text:
    Jeff GRAHAM, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee.
    Supreme Court No. S-16905
    Supreme Court of Alaska.
    August 9, 2019
    Jeffrey J. Jarvi, Anchorage, for Appellant.
    Samuel C. Severin, Assistant Municipal Attorney, and Rebecca A. Windt-Pearson, Municipal Attorney, Anchorage, for Appellee.
    Before: Bolger, Chief Justice, Winfree, Stowers, Maassen, and Carney, Justices.
   STOWERS, Justice.

I. INTRODUCTION

Jeff Graham prevailed in a civil suit against the Municipality of Anchorage for breach of contract and breach of the implied covenant of good faith and fair dealing. He was awarded partial attorney's fees under Alaska Civil Rule 82(b)(1). Graham argues that he should have instead been awarded full fees and costs under his union's collective bargaining agreement with the Municipality. Because the fee recovery provision in the agreement is not applicable to Graham's case, we affirm the superior court's order denying Graham's motion for full attorney's fees and costs.

II. FACTS AND PROCEEDINGS

Jeff Graham is employed as a firefighter/EMT by the Anchorage Fire Department (AFD). He has worked for AFD since 1995 and has held his current position since 2003. After taking AFD's engineer promotional exam in 2010, Graham wrote a letter to the AFD fire chief criticizing the subjective nature of the test. In 2012 Graham failed the interview portion of the engineer exam. He subsequently filed a complaint with the Alaska State Commission for Human Rights, alleging discrimination on the basis of his race (Korean) and age (48). He also petitioned his union, the International Association of Firefighters Local 1264 (the Union), to file a grievance against the Municipality of Anchorage on his behalf, under the Union's Collective Bargaining Agreement (CBA) with the Municipality.

The Commission investigated Graham's discrimination claim but officially closed his case in September 2013, as the investigation did not find substantial evidence to support his allegations. Similarly, the Union investigated "the facts and circumstances surrounding [Graham's] performance on the engineer test," but it declined to file a grievance against the Municipality to challenge Graham's exam results. In June 2012 the Union's counsel informed Graham: "You have exhausted your contractual remedies under Article VII of the [CBA]. You are free, at your own cost, to retain counsel and seek any other remedies to which you believe you may be entitled."

In February 2015 Graham filed suit against the Municipality, alleging breach of contract, breach of the implied covenant of good faith and fair dealing, and discrimination, among other legal theories. The case proceeded to trial, and in August 2017 a jury returned a verdict that the Municipality caused harm to Graham "by violating the express terms of the [CBA]" and "by violating the implied promise of good faith and fair dealing in the [CBA]." The jury also found that Graham's complaints about how the 2012 engineer exam was structured "were a motivating factor in him failing the oral board." Graham was awarded $667,000 in damages for lost wages and benefits, increased income taxes, and past emotional distress.

In October 2017 Graham moved for an award of full attorney's fees of $258,960.31 and full costs of $38,962.45 under section 7.4.1 of the CBA. Section 7.4.1 provides that "[i]n the event the prevailing party must seek enforcement in court of the arbitrator's decision, the expenses of such efforts shall be borne by the losing party." Graham also presented two alternative theories for recovery: enhanced attorney's fees under Alaska Civil Rule 82(b)(3) or partial attorney's fees under Civil Rule 82(b)(1).

In November 2017 the superior court awarded Graham $71,667 in partial fees under Civil Rule 82(b)(1) and $15,616.06 in partial costs under Alaska Civil Rule 79(f). The court denied his theory of recovery under section 7.4.1 of the CBA, finding that a "[p]lain reading of the CBA allows full fees only to enforce an arbitrator's decision. Implicitly there has already been a fully contested hearing. The full fees would only be for the enforcement action not the fully contested hearing." (Emphasis in original.) The court also denied Graham's request for enhanced fees under Rule 82(b)(3).

Graham appeals the superior court's denial of his full attorney's fees and costs under section 7.4.1 of the CBA.

III. STANDARD OF REVIEW

"We review awards of attorney's fees for abuse of discretion," but "[i]nterpretation of an attorney's fees clause in a contract is ... a question of law." We apply "our independent judgment in making such an interpretation."

IV. DISCUSSION

A. The Superior Court Did Not Err By Denying Graham's Motion For Full Attorney's Fees And Costs Under Section 7.4.1 Of The CBA.

Graham argues that the superior court's interpretation of section 7.4.1 of the CBA was "erroneously strict and narrow" and that we should broadly construe section 7.4.1 to encourage efficient litigation and to "give relief to employees who must enforce CBA rights in court after [the Municipality] and the [U]nion deny arbitration." In contrast, the Municipality argues that the plain language of section 7.4.1 "only provides recovery of attorney's fees to the Municipality or [the Union] in the event that an arbitration agreement needs to be enforced." Because Graham is not a party to the CBA and neither party is seeking to enforce an arbitration agreement, the Municipality argues that section 7.4.1 is not applicable to this case at all. We agree.

1. Section 7.4.1 of the CBA applies only to enforcement of an arbitration decision between the Municipality and the Union.

The goal of contract interpretation "is to 'give effect to the reasonable expectations of the parties.' " We determine "the parties' reasonable intentions by looking 'to the language of the disputed provision and other provisions, relevant extrinsic evidence, and case law interpreting similar provisions.' " Furthermore, "interpretation of a contract term does not take place in a vacuum, but rather requires consideration of the provision and agreement as a whole."

a. Language of the disputed provision and other provisions

Graham argues that "a contract provision allowing a prevailing party to recover its reasonable attorney's fees trump[s] Civil Rule 82 's provision for partial fees." The Municipality does not dispute this legal concept but argues that the plain language of section 7.4.1 is unambiguous and that it is simply inapplicable to Graham's case. Whether the language of section 7.4.1 is ambiguous depends on whether "the disputed terms are reasonably subject to differing interpretation after viewing the contract as a whole and the extrinsic evidence surrounding the disputed terms."

Section 7.4.1 of the CBA provides in full: "In the event the prevailing party must seek enforcement in court of the arbitrator's decision, the expenses of such efforts shall be borne by the losing party." As the superior court found, the plain language of section 7.4.1 indicates that it applies only to recovery of attorney's fees and costs for enforcement of an arbitration decision. It is undisputed that an arbitrator was never involved in Graham's case and that an arbitrator's decision was never made. This provision is therefore inapplicable to Graham's case.

The Municipality argues that the overall structure of Article 7 of the CBA also supports this conclusion. Article 7 outlines a three-step grievance procedure for a claim by the Municipality or the Union. The first step is for either party to file a grievance, which is "defined as a claim by the Union or the Municipality, alleging a violation of th[e] Agreement." If a grievance has been filed but it cannot be resolved internally between the Municipality and the Union, then either party may opt to submit the grievance to an arbitrator. Section 7.4 provides that in such a scenario, the "decision of the arbitrator shall be final and binding on all parties," and "[t]he losing party shall pay all of the expenses and fees of the arbitrator." Section 7.4.1 is a subsection of 7.4 - it provides additional recovery of fees if "the prevailing party must seek enforcement ... of the arbitrator's decision." Section 7.4.1 is only triggered after a party pursued the full three-step grievance procedure, an arbitration occurred, the arbitrator issued a decision, and the losing party did not abide by the arbitrator's decision. None of these steps occurred in Graham's case.

Interpretation of section 7.4.1 also "requires consideration of the ... agreement as a whole." As the Municipality points out, Graham is not a party to the CBA. The CBA is an agreement between the Union and the Municipality, and it recognizes the Union "as the sole and exclusive bargaining agent for the purpose of establishing ... conditions of employment." Article 7 provides the procedure for the Union and the Municipality to resolve a grievance between the two parties; it does not provide a comparable process for an individual employee to pursue a grievance against the Municipality independent of the Union. Although the Union may bring a grievance on behalf of an individual employee, that did not occur in this case. The grievance procedure in Article 7 was therefore never invoked and section 7.4.1 was never triggered. The overall structure of the CBA and Article 7 make clear that section 7.4.1 was not intended to apply to recovery of fees and costs for litigation brought by an individual employee.

b. Extrinsic evidence

To interpret a contract, we also consider relevant extrinsic evidence such as the "language and conduct of the parties, the objects sought to be accomplished[,] and the surrounding circumstances at the time the contract was negotiated." If there is no extrinsic evidence, "our analysis of this issue must rely on the language of the contract."

Graham briefly asserts that the Union "gave him a right-to-sue letter and authorized him to enforce the rights in the [CBA]." But Graham's characterization of this letter is not accurate. The Union's June 2012 letter to Graham stated explicitly that Graham had exhausted his contractual remedies under Article 7 of the CBA and any further action he took against the Municipality would be independent of the Union and at his own cost. The Union did not assign him the rights to pursue this claim under the CBA, as Graham posits.

Accordingly, Graham did not submit extrinsic evidence that supports an interpretation of section 7.4.1 contrary to its plain meaning. And as discussed above, section 7.4.1 is unambiguous - it is not "reasonably susceptible to both asserted meanings."

c. Case law interpreting similar provisions

We have not previously been asked to consider a fee-recovery provision in this exact context. But our case law interpreting grievance procedures in similar collective bargaining agreements supports our conclusion that section 7.4.1 is not applicable to Graham's case. Collective bargaining agreements are contracts between a union and an employer; employees typically do not have the power to pursue the grievance procedures provided in these agreements independent of their union. Graham has not cited to any cases that would support a different conclusion.

d. Conclusion

We have considered the plain language of section 7.4.1, the overall structure of Article 7, the CBA as a whole, and case law interpreting similar agreements; it is clear that section 7.4.1 is not applicable to Graham's case. The superior court did not err by denying Graham's motion for recovery of full attorney's fees and costs under the CBA.

2. Section 7.4.1 of the CBA cannot be construed so broadly as to encompass enforcement of CBA rights in court by individual employees.

