author: MAASSEN, Justice.

text:
    Justin A. D. NELSON, Petitioner, v. STATE of Alaska, Respondent.
    Supreme Court No. S-16719
    Supreme Court of Alaska.
    April 19, 2019
    J. Adam Bartlett, Anchorage, for Petitioner.
    Timothy W. Terrell, Assistant Attorney General, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for Respondent.
    Douglas O. Moody, Deputy Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for Amicus Curiae Public Defender Agency.
    Before: Bolger, Chief Justice, Winfree, Stowers, Maassen, and Carney, Justices.
   MAASSEN, Justice.

I. INTRODUCTION

A defendant pleaded guilty to attempted first-degree sexual abuse of a minor. On the day of sentencing he moved to withdraw his plea, arguing that he had not understood the terms of the agreement and had received ineffective assistance of counsel. The superior court declined to appoint a different lawyer to represent him on the motion to withdraw his plea and denied the motion. The court of appeals affirmed these decisions.

We accepted Nelson's petition for review on the question whether he was entitled to conflict-free counsel on the motion to withdraw his plea. We adopt a per se rule requiring conflict-free counsel in the context of plea withdrawals and therefore reverse the decision of the court of appeals. We remand to the superior court to decide Nelson's plea-withdrawal motion while he is represented by conflict-free counsel.

II. FACTS AND PROCEEDINGS

In 2011 Justin A. D. Nelson was indicted on three felony counts of sexual abuse of a minor. He was initially represented by attorneys Patricia Douglass and Alexander Foote, both of the Dillingham office of the Alaska Public Defender Agency.

At the start of the first day of trial, Douglass informed the court that Nelson "want[ed] to take the deal" that the State had offered him. The court took a brief recess so Nelson could confer with his attorneys. After the break the court talked about the details of the plea agreement and the applicable sentencing ranges. Douglass confirmed that she had gone over the plea agreement with Nelson; she believed he understood the situation and was competent to proceed. In a brief allocution, Nelson said he was accepting the Alaska Criminal Rule 11 offer because he was "trying to look for the minimum time possible ... and it just looks like this is it." The court accepted Nelson's plea.

On the day set for sentencing, Foote, on Nelson's behalf, filed a combined motion seeking to withdraw the plea and asking that the Public Defender Agency be allowed to withdraw from representing Nelson. According to the motion, Nelson believed that the Public Defender Agency had "been ineffective as counsel," that Douglass "was not supportive of his defense," and that Nelson had not understood "the full ramifications of the Rule 11 agreement" at the time he agreed to it. The motion also informed the court that Nelson "may have additional argument he wishes to make that counsel is unaware of, as our office was only recently informed of Mr. Nelson's objective, and communication has proven difficult due to Mr. Nelson's incarceration."

Nelson was not present at the sentencing hearing, apparently due to a transportation glitch. Before discussing rescheduling, the court asked about Nelson's motion, focusing first on the assertion that Nelson might have "additional argument" as to why he should be allowed to withdraw his plea. Foote explained the difficulty he and Douglass were having communicating with their client. The court observed that the defense motion seemed "insufficient at this point," asked that it be supplemented within two weeks (and "[i]f you need more time, ask for it"), and postponed the sentencing hearing until further notice. The motion was never supplemented. The court denied the request to withdraw the guilty plea on March 8 and the request that the Public Defender Agency be allowed to withdraw as counsel on March 13. The court set sentencing for March 16.

On March 14 the court received a handwritten letter from Nelson dated February 25. In the letter, Nelson told the court that he had no productive communication with his Public Defender Agency attorneys, that he did not "know what's going on," and that he was "confused about a lot of things in [his] case." He complained that Douglass often hung up on him "while [he] was trying to explain [his] case," that he did not know if any motions had been filed on his behalf, and that all he "wanted [was] a fair trial, a fair attorney that will listen to what [he had] to say."

In response, the court provided Nelson with "[c]opies of all 2012 pleadings and orders" and ordered defense counsel to meet with him within the next two days. On March 16, the day set for sentencing, a response to the court's order was filed by Robert Meachum, another attorney in the Dillingham Public Defender Agency office. Meachum reported that Nelson did "not want to proceed with sentencing as scheduled" and asked that the court consider his February 25 letter "as reasons why he should be allowed to withdraw his plea."

Nelson was present at the hearing that afternoon, represented by Meachum. The court explained that it had reviewed Nelson's February 25 letter but saw "nothing that justifies a change of plea or a withdrawal of the change of plea," though "[i]t may justify withdrawal of counsel." According to the court, the most the letter showed was "a change in [Nelson's] mind" about the plea agreement, which fell short of "a fair and just reason to withdraw his plea." The court reiterated its denial of Nelson's motion to withdraw his plea. The court was willing, however, to allow Nelson "to move for reconsideration, ... to delay sentencing, ... [or] to renew his motion for a different attorney." But Meachum suggested that the appropriate procedural route was for Nelson to wait and allege ineffective assistance of counsel in a motion for post-conviction relief, and in the meantime "perhaps [they] ought to just go ahead with sentencing."

The court next heard a statement read by the victim's father. The court then reiterated its intent to deny Nelson's motion to withdraw his plea, finding that there was not "a fair reason, a just reason" for withdrawal, that it "would prejudice the State," and that "it would harm the victims." At Nelson's request, the court agreed to postpone sentencing another week to give him time to talk to his attorney, though Meachum told the court that he had already spoken with Nelson in February and "twice in the past week" and did not know what Nelson could tell him that he did not know already. The court again noted that "it may be that [Nelson] need[s] another attorney appointed sooner rather than later," but it did not again address the Agency attorneys' request to withdraw.

When the superior court held the sentencing hearing the following week, Meachum informed the court, "I was ready to go last week, I'm ready to go today," and said he had not spoken to Nelson since the last hearing because he thought they had nothing new to say to each other. Nelson told the court he had been expecting Meachum to visit him because he had "some things that [he] needed for [Meachum] to say"; he also complained that he had not seen any discovery, transcripts, or other documents related to his case. He said, "[T]he reason I took a deal is because of ineffective assistance, and the reason why I took it back is because of ineffective assistance." The court explained, however, that it had gone back over the record of the plea agreement and remained unconvinced that there was any reason to allow the plea's withdrawal. And Meachum reiterated his view that a claim of ineffective assistance of counsel should be "litigated in post-conviction relief."

The court proceeded with sentencing over Nelson's continued objections that he wanted a representation hearing instead. The court recognized the Public Defender Agency's conflict, however, and after sentencing it relieved the Agency of its duty to represent Nelson any further; the court said it was "appointing new counsel at this time, OPA or OPA contractor, for purposes of reviewing for appeal or post[-] conviction relief."

Represented by new counsel from the Office of Public Advocacy, Nelson appealed to the court of appeals. The court held in an unpublished opinion that while Nelson should not have been required to wait until after sentencing to litigate his claim of ineffective assistance of counsel, the superior court did not err by denying his motion to withdraw his plea because he had not articulated a "colorable basis" for withdrawal. Nelson petitioned for rehearing. On rehearing the court of appeals held that, while "the appointment of conflict counsel will often be the appropriate action in these circumstances, particularly because a different standard applies to a presentencing motion to withdraw a plea as opposed to a post-sentencing motion to withdraw a plea," deference to the superior court's discretion was appropriate given Nelson's inability "to articulate or substantiate any specific assertions of how he had been incompetently represented" and the fact that sentencing "had already been delayed multiple times."

Nelson filed a petition for hearing, which we granted.

III. STANDARD OF REVIEW

"We review constitutional questions using our independent judgment, ... adopting the rule of law that is most persuasive in light of precedent, reason, and policy." Whether a conflict of interest exists under the Alaska Rules of Professional Conduct is an issue of law also reviewed de novo under the independent judgment standard. Finally, whether to grant or deny a motion to withdraw a plea is within the trial court's discretion, and we review its decision for abuse of discretion.

