was a distinction between selling electricity as a commodity and providing electric utility services. ^[7]

In Cook Inlet Keeper v. State, Office of Management and Budget, Division of Governmental Coordination, ^[8] the supreme court held that the State could not exclude any permitted uses or activities from a Coastal Program consistency review of a specific project, regardless of whether a general permit for the activity had been previously granted. ^[9] The Forest Oil Corporation filed permit applications seeking to install an oil exploration platform over the Redoubt Shoals in Cook Inlet. ^[10] Under the Alaska Coastal Management Act ^[11] , the platform could only be authorized if the State determined that its use was consistent with the applicable Coastal Program standards. ^[12] Before the close of the public comment period on the permit, the U.S. EPA issued a general permit authorizing specified wastewater discharges for existing and future exploratory drilling projects in the upper Cook Inlet. ^[13] After the close of the public comment period, the State made a final consistency determination approving the platform but specifically excluding wastewater discharge activities because the EPA's permit already covered those activities. ^[14] Cook Inlet Keeper, an environmental group, appealed the matter to the superior court, which affirmed the consistency determination. ^[15] On appeal, the supreme court held that the various statutory provisions relating to consistency reviews unequivocally established that consistency review must be a project-specific process and that each consistency review determination must encompass the entire project. ^[16] The supreme court also held that the mere existence of an earlier consistency determination for the EPA's general permit could not justify the exclusion of the wastewater discharge activities from the project's consistency review. ^[17] Accordingly, the oil exploration project was [*pg 82] remanded for a full consistency review that included the wastewater discharge activities. ^[18]

In Hayes v. Municipality of Anchorage, ^[19] the supreme court held that a candidate living within a newly redrawn assembly district met the residency requirement to run for office in that district. ^[20] After Anchorage's assembly districts were redrawn in September of 2001, candidate Whittle's home of twenty years fell within a new district. ^[21] Candidate Hayes filed a petition in superior court to disqualify Whittle from appearing on the ballot because Anchorage law required a candidate to have lived in the district he is running in for at least one year prior to the election. ^[22] The superior court denied Hayes's petition. ^[23] The supreme court affirmed, holding that Whittle, having lived in the same residence for over twenty years, fulfilled the requirements of the Charter and was eligible to run for election. ^[24] The court reasoned that the residency requirement can only be reasonably intereted to require residency for at least one year before the election within the geographical boundaries of an election district as it is drawn at the time of election. ^[25]

In In re Curda, ^[26] the supreme court held that legal errors committed by a district judge did not amount to ethical violations because they were not willful or part of a pattern of judicial misconduct. ^[27] Judge Curda imprisoned a state's witness at a criminal hearing because she showed up drunk on the day she was scheduled to testify. ^[28] Judge Curda reasoned that it was the only way to secure her protection, her children's protection, and her testimony. ^[29] The Judicial Conduct Committee investigated Judge Curda's action and recommended that he be given a private repri-[*pg 83] mand by the supreme court. ^[30] Reviewing the alleged judicial conduct de novo and by a standard of clear and convincing evidence, ^[31] the supreme court declined to reprimand Judge Curda. ^[32] The supreme court concluded that although Judge Curda had committed legal errors by depriving the witness of fundamental due process rights, ^[33] the errors did not amount to ethical violations because they were not willful or part of a pattern of misconduct. ^[34]

In Lakosh v. Alaska Department of Environmental Conservation, ^[35] the supreme court declared an oil-spill contingency plan regulation invalid as contrary to the enabling statute. ^[36] The Oil Pollution Control Act, as modified by the legislature following the Exxon Valdez oil spill, required persons involved in oil-related activities to obtain approval from the Department of Environmental Conservation (DEC) for oil spill contingency plans. ^[37] These plans required such persons to "provide for use . . . of the best available technology that was available at the time the contingency plan was submitted or renewed." ^[38] The DEC adopted a three-tiered approach for determining if a contingency plan provided for the use of the "best available" technology. ^[39] On plaintiff's motion for declaratory judgment that the regulation was invalid, the supreme court found that, for technologies covered in the first two tiers of the DEC's approach, compliance with applicable standards essentially served as a proxy for the best available technology determination. ^[40] The court found that the DEC's approach defied the plain meaning of the term "best" and that the legislative history showed that the legislature intended best available technology to be an additional requirement beyond meeting certain standards. ^[41] Because the DEC's definition did not include any "winnowing" process, the court reversed the superior court and declared the DEC regulation to be invalid. ^[42]

[*pg 84]

In Matanuska Electric Ass'n v. Chugach Electric Ass'n, ^[43] the supreme court held that the Regulatory Commission of Alaska's order compelling the Chugach Electric Association to refund miscalculated payments ^[44] was in fact retroactive ratemaking by a utility, which is prohibited in Alaska. ^[45] In 1997, plaintiff and Chugach noticed that the estimate Chugach used to calculate its surcharge was substantially higher than the actual amount. ^[46] Chugach refused to refund the overcharged amount, relying on Alaska law that prohibits retroactive ratemaking. ^[47] In administrative proceedings, the Regulatory Commission ordered...