Graham also argues that section 7.4.1 should be broadly construed to "give relief to employees who must enforce CBA rights in court." He asserts that "[the Municipality] takes dues out of each paycheck of AFD employees for ... the efficient litigation of valid employment grievances in arbitration" and that he was denied access to the efficient arbitration procedures provided in the CBA. He contends that the attorney's fees clause in the CBA should therefore be broadly construed to "encourage [the Municipality] to comply with its legal duties ... [and] to efficiently arbitrate employment claims out of court."

Graham particularly focuses on this court's precedent of "constru[ing] contractual attorney's fees provisions broadly, and in a way that encourages efficient litigation." He also argues that Alaska has a " 'strong public policy in favor of arbitration,' [and that] we apply a presumption in favor of arbitrability." While these principles are valid, they are not relevant to his case. Our case law does not support prioritizing a broad construction of contractual attorney's fees provisions to the exclusion of all other rules of contract interpretation, such as the plain meaning rule. And Graham was not able to access the efficient arbitration procedures provided in the CBA because the Union declined to pursue a grievance on his behalf. We are not persuaded that we should ignore the plain and unambiguous language of the CBA; section 7.4.1 cannot be construed so broadly as to encompass the recovery of fees and costs for litigation brought by an individual employee.

V. CONCLUSION

We AFFIRM the superior court's order denying Graham's motion for full attorney's fees and costs under section 7.4.1 of the CBA.

      The purpose of the CBA is "the promotion of harmonious relations between the Municipality and the Union, the establishment of an equitable and peaceful procedure for the resolution of differences, the establishment of rates of pay, hours of work, and other terms and conditions of employment."

      Graham does not dispute that Civil Rule 82(b)(1) was an appropriate alternative theory of recovery, nor does he dispute the superior court's calculation of fees under this rule. He argues solely that the court should have awarded full fees under section 7.4.1 of the CBA. He no longer argues for enhanced fees as an alternative theory of recovery.

      Kollander v. Kollander , 400 P.3d 91, 95 (Alaska 2017) (quoting Roderer v. Dash , 233 P.3d 1101, 1106 (Alaska 2010) ).

      Johnson v. Olympic Liquidating Tr. , 953 P.2d 494, 497 (Alaska 1998).

      Id. ; see also Larsen v. Municipality of Anchorage , 993 P.2d 428, 431 (Alaska 1999) ("Contract interpretation presents a question of law that we review de novo.").

      Stepanov v. Homer Elec. Ass'n ., 814 P.2d 731, 734 (Alaska 1991) (quoting Mitford v. de Lasala , 666 P.2d 1000, 1005 (Alaska 1983) ).

      Flint Hills Res. Alaska, LLC v. Williams Alaska Petroleum, Inc. , 377 P.3d 959, 975 (Alaska 2016) (quoting W. Pioneer, Inc. v. Harbor Enters., Inc. , 818 P.2d 654, 656 (Alaska 1991) ).

      Id. (quoting Mahan v. Mahan , 347 P.3d 91, 95 (Alaska 2015) ); see also Schaub v. K & L Distribs., Inc. , 115 P.3d 555, 563 (Alaska 2005) ("When interpreting collective bargaining agreements, courts 'will if possible give effect to all parts of the instrument and an interpretation which gives a reasonable meaning to all its provisions will be preferred to one which leaves a portion of the writing useless or inexplicable.' " (quoting 20 Samuel Williston & Richard A. Lord, A Treatise on the Law of Contracts § 55:20 (4th ed. 2001) )).

      Tufco, Inc. v. Pac. Envtl. Corp. , 113 P.3d 668, 674 (Alaska 2005).

      N. Pac. Processors, Inc. v. City & Borough of Yakutat, Alaska , 113 P.3d 575, 579 (Alaska 2005) (quoting Wessells v. State Dep't of Highways , 562 P.2d 1042, 1046 (Alaska 1977) ).

      See Marathon Oil Co. v. ARCO Alaska, Inc. , 972 P.2d 595, 604 (Alaska 1999) (concluding that a provision's location in a contract is relevant to its interpretation).

      Flint Hills Res. Alaska, LLC , 377 P.3d at 975 (quoting Mahan , 347 P.3d at 95 ).

      Section 7.7 does provide an "Employees' Bill of Rights" to ensure that individual rights of employees are not violated, but it does not provide a process for an individual employee to pursue a grievance against the Municipality.

      Peterson v. Wirum , 625 P.2d 866, 870 n.7 (Alaska 1981) (quoting Pepsi Cola Bottling Co. v. N.H. Ins. Co. , 407 P.2d 1009, 1013 (Alaska 1965) ).

      Marathon Oil Co. , 972 P.2d at 604.

      Larsen v. Municipality of Anchorage , 993 P.2d 428, 431 (Alaska 1999) (quoting Johnson v. Schaub , 867 P.2d 812, 818 (Alaska 1994) ).

      Collective-Bargaining Agreement , Black's Law Dictionary (10th ed. 2014) ("A contract between an employer and a labor union regulating employment conditions, wages, benefits, and grievances.").

      See Bernard v. Alaska Airlines, Inc. , 367 P.3d 1156, 1163-64 (Alaska 2016) (concluding that "[t]he [collective bargaining] agreement thus emphasizes repeatedly that ... only appeals to arbitration taken by the union ... are contemplated," and that "[t]here is nothing in the agreement's plain language that would lead an employee to believe that the Board was authorized to consider any appeals other than those that were 'properly submitted to it' by the union"); Schaub v. K & L Distribs., Inc. , 115 P.3d 555, 561-62 (Alaska 2005) (concluding that collective bargaining agreement "clearly require[d] union participation in steps two and three [of the grievance procedure]" and that union had "sole power" under agreement to pursue full grievance procedure); Casey v. City of Fairbanks , 670 P.2d 1133, 1137, 1139 (Alaska 1983) (finding "nothing on the face of the [collective bargaining agreement] that requires or even allows an employee to unilaterally file a written grievance with the Union and the City," and that employee "cannot simply avail himself of the [collective bargaining agreement's] arbitration procedure without the Union's involvement").

      O'Connell v. Will , 263 P.3d 41, 46 (Alaska 2011).

      Ahtna, Inc. v. Ebasco Constructors, Inc. , 894 P.2d 657, 662 (Alaska 1995) (quoting Univ. of Alaska v. Modern Constr., Inc. , 522 P.2d 1132, 1138 (Alaska 1974) ).

      See O'Connell , 263 P.3d at 46-47 (reiterating our previous holdings that "where the parties intend it, contractual attorney's fees clauses must be construed as calling for fee shifting at all [court] levels," and concluding that such "contractual attorney's fees clauses ... [also] provide for attorney's fees incurred during post-judgment enforcement proceedings"; but noting that a broad construction was appropriate because "the plain language of the contract [at issue] indicates that the parties intended to provide for all reasonable attorney's fees").


source: Caselaw Access Project

author: CARNEY, Justice.

license: Public Domain

text:
    Matthew SCHWIER, Appellant, v. Audrey SCHWIER, n/k/a Audrey Magee-Davey, Appellee.
    Supreme Court No. S-17138
    Supreme Court of Alaska.
    August 9, 2019
    Darryl L. Jones, Law Office of Darryl L. Jones, Palmer, for Appellant.
    No appearance by Appellee Audrey Schwier.
    Before: Bolger, Chief Justice, Winfree, Stowers, Maassen, and Carney, Justices.
   CARNEY, Justice.

I. INTRODUCTION

A father appeals the superior court's denial of his motion to modify child support. He argues that his house arrest while awaiting trial on federal charges should be considered involuntary unemployment for purposes of calculating child support. He also argues that remand is necessary for an evidentiary hearing and for the superior court to enter findings of fact and conclusions of law. Because we conclude that the father made a prima facie showing of a substantial change in circumstances that would entitle him to an evidentiary hearing, we remand to the superior court to conduct an evidentiary hearing.

II. FACTS AND PROCEEDINGS

A. Facts

Matthew Schwier and Audrey Magee-Davey (formerly Schwier) were married in 2004 in Arizona. They have two children, born in 2006 and 2010. In February 2016 the superior court granted their petition for dissolution of marriage and approved their parenting agreement, which provided for shared legal custody and alternating weeks of physical custody. Audrey was ordered to pay child support based on the guidelines in Alaska Civil Rule 90.3, which governs child support calculations. In January 2017 Audrey moved to modify custody and support, and in April 2017 the court partially granted her motion on the record, awarding her sole legal custody but leaving in place the existing physical custody arrangement.

B. Proceedings

1. Child in Need of Aid case, federal criminal case, and interim support order

Shortly after the court issued its April 2017 custody order, the Office of Children's Services (OCS) removed the children from Matthew's home and filed emergency Child in Need of Aid (CINA) petitions. The court granted temporary custody to OCS, which placed the children with Audrey.

Shortly after the CINA proceedings began, Audrey moved to stay her child support obligation because the OCS placement had given her primary physical custody. In response Matthew filed an income affidavit along with recent pay stubs and his 2016 tax return. The court granted Audrey's motion to stay her child support payments while the CINA cases were pending and ordered the parties to file updated income affidavits, though it does not appear that either parent did. In late August 2017 the court issued an interim child support order requiring Matthew to pay $2,422.05 per month. The court also ordered Audrey's January 2017 motion to modify custody and support to be held in abeyance until the CINA cases either addressed custody or were dismissed.

Apparently around the same time as the CINA proceedings began, a federal grand jury began investigating allegations that Matthew had committed federal crimes. The grand jury returned an indictment in September, charging him with a number of federal offenses. By at least September 2017 the federal court had ordered Matthew's house arrest as a pretrial release condition. Shortly afterward Matthew resigned from his job as a law enforcement officer for the Chickaloon Tribal Police Department.

2. Matthew's motions to modify support

a. November 2017 motion

In November 2017 Matthew moved to modify interim child support, arguing that his "house arrest pursuant to federal charges" had resulted in a "substantial reduction" in his income. He did not file a new income affidavit with his motion, attaching only a printout of an updated child support estimate. He stated that because he was not working, his only income was the $5,722 he expected to net from his rental properties that year.

Audrey partially opposed Matthew's motion to modify support, pointing out that he had not provided the required tax returns or other documents to support his claimed rental income. In late November Matthew replied that he had "fully explained and documented" his rental income; he attached an affidavit itemizing expenses on his rental properties as well as mortgage statements and invoices for those expenses.