IV. DISCUSSION

In the discussion that follows, we first identify the conflict of interest shared by Nelson's three Public Defender Agency lawyers. We next conclude that Nelson was entitled to conflict counsel immediately after the conflict of interest arose - that is, when Nelson first raised his claim, in the context of his plea-withdrawal motion, that his Agency lawyers provided ineffective assistance of counsel. Finally, we conclude that it was an abuse of discretion to deny the plea-withdrawal motion under these circumstances.

A. Nelson's Public Defender Agency Lawyers Had A Concurrent Conflict Of Interest Under Rule Of Professional Conduct 1.7.

At the sentencing hearing the superior court recognized that the Public Defender Agency had a conflict of interest which required the appointment of a lawyer without that conflict - though the superior court applied the new counsel remedy only to appellate and post-conviction proceedings. As the first step in our analysis of the issues raised in this petition, we agree there was a conflict of interest.

Alaska Rule of Professional Conduct 1.7 mandates that "a lawyer shall not represent a client if the representation involves a concurrent conflict of interest." A concurrent conflict exists when "there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client, or a third person or by a personal interest of the lawyer ." One such "personal interest" that may risk "materially limit[ing]" the lawyer's representation is the lawyer's interest in defending the professional competency of that representation. The District of Columbia Court of Appeals found a violation of Rule 1.7 under circumstances similar to those presented here: A lawyer continued representing a defendant on his motion to withdraw a guilty plea following allegations that the lawyer had coerced the defendant into pleading guilty. The court agreed with the bar disciplinary body that the lawyer's representation of his client "was materially limited by his own interests." The court explained: "Because [the defendant] alleged coercion and ineffective assistance of counsel as grounds for his motion to withdraw his guilty plea, [the lawyer] could not argue the motion to withdraw without possibly admitting serious ethical violations and subjecting himself to possible liability for malpractice." This left the client "unrepresented by counsel on the issue relating to the request to withdraw the guilty plea."

The same conflict existed in this case for Douglass and Foote, Nelson's original attorneys from the Dillingham office of the Public Defender Agency. Although Nelson's specific complaints were directed primarily at Douglass, his more general complaints - confusion, poor communication, and lack of information - involved his representation as a whole, thus necessarily including Foote. Had Douglass and Foote represented Nelson on his motion to withdraw his plea, they would have been required to argue their own ineffectiveness and lapses of professional duty, against their own personal interest. We recognize a "significant risk" that this personal interest would "materially limit[ ]" their representation of Nelson in that context.

As explained above, however, it was another attorney in the Dillingham office, Meachum, who took up Nelson's representation after Foote filed the motion to withdraw the guilty plea and to allow the Public Defender Agency's withdrawal from representation. But public defenders may be conflicted even when, like Meachum, they did not take part in the challenged proceedings and were not themselves alleged to be ineffective. Under Alaska Rule of Professional Conduct 1.10(a), lawyers who "are associated in a firm" should not "knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rule[ ] 1.7" except under the following condition: "the prohibition is based on a personal interest of the prohibited lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm." The next question to answer, therefore, is whether there was "a significant risk" that Meachum's representation of Nelson would be "materially limited" by the personal interest of his prohibited colleagues.

Courts have taken different approaches to this issue. Some, including the United States Court of Appeals for the Tenth Circuit and state courts in Illinois, New Jersey, New Mexico, Ohio, and Rhode Island, follow a case-by-case rule: whether one public defender's conflict is imputed to others in the same office "will turn on the specific circumstances." Relevant circumstances include such things as the physical proximity of the lawyers' offices, office culture, and the individual lawyer's history of raising ineffective assistance claims. The State endorses this case-by-case rule. It argues that a presumption of conflict in the public defender context is unwarranted for several reasons: (1) public defenders have less financial incentive than private lawyers to avoid ineffective assistance claims because their pay is not dependent on the results of individual cases; (2) the agency's reputation is in fact bolstered when one employee pursues ineffective assistance allegations against another; and (3) loyalty to colleagues is unlikely to cloud public defenders' judgment, as they have a "unique duty of loyalty to their clients."

Other states follow a per se rule, under which a "mere allegation of ineffective assistance is sufficient to create a conflict of interest disqualifying the public defender." It is this rule that Nelson endorses, and it is the rule we prefer.

We recognize that public defenders, like any other lawyers, may feel strongly loyal to individual colleagues; public defenders, like any other lawyers, may fear social or bureaucratic consequences in the workplace from their pursuit of an argument that a coworker or supervisor acted incompetently. Individuals vary, of course, but none should be asked to face "the dilemma of [either] vigorously asserting the petitioner's claim or defending the professional reputation of [their] office." And trial judges would be placed in a difficult position if they were required to decide on a case-by-case basis whether individual public defenders were detached enough from their colleagues to zealously pursue ineffective assistance claims without being "materially limited" under Rule 1.10(a).

We therefore hold that a public defender has a conflict of interest when the petitioner raises a claim of ineffective assistance of counsel against another public defender in the same office. Under this per se rule, Meachum had an imputed conflict of interest because he worked in the same office of the Public Defender Agency as Douglass and Foote.

B. Nelson Should Have Been Appointed Conflict Counsel After He Filed A Motion Arguing Ineffective Assistance Of Counsel.

We now examine whether the superior court should have appointed conflict counsel immediately rather than first sentencing Nelson and appointing conflict counsel only for purposes of appellate or post-conviction review. The State concedes that conflict counsel will be necessary "[i]f a trial court opts to fully litigate a plea-withdrawal motion predicated on ineffective assistance of counsel," that is, if it decides that there are disputed issues of material fact that need to be aired in an evidentiary hearing. But the State contends that a plea-withdrawal motion will only reach that stage if the motion states a prima facie claim of ineffective assistance - raising "specific, non-conclusory allegations that if credited would permit the court to find facts by a preponderance of the evidence that support the conclusion that counsel was ineffective and that this was a significant factor in the defendant's decision to enter a plea." It is only if the motion survives this preliminary inquiry that original counsel is "suspended" and conflict counsel is appointed for purposes of the evidentiary hearing. The State suggests that original counsel must withdraw only if and when "the court finds ineffective assistance and grants plea withdrawal."

Nelson, in contrast, argues that the right to conflict counsel arises immediately when a motion based on ineffective assistance of counsel is filed "because the right to counsel is a fundamental right." He argues that whenever the appointment of conflict counsel "requires that a defendant meet a specific burden of proof, the defendant necessarily finds himself acting pro se and advocating against his own attorney" in contravention of the Sixth Amendment's right-to-counsel guarantee. Nelson argues that the State's proposed two-step process requires that a defendant proceed on a complex topic essentially without counsel, and that this will ensure that "only the most articulate and eloquent of defendants will be able to assert their rights." Nelson minimizes the procedural downside of an immediate and automatic appointment of conflict counsel.

The Sixth Amendment guarantees the right to the assistance of counsel in a criminal case. This guarantee applies to state proceedings by virtue of the Fourteenth Amendment. "Once [the] right attaches, the defendant is entitled to the presence of counsel at 'any "critical stage" of postattachment proceedings.' " A proceeding on a motion to withdraw a guilty plea is a "critical stage." We must agree with those courts that have found a violation of a defendant's Sixth Amendment right to counsel when the defendant has had to pursue a plea withdrawal motion based on ineffective assistance of counsel without the help of conflict counsel. And we reject the idea that the right to conflict counsel depends on the defendant's ability to first cross a "prima facie case" threshold while essentially unrepresented.