In December the superior court denied Matthew's motion without prejudice based on the lack of documentation supporting modification. The court found that Matthew was "relying heavily [on] predictions of business loss" that the court considered "speculative." The court instead based its child support calculation on Matthew's May 2017 income affidavit and its accompanying documentation. The court stated that his failure to file an updated affidavit left it without "sufficient evidence to justify modification" or to "make informed calculations" of his income and support obligation. It also noted that Matthew had not addressed whether he was voluntarily or unreasonably unemployed or whether his loss of income was temporary. The court thus concluded that Matthew was "merely temporarily unemployed or underemployed while ... under house arrest" and that such temporary unemployment did not justify reducing child support.

In early January 2018 Matthew moved for reconsideration of the court's denial of his motion to modify child support. Audrey opposed, arguing that Matthew's reconsideration motion had confirmed the court's finding that he had failed to file an updated income affidavit and that his unemployment should be considered temporary based on his own stated expectation that he would be acquitted on the federal charges. The court denied reconsideration in late January.

In February 2018 the superior court granted Audrey sole legal and primary physical custody of the children and permitted her to move with them to Arizona. The court also issued a final child support order, apparently based on Matthew's May 2017 income affidavit, finding his adjusted annual income to be roughly $60,500 and ordering him to pay roughly $2,420 per month in child support.

b. May 2018 motion

In May 2018 Matthew again moved to modify child support. He argued that his house arrest was equivalent to incarceration; that "incarceration alone, regardless of length or permanency," was a substantial change in circumstances warranting modification; and that the court should consider him involuntarily unemployed and thus not liable for the full amount of child support ordered regardless of the circumstances underlying his house arrest. He filed an updated income affidavit along with mortgage statements from his rental properties and 2017 tax returns. The new affidavit showed an adjusted annual income of $12,978.20 from his rental properties and calculated a monthly child support payment of about $292.

Audrey opposed, arguing that there had been no change in circumstances since the February support order, as Matthew had already been under house arrest when the court issued that order. She also argued that he was not involuntarily unemployed because he could petition the federal court to amend his release conditions. Matthew replied, arguing that the federal court was unlikely to modify the "stringent bail conditions" it had imposed and that he could not reasonably sell or liquidate any more assets to meet his child support obligations.

In June 2018 the superior court denied Matthew's motion to modify support without a hearing, stating only that "[b]ased on the pleadings of the parties, and this court being otherwise fully advised," it would deny the motion to modify.

Matthew appeals; Audrey does not participate in the appeal.

III. STANDARD OF REVIEW

In general, "[w]e review an award of child support for abuse of discretion." But because "[w]e use our independent judgment to decide whether it was error not to hold an evidentiary hearing," we review de novo the question of "whether a moving party has made a prima facie showing sufficient to justify a custody or child support modification hearing." "[W]e 'will affirm a denial of a modification motion without a hearing if, in our independent judgment, ... the allegations are so general or conclusory ... as to create no genuine issue of material fact requiring a hearing.' "

IV. DISCUSSION

Alaska Civil Rule 90.3 provides for modification of a child support award upon a showing of a material change of circumstances. A material change of circumstances is presumed if the amount as calculated under the rule differs by at least 15% from the existing amount of support ordered. A court may deny a motion to modify without a hearing if the facts alleged in the motion would not justify modification even if proved or if the allegations present no genuine issue of material fact that would require a hearing. But if the party seeking modification makes a prima facie showing that a change of circumstances has occurred, a hearing is required.

Rule 90.3 also requires each parent in a child support proceeding to "file a statement under oath which states the parent's adjusted annual income and the components of this income"; a parent moving for modification must file this statement along with his or her initial motion to modify. The rule requires that the statement "be accompanied by documentation verifying the income."

Matthew argues that remand for a child support modification hearing is required because the superior court erred by denying his May 2018 motion to modify support "without comment and without findings of fact or conclusions of law." He argues that his motion presented sufficient evidence to establish a material change of circumstances. He contends that the affidavits and documentation he provided demonstrated that his bail conditions were tantamount to incarceration and were long-lasting enough to be more than temporary, and thus constituted involuntary unemployment for purposes of Rule 90.3.

We agree that Matthew's May 2018 motion established a prima facie case for a change of circumstances. His motion included an updated income affidavit as required, reporting an adjusted annual income of just under $12,980, far lower than the $50,995 adjusted annual income he had reported in May 2017. In an affidavit accompanying his reply to Audrey's opposition to his motion, he stated that his federal trial had been postponed to October 2018, much later than the March trial date that was scheduled when the court issued its February 2018 child support order. It also appears that Matthew provided the superior court with a copy of his federal conditions of release, which imposed a "24-hour-a-day lock-down at [his] residence" except for court appointments and medical necessities. Matthew also filed a partial transcript from his bail hearing, in which the federal court found that he would pose a threat to public safety if "released under any conditions," indicating that his house arrest would last at least until his trial.

Whether or not this evidence would have been sufficient to justify modifying child support, it is enough to establish a prima facie case of a change of circumstances and therefore was enough to entitle Matthew to a hearing. Taken together, the affidavits and supporting documentation indicated that his income had changed by more than 15% and that the house arrest conditions preventing him from working were likely to persist at least for some months. It was therefore error for the superior court to deny his motion without a hearing.

We note that generally a change of circumstances is measured against the date of the most recent child support order, and that in this case Matthew was already under house arrest when the court issued its February 2018 order. But where no prior order has considered the circumstances documented in the motion for modification, the court may examine those circumstances even if they existed at the time of the most recent order. The February 2018 order made no mention of Matthew's house arrest, apparently relying instead on his 2017 tax returns to calculate income. Nor did the court make any findings that Matthew was unemployed, either voluntarily or involuntarily. Rather, given its finding that Matthew's adjusted annual income was roughly $60,500, the court seemed to assume that he was still working as a law enforcement officer or would be able to find comparable employment. The court did consider Matthew's claim that his house arrest prevented him from working when it denied his motion to modify interim child support in December 2017. However, the court's rejection of this claim was based not on its merits but on a lack of documentation, and was without prejudice, meaning that Matthew could re-file for modification. Thus, no previous order had considered the merits of Matthew's motion. Furthermore, a change of circumstances did occur subsequent to the February 2018 order: Matthew's federal trial date was postponed, substantially extending the duration of his house arrest. This, coupled with the other documentation he provided, was sufficient to entitle him to a hearing.

Because the superior court's June 2018 order contained no findings on whether Matthew's house arrest was sufficiently restrictive to constitute involuntary unemployment, we express no opinion on the merits of this argument. But we remind the superior court that on remand it must make findings sufficient to support meaningful appellate review.

V. CONCLUSION

Matthew's May 2018 motion to modify child support presented a prima facie showing that a material change of circumstances had occurred. We therefore REVERSE the superior court's denial of the May 2018 motion to modify child support and REMAND for an evidentiary hearing to determine whether modification is warranted.

      See Alaska R. Civ. P. 90.3(b) (providing guidelines for child support awards when parents share physical custody).

      See AS 47.10.142 (governing emergency custody); CINA Rule 6 (same). The petitions were apparently based upon sexual abuse allegations that OCS later determined were not substantiated.

      See AS 47.10.142 ; CINA Rule 6(b).

      Civil Rule 90.3(e)(1) requires parents to report income and deductions for child support purposes:
      [E]ach parent in a court proceeding at which child support is involved must file a statement under oath which states the parent's adjusted annual income and the components of this income as provided in subparagraph (a)(1). This statement must be filed with a party's initial pleading ..., motion to modify, and any response to a motion to modify. The statement must be accompanied by documentation verifying the income.

      See Alaska R. Civ. P. 90.3(e)(1) ; Alaska R. Civ. P. 90.3 cmt. VIII(A) ("Suitable documentation of earnings might include paystubs, employer statements, or copies of federal tax returns.").

      See Alaska R. Civ. P. 90.3(a)(4) (permitting court to award child support based on "potential income of a parent who voluntarily and unreasonably is unemployed or underemployed").

      See Reilly v. Northrop , 314 P.3d 1206, 1214 (Alaska 2013) ("[N]ormally we will not modify child support due to temporary conditions."); Richardson v. Kohlin , 175 P.3d 43, 48 (Alaska 2008) ("[P]arents going through what appear to be temporary periods of unemployment can be expected to maintain their support obligation by using assets[;] ... ordinarily support should not be modified for temporary reductions in income.").

      Geldermann v. Geldermann , 428 P.3d 477, 482 (Alaska 2018) (quoting Limeres v. Limeres , 320 P.3d 291, 295 (Alaska 2014) ).

      Limeres v. Limeres , 367 P.3d 683, 686 (Alaska 2016) (quoting Routh v. Andreassen , 19 P.3d 593, 595 (Alaska 2001) ).

      Id. (quoting Hill v. Bloom , 235 P.3d 215, 219 (Alaska 2010) ).

      Id. (alterations in original) (quoting Hill , 235 P.3d at 219 ).

      Alaska R. Civ. P. 90.3(h)(1).

      Id.

      See Limeres , 367 P.3d at 686.

      See Wilhour v. Wilhour , 308 P.3d 884, 888-89 (Alaska 2013) (holding that superior court erred by declining to hold hearing on support modification motion because genuine issues of fact existed).

      Alaska R. Civ. P. 90.3(e)(1).

      Id.

      See Alaska R. Civ. P. 90.3(h)(1).

      See Alaska R. Civ. P. 90.3(a)(4).

      See Burrell v. Burrell , 696 P.2d 157, 161 (Alaska 1984) ("[A] modification of a [child] support order may be obtained only where there has been a material and substantial change in circumstances occurring subsequent to the original order." (second alteration in original) (quoting Curley v. Curley , 588 P.2d 289, 291 (Alaska 1979) )).

      See Richardson v. Kohlin , 175 P.3d 43, 47 (Alaska 2008) (noting that change in circumstances need not occur after earlier order so long as "no prior order evaluated the circumstances presented in the [subsequent] motion for modification").

      See id. at 48 ("Sufficient factual findings are required for imputing income or declining to impute income."); Olmstead v. Ziegler , 42 P.3d 1102, 1107 (Alaska 2002) ("The trial court is required to enter sufficiently detailed findings of fact to allow for meaningful appellate review.").


text:
    FANTASIES ON 5TH AVENUE, LLC, Appellant, v. State of Alaska, ALCOHOLIC BEVERAGE CONTROL BOARD, Appellee.
    Supreme Court No. S-16981
    Supreme Court of Alaska.
    August 9, 2019
    Brian Stibitz, Reeves Amodio LLC, Anchorage, for Appellant.
    Harriet D. Milks, Assistant Attorney General, and Jahna Lindemuth, Attorney General, Juneau, for Appellee.
    Before: Bolger, Chief Justice, Winfree, Stowers, Maassen, and Carney, Justices.
   CARNEY, Justice.

I. INTRODUCTION

After an Anchorage strip club applied to have its liquor license renewed the Alcohol and Beverage Control Board received multiple objections to the renewal. Former employees, the Department of Labor, and the Municipality of Anchorage each alleged wage law violations, untrustworthy management, and unsafe policies. After three hearings before the Board and one before an administrative law judge, the Board denied renewal because it was not in the public interest. The club appealed to the superior court, which affirmed the Board's decision. The club now appeals to us, arguing it was unreasonable to find that renewal was not in the public interest and that the club was denied due process in the administrative proceeding. We affirm the superior court's decision to uphold the Board's determination.

II. FACTS AND PROCEEDINGS

A. Facts

1. The Club's Management

Fantasies on 5th Avenue, LLC is a "strip club business" operating under various names since 1989. For most of the time between 1989 and 2013 Kathy Hartman owned the club. In July 2013 Hartman transferred 100% ownership of the club to her son Travis Gravelle. This transfer occurred approximately one year after a federal judgment was entered against Hartman in a wage and hour lawsuit over the club's claim that its dancers were "independent contractors." Gravelle remains the sole owner of Fantasies.

Gravelle testified that he received no income from his ownership, knew nothing about the business's operation, had no control over its finances or any of its bank accounts until after the start of the administrative proceedings regarding the license renewal, and was only physically present in the club a few times in the past several years. A former employee testified that Gravelle was not allowed to drink at the club or even be on the premises.

Despite Gravelle's ownership, evidence showed that Fantasies has been run by Hartman's boyfriend, Eugene Greaves. Greaves referred to himself as the general manager of Fantasies, but testified that he received no income from the position. As manager, Greaves classified the DJs, janitors, security, and other workers as contractors rather than employees, denying them employee benefits. He also required dancers to sign agreements to be tenants of the club and pay hourly rent to use the facilities for dancing.

Fantasies paid no wages to its dancers; their income came solely from tips. Moreover, they were required to pay rent to Fantasies at the end of each shift from the tips they had received. If dancers did not make enough to pay rent, they were required to pay the remainder from the next shift's tips in addition to paying that next shift's rent.

Objections to the club's license renewal included allegations about unsafe and illegal practices at the club including that Fantasies did not allow workers to make 911 emergency calls from the club. The Board noted two such incidents: no calls were made when a dancer fell on her head from six feet above the floor or when an intoxicated customer passed out and suffered seizures. Another complaint noted that Fantasies' contract with its manager provided a "bonus" when the club made more than $2,000 in one night, apparently violating the licensing statute which states that "[a] person other than a licensee may not have a direct or indirect financial interest in the business for which a license is issued."

2. The Current Liquor License

From March 2014 through the denial of its liquor license in July 2016, Fantasies held liquor license number 1078. Gravelle was Fantasies' sole owner when it obtained the license. Despite Gravelle's ownership, Greaves worked with the Board to obtain the license transfer. The Board staff member who interacted with Greaves testified that she had not even heard Gravelle's voice until the Board's February 2016 meeting. Greaves had obtained a power of attorney from Gravelle and signed all the necessary paperwork on Gravelle's behalf. The Board staff member testified that this "raised red flags" and that she had never seen that done in her five years of processing applications.

In early November 2015 the Department of Labor and Workforce Development's Wage and Hour Administration (DOL) notified Fantasies of its intent to conduct a wage audit of the club for the period between December 2013 and November 2015. The wage investigation was ongoing when Fantasies applied to renew its liquor license.

B. Proceedings

In November 2015 Fantasies applied to renew its liquor license. Board staff noticed an irregularity in the application and contacted Gravelle for clarification. Although Gravelle had signed the form, affirming that he had "examined this application ... and it [was] true, correct, and complete," he responded that a friend had filled out the form on his behalf while he was out of town. Board staff considered his answer to be "a huge red flag" because the applicable statutes and regulations require the license owner to be personally responsible for its use, and because there had been previous cases with other licensees violating AS 04.11.450, prohibiting non-licensees from having a financial interest in the business.

After more thoroughly examining Fantasies' application, Board staff grew "very concerned about prohibited financial interest" and decided it was necessary for the application to go before the Board. The Board scheduled a hearing in February 2016 to consider the license renewal application. Prior to the hearing the Board received objections from DOL, the Municipality of Anchorage, and four former Fantasies workers.

DOL objected based on its investigation, which had revealed that Fantasies' dancers should have been classified as employees and that "thirty or more workers did not receive minimum wage, or any wage, to which they were entitled." The Municipality objected to renewing the license until the wage and hour violations were resolved. And four former workers filed objections alleging that (1) non-licensees had financial interests, (2) wage and hour laws continued to be broken, and (3) renewal was not in the best interest of the public. At the hearing the DOL investigator, the Municipality's attorney, and Fantasies' attorney testified. Because DOL's investigation had not been completed, the Board deferred its decision until its next scheduled meeting in April.

About a week after the February Board hearing, Fantasies' lawyer sent DOL a letter asking it to stop its investigation "or Fantasies [would] take appropriate legal action against [DOL] and [the assigned investigator] personally." As a result, the DOL staff member temporarily halted the investigation until directed to continue despite Fantasies' threatened action.

Before the April meeting DOL asked the Board to "withhold any transfer of the liquor license for [Gravelle] ... pending resolution of unpaid wages." DOL's continuing investigation was still "in the process of auditing records to determine wages due to workers" and "estimate[d] a minimum amount of unpaid wages at $500,000 plus liquidated damages, for failure to pay minimum wage." The Board nevertheless held a continued hearing in April. A former Fantasies dancer testified on behalf of herself and three other former dancers, each of whom had filed written objections with the Board. The Board once again deferred its decision until its next scheduled meeting at the request of the Municipality, which had not yet held a public hearing on the protest.

In May DOL concluded its investigation into Fantasies' wage and hour violations. It found that: workers' services were misclassified as contract labor, no records of hours were kept, dancers were not paid at all and instead forced to pay rent as tenants, managers failed to maintain daily and weekly records of hours worked, and the club either did not maintain or destroyed certain records related to the hiring and firing of workers. DOL acknowledged that it had not yet calculated the amount of money Fantasies owed as a result of the violations.

The Board addressed Fantasies' license renewal for a third and final time at its July meeting. Based on the objections and testimony from all three hearings, the Board determined renewal of Fantasies' license would not be in the public interest. The Board informed Fantasies of its right to a hearing as provided by AS 44.62.330 - 630.

Fantasies filed a Notice of Defense and Request for a Hearing in August. It disputed the Board's findings that renewal was not in the public's best interests, that non-licensees had direct or indirect financial interests in the license, and that it had committed wage and hour violations. The administrative hearing took place over three days in 2016 before an administrative law judge (ALJ). A former dancer, the DOL investigator, Greaves, Hartman, Gravelle, and two Board staff members testified.

Fantasies' lawyer Brian Stibitz cross-examined the former dancer about whether she had been given the choice to work as an employee or an independent contractor. After she repeatedly denied having a choice, he directed her to read a section of the "Entertainer Lease" she had signed that stated she would be liable for liquidated damages and attorney's fees if she asserted in any court action that her relationship with Fantasies was anything other than that of a landlord and tenant. After she read the section he warned her that it applied to the questions he was about to ask. The Board's lawyer objected to its relevance, leading to an extended colloquy between the court and counsel. The ALJ addressed the Board's concern that Stibitz was badgering the witness by noting that it, too, was "worr[ied] about the ... intimidating effect of ... waving [the document] in [the witness's] face." The ALJ ordered Stibitz to move on to a different topic.

Following three days of hearings, the ALJ affirmed the Board's decision denying the renewal. The ALJ issued her decision in November 2016, and the Board adopted it at its February 2017 meeting. The determination was based on:

[DOL]'s finding of ongoing wage-hour violations; public safety concerns related to suppression of 911 calls; Mr. Gravelle's complete lack of knowledge of or involvement in the business; Mr. Greaves's role in "running" the business and the license; an alleged undisclosed financial interest by Mr. Greaves and Ms. Hartman; and alleged undisclosed financial interests through management agreements.

Fantasies appealed to the superior court. The superior court upheld the Board's decision in January 2018, finding it had a rational basis for concluding that renewing Fantasies' license was not in the public interest.

Fantasies appeals, arguing that the superior court erred by affirming the Board's decision because the Board violated its right to due process and acted unreasonably by finding renewal would not be in the public interest. Because there is substantial evidence to support the Board's denial of the renewal application and there was no deprivation of Fantasies' right to due process, we affirm the superior court's decision upholding the Board's determination.

III. STANDARD OF REVIEW

"When the superior court acts as an intermediate appellate court, we independently review the merits of the underlying administrative decision. The specific form our independent review takes is de novo review: We adopt the rule of law that is most persuasive in light of precedent, reason, and policy."

When reviewing administrative decisions we use the "substantial evidence" test for questions of fact and the "reasonable basis" test for questions of law involving agency expertise. Review of the Board's factual findings is limited to whether there was substantial evidence in the record to support those findings. We do not "weigh the quality of the evidence relied upon by the [Board]; at issue for the purposes of our review is simply whether substantial evidence exists." "Substantial evidence is 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' "

The reasonable basis test applies to the Board's exercise of discretion in denying Fantasies' license renewal after determining it was not in the public's best interest under AS 04.11.330(a). When reviewing whether an administrative decision was reasonable we ask "whether there was a prejudicial abuse of discretion," which we will find "if the agency has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence."