Finally, fairness favors a per se approach to the appointment of conflict counsel in this context because of the different standards of proof required before and after sentencing. Alaska Rule of Criminal Procedure 11(h) addresses motions to withdraw guilty pleas. Under Rule 11(h)(2), the court must grant a presentencing motion to withdraw a guilty plea if "withdrawal is necessary to correct manifest injustice," but the court may grant the motion for "any fair and just reason" provided that the prosecution has not been substantially prejudiced. Under Rule 11(h)(3), in contrast, a defendant may withdraw a guilty plea after sentencing only through an application for post-conviction relief, which may be granted only if the defendant proves that "withdrawal [of the plea] is necessary to correct a manifest injustice." Given the significantly higher burden post-sentencing, the appointment of conflict counsel only for purposes of appeal and post-conviction relief cannot make up for a lack of conflict counsel before sentencing.

In its helpful amicus brief, the Public Defender Agency explains that the Agency and OPA "have a system in place for dealing with the imputation of conflicts [from one Agency attorney to others in the Agency] under Richard B.[ ]" but that "the system broke down in this case." According to the Agency, "[w]hen a client wants to withdraw his plea prior to sentencing, the Agency transfers the case to OPA for the limited purpose of representing the client on that issue." If the client abandons the motion or loses it, then "the Agency will take the case back from OPA and reassign it to the original trial attorney." But if "the client pursues his motion and wins," then "the Agency will take the case back and assign it to a new attorney." In any scenario, the client's expressed wish to withdraw the plea prompts a change in counsel for purposes of litigating at least that issue. As explained, the system appears to be consistent with the per se approach and demonstrates the approach's feasibility in practice.

We hold that a defendant is entitled to conflict counsel immediately after raising an ineffective assistance of counsel claim in the context of an attempt to withdraw a plea.

C. Reversal For Reconsideration Of The Plea-Withdrawal Motion Is Automatic Under These Circumstances.

Nelson argues that because his ineffective assistance claims were not investigated by a conflict-free attorney, we should presume prejudice - and that, because the superior court was aware of the conflict but failed to remedy the situation, reversal should be automatic. This is consistent with our case law. In Risher v. State we noted that "where there is ineffective assistance of counsel due to the deliberate conduct of the trial judge, as in the appointment of counsel where there is a known conflict of interest, the deterrence rationale remains applicable, and reversal will be automatic." Here the superior court did not "appoint" counsel known to have a conflict of interest (as the conflict arose some time after the appointment), but the court accurately identified the conflict and yet failed to appoint conflict counsel except for purposes of post-conviction relief and appeal.

The United States Supreme Court has similarly held that "[i]n certain Sixth Amendment contexts, prejudice is presumed. Actual or constructive denial of the assistance of counsel altogether is legally presumed to result in prejudice." In the context of plea withdrawals specifically, "[t]he vast majority of courts that have addressed the denial of the right to counsel at this critical stage in a criminal proceeding have reversed and remanded to the trial court with instructions to appoint counsel and conduct a new hearing." Consistent with Risher and the majority approach, we presume prejudice in this case and remand for reconsideration of Nelson's plea-withdrawal motion with the involvement of conflict counsel.

V. CONCLUSION

We REVERSE the decision of the court of appeals and REMAND to the superior court for the appointment of conflict counsel and reconsideration of Nelson's motion for withdrawal of his plea.

      Nelson v. State , 397 P.3d 350 (Alaska App. 2017).

      The agreement - made pursuant to Alaska Rule of Criminal Procedure 11 - required Nelson to plead guilty to one reduced count of attempted sexual abuse of a minor in the first degree, in exchange for which the State would dismiss the other two counts. The agreed sentence was 30 years imprisonment with ten suspended; the agreement also included terms of probation.

      Nelson v. State , No. A-11259, 2016 WL 7422690 (Alaska App. Dec. 21, 2016).

      Id. at *4.

      See Nelson , 397 P.3d 350.

      Id. at 351-52.

      Treacy v. Municipality of Anchorage , 91 P.3d 252, 260 (Alaska 2004).

      See Burrell v. Disciplinary Bd. of Alaska Bar Ass'n , 702 P.2d 240, 242-43 (Alaska 1985) (reviewing record in attorney disciplinary proceedings de novo and holding that attorney had a conflict of interest and violated applicable rules of professional conduct).

      McClain v. State , 742 P.2d 269, 271 (Alaska App. 1987).

      We follow the shorthand convention by which conflict-free counsel is referred to as "conflict counsel."

      Alaska R. Prof. Conduct 1.7(a)(2) (emphasis added).

      In re Ponds , 888 A.2d 234, 236, 239 (D.C. 2005).

      Id. at 239.

      Id.

      Id. ; see also People v. Lepe , 164 Cal.App.3d 685, 211 Cal.Rptr. 432, 433 n.1, 434-35 (1985) (affirming order disqualifying entire county prosecutor's office from prosecuting defendant whom lead prosecutor had defended while in private practice, when issues included "constitutional infirmity" of earlier guilty plea "for lack of proper lawyering"); Carey v. State , 902 P.2d 1116, 1118 (Okla. Crim. App. 1995) (holding that requiring attorney to represent defendant in evidentiary hearing on motion to withdraw plea, in which petitioner testified that attorney "tried to coerce him into pleading guilty," unfairly forced attorney "to proceed in representing [defendant] against his own interests").

      See Alaska R. Prof. Conduct 1.7(a)(2).

      Public defenders' potential conflicts of interest are governed by Rule 1.10 rather than Alaska Rule of Professional Conduct 1.11 - relating to conflicts of interest of former and current government employees - because, although paid by the government, "public defenders do not represent the government or a public agency" but rather "work on behalf of private individuals." Richard B. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth Servs. , 71 P.3d 811, 822-23 (Alaska 2003).

      See Christopher M. Johnson, Not for Love or Money: Appointing a Public Defender to Litigate a Claim of Ineffective Assistance Involving Another Public Defender , 78 Miss. L. J. 79, 80 (2008).

      See Cannon v. Mullin , 383 F.3d 1152, 1173 (10th Cir. 2004), abrogated in part on other grounds , Simpson v. Carpenter , 912 F.3d 542 (10th Cir. 2018) ; see also People v. Banks , 121 Ill.2d 36, 117 Ill.Dec. 266, 520 N.E.2d 617, 621 (1987) ; State v. Bell , 90 N.J. 163, 447 A.2d 525, 528-29 (1982) ; Morales v. Bridgforth , 136 N.M. 511, 100 P.3d 668, 669 (2004) ; State v. Lentz , 70 Ohio St.3d 527, 639 N.E.2d 784, 786 (1994) ; Simpson v. State , 769 A.2d 1257, 1271 (R.I. 2001).

      See Cannon, 383 F.3d at 1173-74.

      State v. Veale , 154 N.H. 730, 919 A.2d 794, 799 (2007), abrogated in part on other grounds , State v. Thompson , 161 N.H. 507, 20 A.3d 242 (2011) ; see also Hill v. State , 263 Ark. 478, 566 S.W.2d 127, 127 (1978) (deciding that regardless of merit of post-conviction petition, when allegations of ineffective assistance of counsel are raised, the "better practice" is to appoint counsel "who does not practice law on a day to day basis with the lawyer against whom the allegations are made"); Angarano v. United States , 329 A.2d 453, 458 (D.C. 1974) (stating it is "obvious" that if there is a hearing on allegations of ineffectiveness, non-public defender service attorney "should be appointed if the original trial counsel was with that agency"); Adams v. State , 380 So.2d 421, 422 (Fla. 1980) (observing that attorney has "a hopeless conflict of interest" where appeal is predicated on ineffective assistance of another public defender in same office); Ryan v. Thomas , 261 Ga. 661, 409 S.E.2d 507, 509 (1991) (holding that different attorney in same public defender's office cannot reasonably be expected to properly assert ineffectiveness of another member; to hold otherwise would "permit one member of the firm to shield his fellow member against accusations of ineffectiveness at the expense of the rights of the defendant"); Commonwealth v. Moore , 569 Pa. 508, 805 A.2d 1212, 1215 (2002) (restating rule that, so as to ensure zealous advocacy on defendant's behalf, public defender may not assert ineffective assistance claim against another public defender in same office).