We apply our independent judgment to questions of constitutional law, such as due process.

IV. DISCUSSION

Fantasies claims the Board unreasonably denied its liquor license renewal application as not in the public interest under AS 04.11.330(a)(1). Fantasies also claims it did not receive due process because it had no notice of the basis for denial, no opportunity to be heard, that AS 04.11.510 (the procedure for license renewal applications) violates due process on its face, and that the statutes and regulations applied are unconstitutionally vague.

A. The Board Did Not Abuse Its Discretion By Denying Fantasies' License Renewal Application.

Fantasies argues that the Board abused its discretion by relying on "[a]llegations of [l]abor [v]iolations," "Gravelle's [a]lleged [l]ack of [i]nvolvement [i]n [t]he [b]usiness," an "[e]xpired [m]anagement [a]greement," and "a policy of discouraging 911 calls," to determine that renewing Fantasies' license was not in the public interest. When reviewing administrative fact findings in quasi-judicial proceedings, we have "consistently adhered to the substantial evidence on the whole record test under AS 44.62.570(c)(2)." The Board did not abuse its discretion because there is substantial evidence supporting each of its findings.

Fantasies also argues that regardless of whether there was substantial supporting evidence, these findings are not listed among the factors the Board may consider when making a public interest finding under 3 Alaska Administrative Code (AAC) 304.180, and that the Board therefore erred by considering them. But the regulation authorizes the Board to make its decision based on any of the enumerated factors as well as any other factor deemed relevant to the public interest; it does not limit the Board to the listed factors. The Board did not abuse its discretion by denying Fantasies' license renewal as not in the public interest.

1. Substantial evidence supports the Board's findings.

The Board decided that renewing Fantasies' license was not in the public interest based on the following findings: (1) DOL determined that Fantasies misclassified dancers and other employees to evade wage and hour laws; (2) managers discouraged dancers from calling 911 during apparent medical emergencies; (3) Gravelle, the LLC's owner, had little, if any, meaningful knowledge about how the club was being operated; (4) Gravelle had no understanding of the statutory requirements for liquor license operation or how the license was being operated, and no apparent interest in how it was being operated; and (5) the club's management agreement gave the manager an illegal direct financial interest in the license. There is substantial evidence supporting each of these findings.

a. DOL determined wage and hour violations .

The record contains testimony and numerous letters demonstrating Fantasies' failure to comply with wage and hour laws. The documented violations included treating dancers as tenants required to pay rent to the club instead of receiving wages, not keeping adequate records of employee pay, having an operating agreement that seemed to have been "done after the fact" and back-dated, hindering DOL's investigation, forcing dancers to "work to pay off a debt for not showing up at work," and having employees work for free for the for-profit business. The DOL investigator testified that it is a "sign[ ] of labor trafficking, when somebody has to work to pay off a debt and not earn any money." In May 2016 DOL found Fantasies in violation of wage and hour laws; its finding provides substantial evidence in support of the Board's finding.

b. Fantasies discouraged dancers from calling 911 during medical emergencies .

A former dancer testified that Fantasies' dancers were not allowed to call 911 for apparent medical emergencies at the club. Greaves testified that the dancer's claim was an "asinine statement," but offered no evidence to refute it. While acknowledging that the evidence was somewhat limited, the ALJ cited the dancer's credible description of "two instances of being intimidated out of calling 911 when such a call would have been appropriate" and noted that Fantasies had not produced any witness with knowledge of the club's day-to-day operations to dispute her testimony. The Board's finding is supported by substantial evidence.

c. The owner lacked knowledge of club operations .

Gravelle is Fantasies' sole owner but plays no role in running the club. He testified that he had never run an LLC before, did not manage the business, did not know how much money Fantasies made, had no access to the business bank accounts prior to the denial of the license renewal, and did not know if Fantasies had any kind of management agreements with anyone. A former dancer testified that Gravelle had not even been allowed into the club during open hours more than a couple times over the past few years. There is substantial evidence to support the finding that Gravelle lacks knowledge of club operations legally required of a sole owner of an LLC operating a liquor license.

d. The owner lacked knowledge of legal requirements .

As a liquor license owner, Gravelle is required to understand the laws controlling its use. But Gravelle was not aware of the club's day-to-day operations and consequently had no means of knowing whether the club was in compliance with these laws. Gravelle testified to knowing nothing about the business's finances or tax returns, even though Fantasies' income and losses were attributed to Gravelle for tax purposes. Much of Fantasies' paperwork was not even signed by Gravelle, but by Greaves through the power of attorney that Gravelle had given him. Only Greaves had been involved in applying for Board renewal, further illustrating Gravelle's divorce from operating the license he owned. The Board staff member testified she had never met nor even heard Gravelle's voice until the first Board meeting in February 2016. There was no evidence that he had attempted to learn the laws or anything about the operation of the license. The finding that Gravelle had no understanding of the requirements for operating a liquor license is supported by substantial evidence.

e. A non-owner had a direct financial interest in the license.

The ALJ heard evidence that Fantasies had a number of managers over the preceding ten years. Some, but not all, of them had written management agreements with Fantasies. The Board found that the lack of paperwork relating to these managers left the Board unable to determine who was responsible for potential violations in operating Fantasies' license.

One of the two management agreements presented to the Board contained an incentive clause reading:

As an added Incentive for the Manager, where the daily gross revenue exceeds two thousand dollars, the Manager shall receive seventy per cent of that amount above two thousand dollars, and the Owner shall receive thirty per cent of that amount over two thousand dollars. This shall apply for each and every day over said amount.

Alaska Statute 04.11.450(a) mandates that "[a] person other than a licensee may not have a direct or indirect financial interest in the business for which a license is issued." Fantasies' agreement to pay its manager 70% of revenue exceeding $2,000 clearly gave the manager a "direct ... financial interest in the business for which [the] license is issued." This management agreement alone provides substantial evidence of a non-licensee having a direct financial interest in the license.

2. The evidence supports finding renewal is not in the public interest.

"An application requesting renewal of a license shall be denied if ... the [B]oard finds, after review of all relevant information, that renewal of the license would not be in the best interests of the public." We have held that other sections of the alcohol licensing statutes "authorize[ ] broad discretion in denial [of liquor licenses] for any reason found incompatible with the public interest." And the regulation implementing those statutes authorizes the Board, when deciding whether to renew a liquor license, to exercise its discretion to consider the applicant's past criminal acts involving "moral turpitude," violations of statutes or regulations governing alcoholic beverages, violations of another state's laws governing alcoholic beverages, and felonies committed in the preceding ten years. The regulation also allows the Board to consider whether the applicant is "untrustworthy, unfit to conduct a licensed business, or a potential source of harm to the public;" whether the applicant has permitted "sexual contact" on the licensed premises; and "all other factors the [B]oard in its discretion determines relevant to the public interest." Fantasies argues that because this regulation does not explicitly list the exact findings the Board made, its findings are not valid bases to deny renewal.

But Fantasies misunderstands the regulation. The factors the Board may consider "include " those listed in the statute, but the list is not exhaustive. And 3 AAC 304.180(a)(4) explicitly gives the Board even greater discretion by allowing it to consider "all other factors the [B]oard in its discretion determines relevant to the public interest." The findings on which the Board based its denial of Fantasies' renewal thus relate to factors it was authorized to consider in determining whether the renewal is in the public's best interest.

B. Fantasies Received Due Process.

Fantasies asserts four violations of due process. It challenges the process provided in the statutory renewal procedure, arguing that the club received no notice of the basis or opportunity to be heard, and that the specific license renewal process set out in AS 04.11.510 does not comply with due process. In addition Fantasies argues that AS 04.11.330(a)(1) and 3 AAC 304.180 - allowing denial of an application when a license would not be in the public's best interests - are unconstitutionally vague. The due process clauses of both the United States and Alaska Constitutions require "that adequate notice and a meaningful opportunity to be heard ... be afforded to liquor licensees before their licenses can be suspended." This due process requirement similarly applies when a license's renewal is denied. Fantasies received adequate notice and an opportunity to be heard in the three Board hearings, as well as through written notices of hearings, decisions, and opportunities to appeal, and in the subsequent hearing before the ALJ.

1. Fantasies received an opportunity to be heard.

Due process "merely require[s] the Board to hold a hearing before it [can] suspend a liquor license. ... [T]he hearing need not be elaborate, and the Board need not make written findings or even file a written opinion explaining its action so long as it reached its decision after hearing the appellant's presentation." Fantasies was entitled to "an opportunity to be heard in a meaningful, impartial administrative hearing in full compliance with the Administrative Procedures Act." Fantasies received three such opportunities before the Board and an additional opportunity before an ALJ.

Fantasies' attorney attended all three Board hearings and the ALJ hearing on the club's behalf, vigorously questioned witnesses, testified himself, and answered Board questions during two of the meetings. Fantasies claims it is entitled to more process despite the licensing statute's lack of requirement of any hearing: the Board "may review an application for the ... renewal ... of a license without affording the applicant notice or hearing ." The fact that Fantasies participated in multiple hearings more than satisfies due process.

2. Fantasies received notice of the basis for denial of the license renewal.

Fantasies argues that it had no notice of the reasons why its license renewal was denied either at the Board meetings or at the administrative hearing. Fantasies also argues that it was denied notice before the administrative hearing that the 2014 management agreement was a basis for non-renewal. Alaska Statute 04.11.510(b) allows the Board to review a renewal application "without affording the applicant notice or hearing." We have nonetheless held that due process requires both notice and a hearing before the Board can take an individual's property interest in a liquor license. But "[t]hese procedures 'need not be elaborate,' ... and due process 'merely require[s] the [ABC] Board to hold a hearing before it [can] suspend a liquor license." Fantasies received three separate hearings before the Board during which it was presented with the objections to its renewal and had an opportunity to refute them. The same written objections to the renewal were before the Board at each hearing. Fantasies received adequate notice through the Board hearings and written objections.