      Adams, 380 So.2d at 422.

      We do not preclude the possibility that a public defender may have a conflict of interest based on the representation by a public defender in a different geographic location. On the case before us, however, we are not prepared to apply the per se rule to the Public Defender Agency statewide.

      U.S. Const. Amend. VI ; Risher v. State , 523 P.2d 421, 423 (Alaska 1974).

      Risher, 523 P.2d at 423 (citing Gideon v. Wainwright , 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) ).

      Forster v. State , 236 P.3d 1157, 1168 (Alaska App. 2010) (quoting Rothgery v. Gillespie Cty., Texas , 554 U.S. 191, 212, 128 S.Ct. 2578, 171 L.Ed.2d 366 (2008) ).

      E.g. , Fortson v. State , 272 Ga. 457, 532 S.E.2d 102, 104 (2000).

      See United States v. Gonzalez , 113 F.3d 1026, 1029 (9th Cir. 1997) (holding that, when trial court questioned defendant's attorney about merits of defendant's claim that plea was coerced, defendant's Sixth Amendment rights were violated because "the court invited [the attorney] to contradict his client and to undermine his veracity, [and the defendant] in effect 'was left to fend for himself, without representation by counsel' " (emphasis omitted)); United States v. Sanchez-Barreto , 93 F.3d 17, 22 (1st Cir. 1996) ("[T]he views expressed by [defense counsel] at the plea-withdrawal hearing directly contradicted the position advocated by [the defendant] in the pro se motion to withdraw his guilty plea. Thus, the ... hearing record leaves no doubt that [the defendant] was left to fend for himself, without representation by counsel." (emphasis omitted)); United States v. Ellison , 798 F.2d 1102, 1106-08 (7th Cir. 1986) ("[D]efendant was effectively without counsel at the hearing and was forced to present his motion without the assistance of counsel. Defendant's testimony was unclear and, because he was without counsel, there was no cross-examination of his attorney. Thus, defendant not only was without conflict-free representation at the hearing but also was in effect without the assistance of counsel at all ...."); Carey v. State , 902 P.2d 1116, 1118 (Okla. Crim. App. 1995) ("Petitioner's interests at the evidentiary hearing were to testify against his lawyer to establish that his guilty plea was given involuntarily .... During the evidentiary hearing, Petitioner had no attorney taking part in promoting his interests which were in actual conflict with the interests of [his attorney]. An attorney representing Petitioner's interests would have placed [his attorney] under cross-examination. Petitioner's own appointed defense counsel acted as his adversary.").

      See AS 12.72.010 -.040.

      Richard B. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth Servs. , 71 P.3d 811, 822-23 (Alaska 2003).

      523 P.2d 421, 425 n.19 (Alaska 1974) (citations omitted).

      Strickland v. Washington , 466 U.S. 668, 692, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

      Fortson v. State , 272 Ga. 457, 532 S.E.2d 102, 105 & n.3 (2000) (footnotes omitted).


source: Caselaw Access Project

author: CARNEY, Justice. BOLGER, Justice, dissenting. BOLGER, Justice, dissenting.

license: Public Domain

text:
    Frank GRISWOLD, Appellant, v. HOMER BOARD OF ADJUSTMENT, John Smith, Norma Smith, Terry Yager, Jonnie Yager, and Rick Abboud, Appellees.
    Supreme Court No. S-16267
    Supreme Court of Alaska.
    April 19, 2019
   CARNEY, Justice.

I. INTRODUCTION

Frank Griswold appealed a decision of the Homer Advisory Planning Commission to the Homer Board of Adjustment. The Board rejected his appeal for lack of standing. Griswold appealed to the superior court, arguing that he had standing under the Homer City Code and alleging a number of due process violations. The superior court ruled that Griswold lacked standing as a matter of law and found any due process errors harmless. It also awarded the Board attorney's fees on the appeal, reasoning that Griswold did not qualify for protection from attorney's fees as a public interest litigant.

We reverse the superior court's decision on standing and vacate its award of attorney's fees.

II. FACTS AND PROCEEDINGS

In March 2014 Homer residents Terry and Jonnie Yager applied for a conditional use permit to build a covered porch ten feet into a twenty-foot setback along Pioneer Avenue in Homer's Central Business District. A public hearing before the Homer Advisory Planning Commission (the Commission) was set for the next month.

Frank Griswold is a Homer resident who owns several lots within the Business District, one of which is approximately 3,280 feet from the Yagers' property. Before the hearing he submitted two documents to the Commission, arguing that the setback exceptions required a variance rather than a conditional use permit and that provisions of the Homer City Code (HCC) allowing for setback exceptions by conditional use permits in the Business District conflicted with state law. After a public hearing the Commission approved the Yagers' conditional use permit, which it referred to as CUP 14-05.

In May Griswold filed a notice of appeal of the Commission's decision to the Homer Board of Adjustment (the Board). In his notice Griswold explained that he passed the Yagers' property "often several times a day" and that he appreciated the open space that the setback created along the street. He argued that the Yagers' permit would adversely affect the value of his Business District properties by increasing congestion in the area and that the permit would create a "pernicious precedent" for future setback exceptions in his neighborhood. Additionally Griswold said this would harm the use and enjoyment of his home.

The city clerk initially rejected Griswold's notice for lack of a legal description of the property that was the subject of the permit. The clerk later accepted Griswold's amended notice and sent out a letter to the parties explaining that she found Griswold's appeal "compliant with [HCC] Sections ... 21.93.070 and 21.93.080," provisions which respectively describe the time in which an appeal may be filed and what a notice of appeal must contain.

The letter further noted that "[o]nly persons ... who would be qualified to appeal under [HCC] 21.93.060 may participate as parties in an appeal from the Commission to the Board of Adjustment." HCC 21.93.060 defines standing to appeal from an action of the Commission to the Board, and allows appeals from "[a]ny person who actively and substantively participated in the proceedings before the Commission and is aggrieved by the action or determination."

The clerk scheduled a hearing for August 13, 2014, but it was postponed at Griswold's request until September 15. In the meantime City Planner Rick Abboud filed a brief supporting the Commission's decision, and Griswold moved to strike the brief for lack of standing.

On the morning of September 15 Griswold emailed the Board's legal advisor, Holly Wells, asking whether there would be sufficient Board members if he won his motions to disqualify certain members. Wells responded that the hearing would have to be postponed if he successfully moved to disqualify members, but Griswold protested any postponement. The city clerk then issued a notice postponing the hearing until September 29, 2014, over Griswold's objections.

Mayor Mary Wythe and all Board members were present - one by telephone - for the hearing on September 29, as were the city clerk, Griswold, and the Yagers. Wells had been replaced by Joseph Levesque as the Board's legal advisor.

After the Board heard and rejected Griswold's disqualification motions, Griswold asked if they were ready to address standing, referring to his motion to strike Abboud's brief for lack of standing. After being told that the Board had to finish preliminary issues first, Griswold asked when they would address his motion. The mayor responded, "I think that's under the jurisdictional section [of the hearing]." After the Board approved a motion to supplement the record, Griswold asserted that he had no more preliminary issues and again said that he would "like to address [Abboud's] standing." The mayor then determined that the Yagers had no preliminary issues of their own, and recessed the hearing briefly.