Fantasies claims that it was not until the administrative hearing that the Board raised the issue of the management agreement violating the license. The Board's written notice of denial following its vote to deny renewal must state "the reason for the denial in clear and concise language." The Board's notification letter to Fantasies stated that, "per AS 04.11.330(a)(1) ... the renewal of the license would not be in the best interest of the public." The letter also refers to the three Board hearings, during which former workers and DOL objected due to non-licensees having financial interests in the license.

Before a hearing with an ALJ, the Administrative Procedure Act requires that the hearing file include a statement of issues specifying the statute with which compliance must be shown and the "particular matters that have come to the attention of the initiating party and that would authorize a denial of the agency action sought." But there is no similar requirement for the Board, only for the party initiating the ALJ hearing, and the Act does not include such requirements for an agency's notice of denial. We have considered cases where the Board provided more detailed findings of fact explaining why it denied a license, specifying the precise reasons it found granting a license would not be in the public interest. But we have upheld the final decision in other contexts so long as "the subject matter remains the same[,] the public has been reasonably notified," and it is "a logical outgrowth of that notice."

Consideration of the management agreement is a logical outgrowth of DOL's initial concerns listed in its January 2016 letter to the Board. The agreement violated AS 04.11.450, prohibiting non-licensees from having direct or indirect financial interests in the licensed business. DOL's initial objection letter asserted that it "ha[d] ascertained credible information that ... a person(s) other than the licensee has direct and indirect financial interest in the business." The management agreement is evidence that directly supports DOL's objection.

Furthermore, Fantasies itself listed the issue of a prohibited financial interest in its request for the administrative hearing. Having itself noted that this issue was a basis for its appeal to the ALJ, Fantasies cannot now prevail on a claim that it had no notice that evidence relating to the issue of a prohibited financial interest would be raised at the administrative hearing.

3. The licensing laws are not unconstitutionally vague.

Both AS 04.11.330(a)(1) and 3 AAC 304.180(a)(4) authorize the Board to deny a license application if it finds that renewal is not in the public's best interests.

Fantasies argues that both the statute and the regulation are unconstitutionally vague. "[A] law may be unconstitutionally vague if the scope of exceptions and the scope of defenses are unclear." We consider two elements in evaluating whether a law is void for vagueness: "First ... whether there is a history or a strong likelihood of arbitrary enforcement and uneven application. Second ... whether the regulation provides adequate notice of prohibited conduct." Because there is no history of arbitrary enforcement and Fantasies was given notice, these laws are not vague as applied to Fantasies' denial.

a. The Board did not arbitrarily enforce the statute or regulation against Fantasies.

Fantasies claims that the Board arbitrarily enforced AS 04.11.330(a)(1) and 3 AAC 304.180. But this claim is made without analysis or explanation. Consequently, any claims of arbitrary enforcement by the Board are waived. The only articulated claim of arbitrary enforcement is against DOL, claiming that DOL arbitrarily filed an objection to Fantasies' license with the Board when it had settled with two restaurants for unpaid wages in an unrelated matter. The question of arbitrary enforcement by DOL is not properly before us because this is not a review of DOL's actions; DOL investigates claims of wage violations and routinely shares information with other agencies when relevant.

b. The licensing laws provide adequate notice of conduct that is not in the public's best interests.

A law which "either forbids or requires the doing of an act in terms so vague that [people] of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law." As used in the statute and regulation, the term "best interests of the public" is not vague. The statute lists a number of factors that can lead to a determination that renewal would not be in the public interest, including criminal acts, violations of regulations or other laws, untrustworthiness, unfitness to conduct a licensed business, being a potential source of public harm, and allowing sexual contact on the licensed premises. The regulation names these factors and allows the Board to consider "all other factors the [B]oard in its discretion determines relevant to the public interest." While this scope is broad, it is not unconstitutionally vague: the regulation lists the very factors on which the Board decided to deny Fantasies' renewal application. Factors such as prohibiting 911 calls during medical emergencies can easily be understood by those with "common intelligence" as not in the public interest.

Each of the Board's findings correlates to the licensing laws. The Board's finding that Fantasies violated wage and hour laws was based upon DOL's investigation which determined that Fantasies violated AS 04.21.030 's requirement that a business be lawfully conducted. This in turn satisfies 3 AAC 304.180(a)(1)(B), listing "a violation of AS 04" as one factor to be considered in determining whether license renewal is in the public's best interest.

The Board's finding that Fantasies discouraged dancers from calling 911 during medical emergencies is not only generally against the public interest, it is also "a potential source of harm to the public," a factor listed under 3 AAC 304.180(a)(2). Additionally, the finding that Gravelle lacks knowledge of club operations suggests he is "unfit to conduct a licensed business," another factor enumerated under 3 AAC 304.180(a)(2). The finding that Gravelle does not know the legal requirements for operating Fantasies' license similarly indicates that he is "unfit to conduct a licensed business" as well as "untrustworthy" because he had signed a document claiming familiarity with Title 4 of the Alaska Statutes and its regulations. Both of these factors are listed in 3 AAC 304.180(a)(2). And the finding that a management agreement gives a manager a direct financial interest in the license also demonstrated that Fantasies violated AS 04.11.450(a). Failure to lawfully conduct business is a factor listed in 3 AAC 304.180(a)(1)(B).

In addition to the specific listed factors on which the Board based its decision, it had discretion to consider "all other factors ... relevant to the public interest" under 3 AAC 304.180(a)(4). Even if the factors on which the Board based its decision were not specifically listed for its consideration, it is apparent that people "of common intelligence" would consider most, if not all, of these factors relevant to the public interest.

The Board's denial of Fantasies' license renewal as not in the public interest is not unconstitutionally vague. The Board's findings are included in the list of factors the Board may consider. A regulation need not explicitly list every permutation of proscribed behavior "[s]o long as the mandate affords a reasonable warning ... in light of common understanding and practice[s]."

V. CONCLUSION

We AFFIRM the superior court's decision upholding the Board's determination denying the renewal of Fantasies' liquor license number 1078 and find no due process violation.

      AS 04.11.450(a).

      See AS 04.11.330(a)(1) (requiring denial of renewal application if [B]oard finds not in best interests of public).

      See AS 44.62.390(a) (detailing time limit and substance of what respondent may file in notice of defense, including request for hearing).

      See AS 44.62.560(a) ("[j]udicial review by the superior court of a final administrative order may be had by filing a notice of appeal"); Alaska R. App. P. 602(a)(2) (same).

      Heller v. State, Dep't of Revenue , 314 P.3d 69, 72-73 (Alaska 2013) (footnotes omitted).

      Rollins v. State, Dep't of Pub. Safety , 312 P.3d 1091, 1094 (Alaska 2013).

      Halter v. State, Dep't of Commerce & Econ. Dev., Med. Bd. , 990 P.2d 1035, 1037 (Alaska 1999).

      S. Anchorage Concerned Coal., Inc. v. Municipality of Anchorage Bd. of Adjustment , 172 P.3d 774, 780 (Alaska 2007).

      Id. (quoting Leigh v. Seekins Ford , 136 P.3d 214, 216 (Alaska 2006) ).

      See Rollins v. State, Dep't of Pub. Safety , 312 P.3d at 1094 ("[T]he 'reasonable basis' test applies to questions of law involving agency expertise.").

      See AS 44.62.570(b)(3) (specifying review by superior court, but we independently review merits of underlying decision).

      Rollins v. State, Dep't of Revenue, Alcoholic Beverage Control Bd. , 991 P.2d 202, 206 (Alaska 1999).

      State, Alcoholic Beverage Control Bd. v. Decker , 700 P.2d 483, 486 (Alaska 1985), overruled on other grounds by Rollins , 312 P.3d at 1095. AS 44.62.570(c)(2) states that abuse of discretion is established if the court determines that the findings are not supported by "substantial evidence in light of the whole record."

      3 AAC 304.180(a)(4).

      See, e.g. AS 04.11.010 -.700 (licensing), 04.21.010-.080 (general provisions).

      AS 04.21.030 ("The licensee has a duty to exercise that degree of care that a reasonable person would observe to ensure that a business under the person's control is lawfully conducted.").

      AS 04.11.330(a)(1).

      Decker , 700 P.2d at 487 (second alteration in original), overruled on other grounds by Rollins , 312 P.3d at 1095.

      3 AAC 304.180(a)(1).

      3 AAC 304.180(a).

      3 AAC 304.180(a) ("The factors the board will, in its discretion, consider in determining whether it is in the public interest to ... refuse to renew or transfer a license include ....).

      While AS 04.11.510 lays out the general procedure for actions on license applications, suspensions, and revocations, Fantasies received more opportunity to be heard than the statute requires, having been provided three Board hearings, an administrative appeal, and a superior court appeal. Because we find that Fantasies received due process and thus was not injured by the purportedly deficient statute, we decline to address this purely legal issue. See State v. Am. Civil Liberties Union of Alaska , 204 P.3d 364, 368-69 (Alaska 2009) ("[W]hile Alaska's standing rules are liberal this court should not issue advisory opinions or resolve abstract questions of law." (alteration in original) (quoting Bowers Office Prods., Inc. v. Univ. of Alaska , 755 P.2d 1095, 1097-98 (Alaska 1988) )).

      Frontier Saloon, Inc. v. Alcoholic Beverage Control Bd. , 524 P.2d 657, 661 (Alaska 1974) ; see also Rollins v. State, Dep't of Revenue, Alcoholic Beverage Control Bd. , 991 P.2d 202, 211 (Alaska 1999).

      Rollins v. State, Dep't of Revenue , 991 P.2d at 211 (citing Frontier Saloon , 524 P.2d at 659 ).

      Id.

      AS 04.11.510(b) (emphases added).

      Stevens v. State, Alcoholic Beverage Control Bd. , 257 P.3d 1154, 1160 (Alaska 2011) (requiring merely that Board hold hearing before suspending license); see also Frontier Saloon, Inc. , 524 P.2d at 661 (holding that state and federal due process clauses require hearing before license can be suspended by Board).

      Stevens , 257 P.3d at 1160 (third, fourth, and fifth alterations in original) (quoting Rollins v. State, Dep't of Revenue , 991 P.2d at 211 ).

      AS 04.11.510(b)(1). Written notice was provided to Fantasies on July 21, 2016, the day after its application was denied at the Board meeting.

      AS 44.62.370(a).

      See State, Alcoholic Beverage Control Bd. v. Decker , 700 P.2d 483, 487 (Alaska 1985) (affirming Board's denial of liquor license as not in public interest because it would contribute to teenage drinking at nearby schools and was not necessary to serve area's reasonable alcohol requirements), overruled on other grounds by Rollins v. State, Dep't of Pub. Safety , 312 P.3d 1091, 1095 (Alaska 2013).

      Trs. for Alaska v. State, Dep't of Nat. Res. , 795 P.2d 805, 808-09 (Alaska 1990) (finding adequate notice because potential for offshore facilities to support oil development was "logical outgrowth" of notice saying sale could occur without onshore support from specific site).

      "An application requesting renewal of a license shall be denied if ... the [B]oard finds ... that renewal of the license would not be in the best interests of the public." AS 04.11.330(a)(1). "The factors the [B]oard will, in its discretion, consider in determining whether it is in the public interest to ... refuse to renew ... a license include ... all other factors the [B]oard in its discretion determines relevant to the public interest." 3 AAC 304.180(a)(4).

      Halliburton Energy Servs. v. State, Dep't of Labor , 2 P.3d 41, 50 (Alaska 2000).

      Id.

      See id. ("When evaluating whether [a regulation] is void for vagueness, we must determine whether the regulation is vague as applied to the particular conduct for which a citation was issued.").

      See Windel v. Carnahan , 379 P.3d 971, 980 (Alaska 2016) ("[W]here a point is given only a cursory statement in the argument portion of a brief, the point will not be considered on appeal.") (quoting Burts v. Burts , 266 P.3d 337, 344 (Alaska 2011) ).

      Halliburton , 2 P.3d at 51 (quoting Lazy Mountain Land Club v. Matanuska-Susitna Borough Bd. of Adjustment & Appeals , 904 P.2d 373, 382 (Alaska 1995) ).

      3 AAC 304.180(a)(1)-(3).

      3 AAC 304.180(a)(4).

      Halliburton , 2 P.3d at 51.

      AS 04.11.450(a) ("A person other than a licensee may not have a direct or indirect financial interest in the business for which a license is issued.").

      See Halliburton , 2 P.3d at 51.

      Id. (first alteration in original) (quoting Vanco Constr., Inc. v. Donovan , 723 F.2d 410, 412 (5th Cir. 1984) ).


author: Judge ALLARD.

text:
    Brian HALL, Appellant, v. STATE of Alaska, Appellee.
    Court of Appeals No. A-12719
    Court of Appeals of Alaska.
    June 28, 2019
    Cynthia L. Strout, Law Office of Cynthia L. Strout, Anchorage, for the Appellant.
    Nancy R. Simel, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee.
    Before: Allard, Chief Judge, and Wollenberg and Harbison, Judges.
   Judge ALLARD.

In 1995, Brian Hall was convicted of first-degree murder and second-degree murder for the shooting deaths of Mickey Dinsmore and Stanley Honeycutt. In the years following his conviction, Hall litigated two post-conviction relief applications, both of which were denied. Hall now seeks to litigate a third post-conviction relief application based on what he claims is newly discovered evidence of innocence that was not available when he litigated his previous post-conviction relief applications.

In the proceedings below, the superior court summarily dismissed Hall's application under AS 12.72.020(a)(6) - the statutory provision that prohibits a defendant from bringing an application for post-conviction relief if "a previous application for post-conviction relief has been filed under [AS 12.72] or under the Alaska Rules of Criminal Procedure." On appeal, Hall argues that this statutory provision should not apply to claims based on newly discovered evidence of innocence. For the reasons explained here, we agree with Hall that due process precludes application of the statutory bar on successive petitions when a defendant is raising a post-conviction relief claim based on newly discovered evidence of innocence that was not previously available to the defendant. However, because it is not clear whether Hall's claim qualifies as newly discovered evidence of innocence under AS 12.72.020(b)(2), we conclude that a remand for litigation of this question is required.

Accordingly, we vacate the superior court's dismissal of Hall's postconviction relief application, and we remand this case to the superior court for further proceedings consistent with the guidance provided here.

Factual background and prior proceedings

Late in the evening of April 16, 1993, seventeen-year-old Brian Hall and four of his friends drove together to a bonfire in a parking lot on Campbell Airstrip Road. Hall had a loaded pistol with him.

Shortly after they arrived, Hall and his friends got into a shouting match with the occupants of another vehicle, Mickey Dinsmore and Stanley Honeycutt. A fifteen-year-old girl, Monica Shelton, briefly acted as an intermediary between the two vehicles. Moments later, Dinsmore and Honeycutt began to slowly drive up along the driver's side of Hall's vehicle. As they did so, Dinsmore extended a beer bottle, bottom end up, to the driver of Hall's car, stating, "We ain't got no beef with you; do you want some of this?"

Hall, who was then standing outside the passenger door of his vehicle, testified at trial that he thought Dinsmore had a gun. Hall pulled his own gun out of his back pocket and fired three shots over his car towards Dinsmore. One shot hit Dinsmore on the top of the head and another shot hit Honeycutt in the mouth. Both Dinsmore and Honeycutt died as a result of the gunshot wounds inflicted by Hall.

Following waiver of juvenile jurisdiction, Hall was indicted on two counts of first-degree murder. Hall's defense at trial was self-defense. He testified that he believed that Dinsmore had a gun because Monica Shelton had relayed to Hall and his friends, "[Dinsmore and Honeycutt] have a gun, and they'll shoot [you], so just leave." Likewise, Hall's defense investigator claimed that Shelton had told him, in an unrecorded interview prior to trial, that she thought she had told Hall that Dinsmore and Honeycutt had a gun or might have a gun.

However, at trial Shelton maintained that she never told Hall that Dinsmore had a gun.

Shelton's equivocation on whether she said anything to Hall about a gun was discussed in the defense opening statement at trial, and again during closing arguments. During his direct examination of Shelton, the prosecutor questioned Shelton about her statement to the defense investigator. Shelton testified that she did not recall making that statement, but that she may have done so. Shelton was adamant, however, that the truth was that she had not told Hall that Honeycutt and Dinsmore had a gun.

Hall was convicted of one count of first-degree murder for shooting Dinsmore and one count of second-degree murder for shooting Honeycutt.

Seventeen years after Hall was convicted, in November 2012, a defense investigator who had been hired by Hall's family contacted Shelton and interviewed her. In the interview (which was recorded and transcribed), Shelton said that she was willing to "put the record straight." Shelton told the defense investigator that she did remember telling Hall that there was a gun because Dinsmore and Honeycutt said they had a gun and pointed to their glove box. She stated, "I did tell [Hall and his friends] that there was a gun ... and that might've been why [Hall] thought 'I'm gonna shoot first.' "

Shelton's statement was not made under oath, and she never affirmed the statement in an affidavit.

A year after the recorded interview was obtained, Hall's attorney filed a motion for a new trial based on newly discovered evidence. The motion was later modified and refiled as an application for post-conviction relief. This was Hall's third application for post-conviction relief. Hall had previously filed two applications for post-conviction relief in 1999 and 2008, raising various ineffective assistance of counsel claims. Both applications had been dismissed and their dismissals affirmed by this Court.

The State filed a motion to dismiss the third post-conviction relief application, arguing, inter alia , that Hall's application was barred under AS 12.72.020(a)(6) because it was successive.

The superior court agreed that the application was statutorily barred under AS 12.72.020(a)(6), and the court dismissed the application on that basis.

This appeal followed.

Why we conclude that the superior court erred in summarily dismissing Hall's application as a successive application under AS 12.72.020(a)(6)

A defendant's right to seek post-conviction relief in the Alaska courts is governed by AS 12.72. Alaska Statute 12.72.020 sets forth various limitations on a defendant's right to seek post-conviction relief. For example, AS 12.72.020(a)(3) and (a)(4) set forth statutory deadlines that must be met, and AS 12.72.020(a)(6) prohibits a defendant from bringing a claim for post-conviction relief if "a previous application for post-conviction relief has been filed."

The requirement that the application must be brought within the statutory deadline is subject to certain statutory exceptions, including an exception for claims based on newly discovered evidence of innocence. To qualify for this newly discovered evidence exception under AS 12.72.020(b)(2), the applicant must establish due diligence in presenting the newly discovered evidence claim. The applicant must also show that the newly discovered evidence (A) was not known within the applicable statutory deadline; (B) is not cumulative to the evidence presented at trial; (C) is not impeachment evidence; and (D) establishes by clear and convincing evidence that the applicant is innocent. These requirements are similar to the requirements a defendant must meet to bring a motion for a new trial based on newly discovered evidence under Alaska Criminal Rule 33 and Salinas v. State .

In contrast to the statutory exceptions that exist for untimely applications, there are no statutory exceptions to the prohibition against successive petitions. Alaska Statute 12.72.020(a)(6) declares that "[a] claim may not be brought under AS 12.72.010 or the Alaska Rules of Criminal Procedure if a previous application for post-conviction relief has been filed under this chapter or under the Alaska Rules of Criminal Procedure." The statute provides no exceptions to this seemingly absolute bar against successive applications.

In Grinols v. State , however, we recognized that "[t]here is a real possibility that [this] statute may lead to fundamental unfairness." We noted, for example, that AS 12.72.020(a)(6) would seemingly bar a second or subsequent application for postconviction relief even in cases where new genetic testing (i.e. , testing that was unavailable when the defendant litigated the first application) would convincingly demonstrate the defendant's innocence. We also squarely held in Grinols that due process requires an exception to the statutory bar against successive petitions for ineffective assistance of counsel claims against the defendant's first post-conviction relief attorney. Thus, defendants who believe that they received ineffective assistance of counsel during the litigation of their first application for post-conviction relief must be allowed to file a second application for post-conviction relief, notwithstanding the plain language of AS 12.72.020(a)(6) that seemingly bars such successive petitions. The Alaska Supreme Court affirmed this holding in Grinols v. State .