After the break the mayor opened the floor to questions of standing. She read from HCC 21.93.060's language regarding standing, and noted that it required an individual appellant be "aggrieved by the action or determination" from which he appealed. She recited the definition of "person aggrieved" from HCC 21.03.040:

a person who shows proof of the adverse effect an action or determination taken or made under the Homer Zoning Code has or could have on the use, enjoyment, or value of real property owned by that person. An interest that is no different from that of the general public is not sufficient to establish aggrievement.

She then asked Griswold if he had any property affected by the decision at issue and if his "use [or] enjoyment thereof affected by [the decision was] something different than ... that of anyone else in the community."

Griswold responded that his notice of appeal "was not rejected by the clerk" and had included a statement of standing that listed his properties. Mayor Wythe acknowledged Griswold's properties in the Business District, but asked him again to identify any proof of adverse impact to those properties or his enjoyment of those properties from the Commission's action. She further noted that his notice of appeal "[did] not identify ... proof that [his] properties ... [were] negatively impacted by this ... CUP." The mayor explained that she was looking for "very specific, tangible proof" of how the permit negatively impacted Griswold. Griswold responded, "[I]f there was no proof [the appeal] would have been rejected by the city clerk."

Griswold then explained that approval of the Yagers' permit would "set ... a continuing precedent for other properties in the neighborhood." "[I]f my entire neighborhood encroaches into the setbacks," he argued, "it's certainly going to affect my neighborhood, my enjoyment of walking around the Business District." Griswold explained that setbacks were meant to "provide adequate open spaces for light and air, prevent undue concentration of populations, lessen ... congestion on streets and highways, preserve and enhance the aesthetic environment of the community, and promote the health, safety and general welfare." The mayor asked if the permit would decrease the value of Griswold's property, and Griswold answered that he believed so but could not give an exact figure. But when Griswold asked in response if she could prove it would not devalue his property, the mayor said no. Griswold finally noted that no one had objected to his standing "through this whole event," and argued that standing objections were therefore waived.

The Board voted and found that Griswold did not have standing. The hearing adjourned, and the Board issued a written decision in November explaining its reasoning.

Griswold appealed the Board's decision to the superior court in December 2014. He argued that the Board erred in holding that he did not have standing; that the Board did not have the power to find that he lacked standing after the city clerk had accepted his notice of appeal; that the Board did not give him sufficient time or notice to argue the standing question; and that Wells, Levesque, and Mayor Wythe were impermissibly biased and had conspired to dismiss Griswold's appeal on standing grounds.

The superior court held that the Board had the authority to review the issue of Griswold's standing even though the clerk had accepted his notice of appeal. The court also held that Griswold had not shown that he was a "person aggrieved" under the HCC. It noted that Griswold had raised a number of due process arguments related to alleged misconduct by Wells, Levesque, and Mayor Wythe, but found no harm to Griswold because of its determination that Griswold lacked standing to appear before the Board.

The court awarded the Board $ 4,733.10 in attorney's fees for Griswold's appeal under Alaska Appellate Rule 508(e)(4). Griswold had argued that he was a public interest litigant and was exempt from attorney's fees under AS 09.60.010(c)(2). The court disagreed:

The majority of Appellant's litigation does not appear to represent others' interests. Instead, he often bases standing on his own property values without proof, as in this case. He appears to hold a personal grudge against the City of Homer; and rather than benefitting the other citizens of Homer, his litigation is costing Homer taxpayers a lot of money to defend.[ ]

Griswold now appeals, representing himself.

III. STANDARD OF REVIEW

"We resolve issues of standing ... using our independent judgment because they are questions of law involving matters of judicial policy." "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."

"A trial court's award of attorney's fees is generally reviewed for abuse of discretion." But a "trial court's application of law in awarding attorney's fees is reviewed de novo."

IV. DISCUSSION

A. Griswold Is A "Person Aggrieved" Under HCC 21.03.040.

We generally interpret standing doctrine broadly, "in favor of 'increased accessibility to judicial forums.' " But "[i]n the area of land use law, the legislature has chosen to limit standing by statute." As explained in one of Griswold's earlier cases, Griswold v. City of Homer , these provisions effectively "eliminate[ ] taxpayer-citizen standing in land use cases." But injury-interest standing was not abrogated; under AS 29.40.060(a) the legislature provides review for those "aggrieved" when "adversely affected" by the challenged city action. Deciding whether a person is "aggrieved" in a land use case thus still resembles a traditional standing inquiry - an inquiry with a long-held policy "in favor of 'increased accessibility to judicial forums.' " In light of this liberal policy, we interpret AS 29.40.050 - .060 to "promot[e] citizen access to the courts," in harmony with our long-held, expansive views of standing.

Because "[g]eneral Alaska standing law is not applicable," "we must look to the applicable statutes and ordinance[s] for guidance in determining whether [a party in a land use appeal] has standing." There is no dispute that Griswold "actively and substantively" participated in the Commission proceedings, so our analysis of standing begins with the HCC's definition of "person aggrieved." HCC 21.03.040 defines "person aggrieved" as

a person who shows proof of the adverse effect an action or determination taken or made under the Homer Zoning Code has or could have on the use, enjoyment, or value of real property owned by that person. An interest that is no different from that of the general public is not sufficient to establish aggrievement.[ ]

We held previously that Homer's standing ordinance for land use appeals is "not more restrictive than our interpretation of AS 29.40.060(a)." And the standing requirement in AS 29.40.050(a) - which requires municipal governments to provide appeals from administrative decisions - should be read to provide review to those "aggrieved" within the meaning of AS 29.40.060(a) - which provides for appeals to the superior court.

So interpreted, HCC 21.03.040 requires that a property owner make only a minimal showing to qualify as a "person aggrieved." HCC 21.03.040 requires only that the property owner "show[ ] proof " of - not prove - the adverse effect that an action under the Homer Zoning Code "has or could have on the use, enjoyment, or value of real property owned by that person." (Emphases added.) The language "shows proof" suggests the HCC does not contain an evidentiary burden, such as a requirement to show standing by a preponderance of the evidence or beyond a reasonable doubt. Rather it requires only that the property owner produce some evidence supporting a claim of impact on real property. Likewise, the language "could have" implies that the causation chain for such evidence is minimal; i.e., that the property owner's evidence supports a potential, not actual, diminution in "use, enjoyment, or value." Finally, the language provides that the detrimental impact does not have to be economic - the impact can be on the "use" or "enjoyment" of the owner's property. The HCC thus requires only that a property owner produce some evidence supporting the owner's claim that the city's action could potentially adversely affect the owner's use or enjoyment of the owner's property.

Griswold met these requirements. Griswold argued that Homer's enabling ordinance for setback reductions under conditional use permits - HCC 21.18.040(b)(4) - conflicts with state statutes and illegally circumvented another HCC provision. Griswold supported this argument in his notice of appeal by stating that when the setbacks on neighboring properties are reduced, his use and enjoyment of his property are also reduced. Griswold claimed that he lives in the same zoning district as the property for which the conditional use permit was granted and that he owns six other properties in that district, one of which is within 3,300 feet of the permit property. No one disputed this factual support; when discussing standing before the Board the mayor explained, "Okay, so, Mr. Griswold, we do have record of your properties, and ... and I'm just asking for you to identify the proof of adverse impact to those properties." But the potential impact of building into the reduced setback is some evidence that Griswold, by virtue of his ownership in the zoning district, may suffer diminished enjoyment of his property. And if Griswold's legal claim were successfully adjudicated on the merits, Griswold would be able to prevent setback reductions on all properties near or adjoining his in the zoning district, including the property in dispute. Griswold is therefore a "person aggrieved" under the HCC.

The City argues that granting Griswold standing would provide standing to any property owner in the zoning district, rendering the City's standing requirement "futile." But because reduced setbacks could potentially harm every property owner in the zoning district, every property owner in that zoning district does have standing to challenge their legality. As we explained in Kanuk ex rel. Kanuk v. State, Department of Natural Resources , "even federal law recognizes that denying injured persons standing on grounds that others are also injured - effectively preventing judicial redress for the most widespread injury solely because it is widespread - is perverse public policy." An aggrieved property owner is no less aggrieved merely because the neighbors are aggrieved as well. Although every property owner in the district has standing, this does not mean that every property owner will prevail on a claim. The individual bringing the claim must still prevail on the merits by showing that a legal remedy against such harm is available.

V. CONCLUSION

We REVERSE the superior court's judgment that Griswold lacks standing under the HCC and REMAND for reconsideration by the Homer Board of Adjustment. We VACATE the superior court's award of attorney's fees against Griswold.

BOLGER, Justice, dissenting.

BOLGER, Justice, dissenting.

I disagree with the court's opinion on the standing issue. When the legislature chose to limit appeals to a "person aggrieved" by a land use decision, it was choosing language that is used across the country to limit participation more strictly than the broad definition of interest-injury standing.

Aggrievement requires a showing of more than minimal or slightly appreciable harm. The adverse effect on a person must be substantial enough to constitute actual aggrievement such that there can be no question that the person should be afforded the opportunity to seek a remedy. To conclude otherwise would choke the courts with litigation over myriad zoning decisions where individual plaintiffs have not been, objectively speaking, truly and measurably harmed. The issue is whether a person has put forth credible evidence to show that she will be injured or harmed by proposed changes to an abutting property, not whether she simply will be "impacted" by such changes.[ ]

Aggrievement is thus a question of fact that must be resolved by a finder of fact. I would affirm the Homer Board of Adjustment because the Board reasonably concluded that Frank Griswold was not aggrieved by the Homer Advisory Planning Commission's setback decision.

I am especially concerned about the court's conclusion that Griswold, "by virtue of his ownership in the zoning district," will suffer recognizable harm from a covered porch more than a half-mile away. In a large municipality, a zoning district could contain many square miles of property. This decision thus invites obstacles to reasonable development proposals, even when the competing interest is very remote or speculative.

      HCC 21.93.060(c) (2014).

      Griswold has litigated a number of matters of land-use policy and related issues in Homer. See Griswold v. City of Homer (Griswold 2011 ), 252 P.3d 1020 (Alaska 2011) ; Griswold v. City of Homer , 186 P.3d 558 (Alaska 2008) ; Griswold v. City of Homer , 55 P.3d 64 (Alaska 2002) ; Griswold v. City of Homer , 34 P.3d 1280 (Alaska 2001) ; Griswold v. City of Homer , 925 P.2d 1015 (Alaska 1996).

      Fairbanks Fire Fighters Ass'n, Local 1324 v. City of Fairbanks , 48 P.3d 1165, 1167 (Alaska 2002). The dissent cites cases from other states to conclude that aggrievement is a question of fact. Dissent at 255. But in Alaska, standing is a question of law, not a question of fact. We decline to overrule our cases on this matter.

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

      DeVilbiss v. Matanuska-Susitna Borough , 356 P.3d 290, 294 (Alaska 2015) (quoting Bachner Co. v. Weed , 315 P.3d 1184, 1189 (Alaska 2013) ).

      Id. (quoting Bachner Co. , 315 P.3d at 1189 ).

      Kanuk ex rel. Kanuk v. State, Dep't of Nat. Res. , 335 P.3d 1088, 1092 (Alaska 2014) (quoting Trs. for Alaska v. State, Dep't of Nat. Res. , 736 P.2d 324, 327 (Alaska 1987) ).

      Griswold 2011 , 252 P.3d 1020, 1029 (Alaska 2011) (alteration in original) (quoting Earth Movers of Fairbanks, Inc. v. Fairbanks N. Star Borough, 865 P.2d 741, 743 (Alaska 1993) ); see AS 29.40.050, AS 29.40.060.

      Griswold 2011 , 252 P.3d at 1029.

      Earth Movers , 865 P.2d at 743.

      See Kanuk , 335 P.3d at 1092 (quoting Trs. for Alaska , 736 P.2d at 327 ); see also Coghill v. Boucher , 511 P.2d 1297, 1304 (Alaska 1973) (refusing to limit standing of registered voters to challenge vote-counting regulations due to "the public's vital interest in maintenance of the integrity of vote-tallying procedures").

      Kanuk , 335 P.3d at 1093.

      Earth Movers of Fairbanks, Inc. , 865 P.2d at 743.

      HCC 21.93.060(c) (granting standing to appeal to the Board to "[a]ny person who actively and substantively participated in the proceedings before the Commission and would be aggrieved if the ... determination being appealed were to be reversed on appeal").

      HCC 21.03.040 (2014).

      Griswold 2011 , 252 P.3d 1020, 1028 (Alaska 2011). In that case we examined a prior version of the HCC, but the previous version was substantively identical to the current code. Id. at 1028, n.28 ; compare former HCC 21.68.020(c) (2011) (requiring a person to show proof of "adverse effect ... on the use, enjoyment, or value" of his or her real property to be considered "aggrieved") with HCC 21.03.040 (2014) (same).

      Earth Movers , 865 P.2d at 743.

      It is the Homer Code, which can be as liberal or restrictive as Homer decides to make it, that establishes whether there is standing. As is true when we interpret any statute, we do not create a new definition but rather interpret and apply the statute. Our interpretation of "aggrieved" thus relies upon the statute in which it appears: section 21.03.040 of the Homer Code.

      Griswold also argues he has standing because the city clerk accepted his notice of appeal, constituting a factual finding of standing to which the Board must defer. But standing is a question of law, not fact, and the HCC expressly gives the Board authority to make findings on the question of a person's standing. See Law Project for Psychiatric Rights, Inc. v. State , 239 P.3d 1252, 1254-55 (Alaska 2010) ; HCC 21.93.510(b) (2014). The Board was not required to regard the clerk's acceptance of Griswold's notice of appeal as a decision on the issue of standing and it is not relevant to our determination that he has standing. Because the Board found Griswold lacked standing, it did not address his arguments on the legality of HCC 21.18.040(b)(4), so we need not address whether the Board has jurisdiction to determine the legality of its own code.

      HCC 21.18.040(b)(4) provides in full: "If approved by a conditional use permit, the setback from a dedicated right-of-way, except from the Sterling Highway or Lake Street, may be reduced." HCC 21.18.040(b)(1) provides in turn: "Buildings shall be set back 20 feet from all dedicated rights-of-way, except as allowed by subsection (b)(4) of this section." Subsection (b)(4)'s invalidation would thus result in a mandatory 20-foot setback requirement under subsection (b)(1).

      Griswold cites two law review articles as evidence that the setback reduction could also negatively affect the value of his property. See William K. Jaeger, The Effects of Land-use Regulations on Property Values , 36 Envtl. L. 105, 106, 115 (2006) ; Richard K. Green, Land Use Regulation and the Price of Housing in a Suburban Wisconsin County , 8 J. Housing Econ. 144, 156 (1999).

      The superior court reasoned that Griswold "could have hired an appraiser ... to determine the [permit]'s effect, if any, on [Griswold]'s property values," an argument the City echoes on appeal. But HCC 21.03.040 does not require an appraisal showing a decrease in property value to demonstrate standing. By the code's own language the injury may be to a property owner's "use" or "enjoyment" of the property rather than its value; moreover, "show[ing] proof" of a diminution in value does not necessarily require a professional appraisal. Cf. Olivera v. Rude-Olivera , 411 P.3d 587, 592-93 (Alaska 2018) (upholding real property valuation based on property owner's testimony over argument that valuation was much higher than tax-assessed value).