Following the Grinols decision, the Alaska Legislature enacted AS 12.72.025, setting forth a one-year statutory deadline for ineffective assistance of counsel claims based on Grinols .

In Roberts v. State , we again addressed the problem that AS 12.72.020(a)(6) potentially presents for post-conviction relief claims that rely on newly discovered evidence - i.e. , evidence that was not available at the time the prior postconviction relief application was litigated. In Roberts , we noted that federal law provides some support for interpreting AS 12.72.020(a)(6) in a less restrictive manner than its literal wording might suggest. Under federal law, a prisoner who wishes to file a "second or successive" petition for habeas corpus relief must allege certain facts, and must additionally obtain special permission from the appeals court. In addition, the federal "abuse of the writ" doctrine dictates that a petition is only considered "second or successive" if the petitioner raises claims that "could have been raised in the first petition but [were] not so raised, either due to deliberate abandonment or inexcusable neglect."

Many states likewise provide relief to a defendant who seeks to raise a newly discovered evidence claim in what would otherwise qualify as a second or successive post-conviction relief application. Most states provide this relief directly through their statutes or court rules. At least one state has provided this relief through case law.

In Roberts , we speculated that AS 12.72.020(b)(6) could be interpreted in a similar fashion to permit post-conviction relief claims that could not have been raised in a prior application for post-conviction relief. We also considered that there could be cases where the need to provide an avenue for relief is so strong that, just like in Grinols , we would conclude that the due process clause of the Alaska Constitution requires an exception to the seemingly absolute bar erected by AS 12.72.020(a)(6). However, we ultimately concluded that we did not need to resolve these issues in Roberts because the newly discovered evidence claim that Roberts sought to bring had already been found to be without merit in his co-defendant's case.

This is not true in the current case. Here, Hall's claim of newly discovered evidence has not been litigated in any other forum and the merits of his claim are unknown. We therefore must decide the constitutional and statutory interpretation issues that we left undecided in Roberts .

On appeal, Hall urges us to adopt the federal abuse of the writ doctrine for purposes of determining whether a subsequent post-conviction relief application qualifies as a "second or successive" petition. As discussed above, under the federal abuse of the writ doctrine, a petition for writ of habeas corpus is not considered "second or successive" for purposes of 28 U.S.C. § 2255(h) if the petitioner can show that they could not have raised the claim in the previous petition.

We are not convinced that such a reading is consistent with the legislative intent behind AS 12.72.020(b)(6). As we explained in Grinols , prior to the adoption of AS 12.72, Alaska Criminal Rule 35.1(h) barred successive applications for postconviction relief "unless the defendant could show good cause for failing to raise their claim earlier." Thus, Alaska law used to have a doctrine similar to the federal abuse of the writ doctrine, and the enactment of AS 12.72.020(b)(6) suggests that the legislature did not intend for that doctrine to continue.

However, this means that our statute is anomalous among the state and federal statutes that we have surveyed, which do provide for such relief. The question therefore arises whether the absolute prohibition against successive petitions codified in AS 12.72.020(b)(6) violates due process. We have already answered that question in the affirmative in Grinols . In Grinols , we held (and the supreme court affirmed) that due process necessitated an exception to the statutory bar for claims based on the ineffective assistance of prior post-conviction relief counsel - claims which, by definition, could not have been raised earlier. We now conclude that a similar due process exception exists for claims of newly discovered evidence of innocence.

Accordingly, we hold that a defendant is entitled to bring a post-conviction claim for relief in what would otherwise qualify as a second or successive petition if the defendant is able to establish that the claim is based on newly discovered evidence, as that term is defined under AS 12.72.020(b)(2). Such a holding is directly in line with the requirements of due process under the Alaska Constitution, our prior decision in Grinols , and the law in other state and federal jurisdictions.

The only remaining question left to answer in this case is whether Hall is entitled to this exception under the facts presented here. In its briefing on appeal, the State argues that Hall has failed to establish a claim of newly discovered evidence. In particular, the State argues that Hall has failed to show adequate diligence in obtaining this new evidence; the State maintains that Hall inexcusably waited seventeen years before re-interviewing Monica Shelton. The State also argues that the evidence obtained through the recent defense interview - an unsworn recantation of Shelton's trial testimony - is not materially different from the evidence the defense already had at Hall's trial. Lastly, the State argues that Hall has failed to support his claim with the proper affidavits and has failed to show that the newly discovered evidence would actually result in a different outcome at trial.

We conclude that these are arguments that should be raised in the first instance to the superior court. Because the superior court summarily dismissed Hall's application under AS 12.72.020(a)(6), the parties have not had a full and fair opportunity to litigate whether Hall's newly discovered evidence claim falls within the due process exception we have just articulated. Accordingly, we remand this case to the superior court so that this litigation can occur.

Conclusion

For the reasons explained here, the superior court's dismissal of Hall's postconviction relief application is VACATED, and this case is REMANDED to the superior court for further proceedings consistent with the guidance provided in this opinion. We do not retain jurisdiction.

      The defense investigator did not testify at trial, but he made an offer of proof to the trial judge.

      Hall v. State , 2007 WL 2069546 (Alaska App. July 18, 2007) (unpublished); Hall v. State , 2012 WL 5897312 (Alaska App. Nov. 21, 2012) (unpublished).

      See AS 12.72.020(b)(2) ; see also AS 12.72.020(b)(1) (setting forth two other statutory exceptions to the statutory deadlines).

      AS 12.72.020(b)(2).

      AS 12.72.020(b)(2)(A)-(D).

      See Alaska R. Crim. P. 33 ; Salinas v. State , 373 P.2d 512, 514 (Alaska 1962) (holding that a defendant seeking a new trial based on newly discovered evidence must show that (1) the evidence was newly discovered; (2) the defendant exercised diligence in seeking to discover the evidence; (3) the evidence is not merely cumulative or impeaching; (4) the evidence is material to the issues involved; and (5) the evidence would probably result in an acquittal at a new trial).

      Grinols v. State , 10 P.3d 600, 616 (Alaska App. 2000).

      Id. at 616.

      Id. at 618-20.

      Id. at 616-17.

      Grinols v. State , 74 P.3d 889, 895 (Alaska 2003) (holding that "the burden on the state [of litigating a second or successive petition] is not enough to overcome a defendant's right to effective representation and the risk that that right would be violated if the defendant were unable to challenge an attorney's effectiveness").

      See SLA 2007, Ch. 24, § 25; see also House Finance Committee, Testimony of Assistant Attorney General Anne Carpeneti on House Bill 90 (Apr. 24, 2007), at 1:57:09 p.m.

      Roberts v. State , 164 P.3d 664, 666 (Alaska App. 2007).

      See 28 U.S.C. § 2255(h) (providing that "[a] second or successive [application] must be certified as provided in section 2244 by a panel of the appropriate court of appeals"); 28 U.S.C. § 2244(b) (requiring, inter alia , that the applicant allege certain substantive facts, and that the application be authorized by a three-judge panel).

      Lang v. United States , 474 F.3d 348, 351-52 (6th Cir. 2007) (quoting In re Bowen , 436 F.3d 699, 704 (6th Cir. 2006) ); see also James v. Walsh , 308 F.3d 162, 167 (2d Cir. 2002) (subsequent petition for writ of habeas corpus is only "second or successive" when it raises a claim that was, or could have been, raised in an earlier petition).

      See 24 C.J.S. Criminal Procedure and Rights of Accused § 2168 (May 2019 update) (noting exceptions for successive petitions that raise ineffective assistance of counsel claims and petitions that raise newly discovered evidence claims).

      See, e.g. , Ariz. R. Crim. P. 32.1(e) & 32.2(b) ; Fla. R. Crim. P. 3.851(d)(2) & (e)(2)(c) ; Idaho Code § 19-4908 ; Ill. R. Crim. P. 725 § 5/122-1(f); La. Code Crim. P. 930.4 & 930.8 ; Miss. R. Crim. P. § 99-39-23(6); Ohio R. Crim. P. 2953.23; Or. Rev. Stat. 14 § 138.550(3) ; R.I. Gen. Laws § 10-9.1-8.

      See State v. Reichel , 187 Neb. 464, 191 N.W.2d 826, 828 (1971) (acknowledging exception to statutory prohibition against successive post-conviction motions when the basis relied upon for relief was not available at the time the prior post-conviction motion was filed); see also State v. Ryan , 257 Neb. 635, 601 N.W.2d 473, 484 (1999) ("A defendant is entitled to bring a second proceeding for postconviction relief only if the grounds relied upon did not exist at the time the first motion was filed.").

      Roberts v. State , 164 P.3d 664, 666 (Alaska App. 2007).

      Id.

      Id.

      See Lang v. United States , 474 F.3d 348, 351-52 (6th Cir. 2007) ; James v. Walsh , 308 F.3d 162 (2d Cir. 2002).

      See Grinols v. State , 10 P.3d 600, 616 (Alaska App. 2000) ; see also former Alaska R. Crim. P. 35.1(h) (pre-July 1995 version) ("Any ground finally adjudicated or not so raised, or knowingly, voluntarily and intelligently waived in ... [any] proceeding the applicant has taken to secure relief may not be the basis for a subsequent application, unless the court finds a ground for relief asserted which for sufficient reason was not asserted or was inadequately raised in the original, supplemental, or amended application."); SLA 1995, ch. 79, § 39.

      See, e.g. , 28 U.S.C. § 2255 ; Ariz. R. Crim. P. 32.1(e) & 32.2(b) ; Fla. R. Crim. P. 3.851(d)(2) & (e)(2)(c) ; Idaho Code § 19-4908 ; Ill. R. Crim. P. 725 § 5/122-1(f); La. Code Crim. P. 930.4 & 930.8 ; Miss. R. Crim. P. § 99-39-23(6); Ohio R. Crim. P. 2953.23; Or. Rev. Stat. 14 § 138.550(3) ; R.I. Gen. Laws § 10-9.1-8.

      Grinols , 10 P.3d at 620 ; Grinols v. State , 74 P.3d 889, 895 (Alaska 2003).