      This basis for injury-interest standing remains distinct from taxpayer-citizen standing because each property owner in the zoning district has an interest that goes beyond being a "suitable advocate" of issues "of significant public concern" as required for taxpayer-citizen standing. Kleven v. Yukon-Koyukuk School Dist. , 853 P.2d 518, 526 (Alaska 1993). All of the property owners in the zoning district have the potential injury to their property values and enjoyment; this is an adverse effect not felt by all taxpayer-citizens.

      335 P.3d 1088,1094 (Alaska 2014) (citing Massachusetts v. EPA , 549 U.S. 497, 522, 127 S.Ct. 1438, 167 L.Ed.2d 248 (2007) ).

      We recognize the dissent's concern that a zoning district in a large municipality may be so large that allowing every property owner in the district to challenge a zoning decision could "invite[ ] obstacles to reasonable development." Dissent at 255. But there is a distinction between a challenge to the legality of a zoning regulation that affects every property owner in a district and a challenge to a particular zoning decision that, although valid under the regulations, wrongly affects certain parcels within the district. The former can and should be available to each property owner; the latter can only succeed if the property owner can show the different and harmful impact upon the particular property.

      See, e.g. , Spendlove v. Anchorage Mun. Zoning Bd. of Exam'rs & Appeals , 695 P.2d 1074, 1076 (Alaska 1985) (affirming zoning enforcement prohibiting mineral resource extraction despite existence of harm to individual property owner).

      Because we are reversing on the basis of standing, we do not address Griswold's fair notice claims.

      Because we are reversing and remanding, attorney's fees must also be vacated. In the event the superior court finds against Griswold and attorney's fees are again an issue, an analysis must be conducted under AS 09.60.010(c). The former public interest litigant doctrine on which the superior court relied was abrogated by the 2003 statute's creation of "constitutional claimants." Ch. 86, § 2, SLA 2003; see Alaska Conservation Found. v. Pebble Ltd. P'ship , 350 P.3d 273, 274 (Alaska 2015) ("Alaska Statute 09.60.010 was enacted to abrogate our previous common law public interest litigation attorney's fees framework and replace it with a narrower constitutional litigation framework.").

      AS 29.40.060(a).

      8A Eugene McQuillin The Law of Municipal Corporations § 25:354 (3d ed.) (footnotes omitted).

      See Trimar Equities, LLC v. Planning & Zoning Bd. of City of Milford , 66 Conn.App. 631, 785 A.2d 619, 622 (2001) ("Aggrievement is an issue of fact ... for the trier of the facts."); Kenner v. Zoning Bd. of Appeals of Chatham , 459 Mass. 115, 944 N.E.2d 163, 168 (2011) ("Standing essentially becomes a question of fact.").

      Opinion at 254.


author: WINFREE, Justice.

text:
    In the MATTER OF the ESTATE OF Jerry HATTEN.
    Supreme Court No. S-16402
    Supreme Court of Alaska.
    April 26, 2019
    Andrew J. Fierro, Law Offices of Andrew J. Fierro, Anchorage, for Appellant Beverly Toland.
    Sonja Redmond, Law Office of Sonja Redmond, Soldotna, for Appellee Katrina Hatten, Personal Representative of the Estate of Jerry Hatten.
    Before: Bolger, Chief Justice, Winfree, Stowers, Maassen, and Carney, Justices.
   WINFREE, Justice.

I. INTRODUCTION

A man died intestate after cohabiting for over 20 years with a woman. The decedent had named the woman as the sole beneficiary of his individual retirement account, but he did not provide for her to inherit any of his other assets. She sought a larger share of his estate, arguing that (1) the decedent had promised to support her financially if she moved to Alaska to live with him and (2) the court should divide the decedent's property according to their intent because they were domestic partners. A special master recommended rejecting her claims, and the superior court adopted the master's recommendation. Because we conclude that the superior court did not err in interpreting the scope of the parties' alleged contractual agreement or in rejecting the woman's domestic partnership claim, we affirm.

II. FACTS AND PROCEEDINGS

A. Facts

Jerry Hatten and Beverly Toland met in California in 1989. Hatten, who lived in Alaska, returned to California in 1992 and reconnected with Toland. According to Toland, Hatten asked her to leave her job, friends, and family behind to live with him in Kasilof. Hatten purportedly assured her that if she relocated "he would take care of [her]" and that she "wouldn't have to work." Toland agreed, and she moved into the house that she would occupy with Hatten for over 20 years.

Hatten was a commercial fisherman and paid for most of the couple's shared expenses. Toland worked at various jobs, first at a grocery store, then at a cannery, and later as a bartender. She also saw to domestic chores, such as cooking and cleaning. According to Toland, neither she nor Hatten had any other romantic partners, there was never any period of physical separation between them, and they shared a bed until the final years of Hatten's life, when he was experiencing discomfort from various ailments and opted to sleep on the couch.

Neither Toland nor Hatten wanted to formally marry; each had previous marriages ending in divorce. Hatten's and Toland's financial and legal affairs consequently were less intertwined than their shared daily life. They had two joint credit cards, but they maintained separate checking accounts. Most significantly, Hatten exclusively owned the house they lived in.

Hatten built the house in 1978 and paid off the building loan shortly after Toland's arrival in Alaska. In 1998 he obtained a loan to purchase the leased land where he had built the house, and he subsequently paid off that loan around 2007. A 1998 appraisal valued the property at $ 190,800. Toland did not contribute to the loan payments nor was she listed on utility accounts, which Hatten paid. At no time did Hatten grant title to Toland. Hatten has two adult children from his previous marriage, a daughter and a son. Although Hatten's daughter had for some time lived outside his home, it remained a primary residence for his son, who is physically disabled.

Toland gave Hatten a will kit five years before his death. Hatten suffered from chronic obstructive pulmonary disorder, and when he battled pneumonia in January 2013 his friends and family asked how he planned to take care of his estate and urged him to create a will. In February Hatten named Toland the sole beneficiary of his $ 194,000 Edward Jones IRA account. The beneficiary designation form lists Toland's relationship to Hatten as "Domestic Partner." A month later Hatten suffered a heart attack and died. He left no will.

B. Proceedings

Toland filed a claim against the estate in September 2013, seeking, in relevant part, a "fair division of the value of the parties' [domestic partnership] assets ... taking into account [Hatten's] promise to take care of [her] for the rest of her life." The estate opposed her claim, requesting that it be denied in full and that Toland be required to vacate Hatten's residence.

A probate master conducted an evidentiary hearing to consider Toland's claims. The parties and witnesses offered conflicting testimony regarding the nature of Toland and Hatten's relationship. Some of the estate's witnesses described the relationship as one of convenience, not that of two romantic or life partners. They pointed to the fact that Hatten never claimed Toland as a dependent on his tax returns but once actually claimed her as a housekeeper. But Toland and others close to the pair described their relationship as that of a loving husband and wife, less the paperwork.

Testimony about Hatten's intentions regarding his property also conflicted. The estate's witnesses testified that Hatten was private about his financial affairs and never intended to give Toland the house. According to Hatten's daughter, her father said, "[h]is assets and his money and his things were none of our business," and when she asked if he had something in order Hatten replied, "don't worry, you and [your brother] will be fine, otherwise, it's none of your business."

Toland and other witnesses painted a very different picture of Hatten's intentions. Toland testified that Hatten told her "several times" he was going to make a will and "he wanted [her] to have [the] house" so that she could sell it, because it was too expensive and difficult for her to manage its upkeep alone. Toland stated that she had given Hatten a will kit, but she described him as a "procrastinator" when it came to paperwork. Toland had been unaware that Hatten had made her the sole beneficiary of his IRA; she testified that "[a]t one point, he told me that I was going to get 52% and his three grandsons were going to get the [rest] .... [A]ll of a sudden, he - he decided to change it. ... I didn't even know about it until after the fact." According to Toland, when she saw the paperwork and asked Hatten about it, he explained that his recent bout with pneumonia"opened his eyes that it was time for him to start taking care of things" and he was "going to get a will going."

Hatten's cousin recalled speaking with Hatten about a will "three or four times" as his health declined, and he had said, "I promise you that [Toland] will always have this roof over her head. This is her home." Another of Hatten's cousins testified Hatten said that Toland was "going to be taken care of" and that he had "been seeing to it a little bit at a time." Finally, a neighbor who worked in real estate testified to a discussion she had with Hatten a month before he died, in which he both asked her for help with the IRA account and inquired about what he needed to do to get the house in Toland's name.

The probate master found that since "at least 1994," Hatten and Toland "lived together as a committed couple in [Hatten's] home." However, beyond the parties' general statements the master concluded that, "little is known about [Hatten's] specific intentions." The master found that, although Hatten made inquiries about transferring title of his house to Toland and received a will kit five years prior to his death, he "took no additional steps to transfer title, write down his intentions, or create a trust or will." Instead, approximately a month before his death, he named Toland a "100% beneficiary of his $ 194,000 Edward Jones IRA account."

The master concluded that Alaska's intestate succession laws do not contemplate the unmarried domestic partner. The master noted that the cases Toland cited "authorize courts to divide unmarried cohabitants' property according to the parties' intentions" upon separation but concluded that "[n]one provide direct authority regarding property division after death." The master concluded the "subjective intentions" of a decedent with respect to a cohabitant are subordinate to Alaska's statutes governing intestate succession.

The master also suspected that Alaska's statute of frauds does not permit enforcement of an oral lifetime support contract against an estate, but assumed to the contrary. The master stated that "Hatten's intentions, or the scope of the parties' contract, are hard to discern." The master noted that "Hatten's actions speak more loudly than his words." The master found it significant that "for more than 20 years, [Hatten] chose not to marry, create a will, establish a joint bank account, or put his house in [Toland's] name" but that when his health declined, he took affirmative steps to name Toland as his IRA beneficiary. Hatten's disabled son had lived in the house for decades; absent any evidence that Hatten wished to disinherit his children, this tipped the scales in favor of the inference that his not creating a will was intentional. The master concluded that Hatten intended to provide for Toland through the IRA and to leave the house for his children.

The superior court adopted the master's findings and conclusions of law and denied Toland's claim against the estate. Toland objected to the report and order. The court considered her objections in another written order and again concurred with the master's report. The court highlighted the master's finding that although Hatten was given every opportunity to leave Toland the house by will or deed he chose not to do so, opting to instead name her as the beneficiary of his IRA account.

Toland appeals. She argues that the court erred by denying her contract claim, that she and Hatten formed an enforceable lifetime support contract, and that the court's findings about Hatten's intent were clearly erroneous. She also asserts that the superior court erred by not recognizing her property rights arising from her domestic partnership with Hatten.

III. STANDARD OF REVIEW

We review the superior court's findings of fact for clear error, and we will reject a factual finding "only when we are left with a definite and firm conviction based on the entire record that a mistake has been made." "[W]hen a trial court's decision of a factual issue depends largely on conflicting oral testimony, the trial court's competence to judge credibility of witnesses provides even a stronger basis for deference by the reviewing court."

"[W]e use our independent judgment for legal issues and review de novo the court's interpretation of the law." We apply our independent judgment to questions of statutory interpretation.

IV. DISCUSSION

A. The Superior Court's Findings Of Fact Regarding Toland's Contract Claim Are Not Clearly Erroneous.

Toland contends that the testimony and record demonstrate the existence of a lifetime support contract between herself and Hatten and that under the contract's terms upon his death he intended for her to keep the house in addition to the IRA she received. The master found that "Hatten's intentions, or the scope of the parties' contract, are hard to discern." The master ultimately concluded that the evidence did not show Hatten ever specifically promised or intended to give Toland the house as a means of fulfilling the purported support contract. The superior court adopted these findings in a May 2016 order. Toland asserts that the findings underlying the court's order are clearly erroneous, specifically that Hatten: (1) was guarded about his financial affairs; (2) made a variety of different statements to different people; (3) managed his finances competently; (4) actively chose not to make a will; and (5) knew that the house was in his name alone but took no affirmative steps to ensure Toland received it upon his death.

We conclude that neither the court's findings nor its ultimate determinations are clearly erroneous. Evidence in the record about Hatten's statements regarding his financial affairs suggests inconsistencies and that he was vague and guarded. Hatten's daughter testified that he stated his financial affairs were "none of [her] business" but that she and her brother would be fine. Hatten's sister testified that she had asked Hatten several times if he had a will, and he assured her, "[Y]es, don't worry about it, I've got it all taken care of." According to her, Hatten never indicated that he intended for Toland to keep the house. Hatten's son testified that his father "said he was going to end up selling [the house]."

Witnesses friendly to Toland testified that Hatten intended to financially provide for her, but none could specify what he ultimately decided. One testified that Hatten said Toland would have "this" particular roof over her head; another stated that Hatten had simply said he was taking care of things "a little bit at a time," and the witness "assumed" that Hatten had made a will; and a third testified that Hatten had inquired both about the IRA and "what he would have to do" to get the house in Toland's name after he died. Even Toland's testimony suggested Hatten's guardedness; for example, he changed his IRA beneficiary without her knowledge. The court's finding that Hatten was "somewhat private" about his financial affairs is not clearly erroneous.

Nor is the finding that Hatten managed his finances competently clearly erroneous. The record shows he cared financially for his property, named Toland as a beneficiary on his IRA, and maintained several bank accounts. Although Toland described Hatten as a "procrastinator," a finding that he managed his affairs "competently" and intentionally is not clearly erroneous.

The court's inference that Hatten actively chose not to make a will is also grounded in the evidence. Hatten was aware of the need to create a will. He knew his health was declining. Friends and family testified that they had regularly raised the issue of creating a will with Hatten; Toland went so far as providing him a will kit. Hatten was as capable of creating a will as he was of naming Toland the beneficiary on his IRA account; he chose to do the latter but not the former.

We finally note that according to Toland's account of her agreement to move to Kasilof, Hatten did not specifically promise to give her title to his house at that time. Despite evidence that Toland worked throughout her relationship with Hatten, Toland testified that Hatten had promised "he would take care of [her]" and that she "wouldn't have to work." Although Toland testified that Hatten at one point told her that he wanted her to have his house, she also claimed that he had said she should sell the house because she would not be able to afford the expensive upkeep it required. Even in Toland's testimony, Hatten was not promising her a specific place to live, but an asset with which she could support herself. It was not error for the superior court to conclude that, assuming the existence of an enforceable lifetime support contract, Hatten fulfilled the contract by giving Toland his IRA account - roughly equivalent to the 1998 value of his property.

In sum, Toland did not show that the scope of the alleged lifetime support contract included giving her the house. Nor did Toland show that Hatten failed to live up to his alleged promise to care for her - he left her a substantial sum by naming her the sole beneficiary of his IRA. We conclude that the superior court's findings about Hatten's intent and the scope of the alleged contract are not clearly erroneous.

B. The Superior Court Did Not Err By Declining To Apply A Domestic Partnership Property Analysis To Divide Hatten's Property.

Toland also argues that the superior court erred by not applying a domestic partnership property analysis and distributing Hatten's property based on Hatten's alleged intent. We conclude that the court was correct to distinguish domestic partnership property cases on the basis that those cases involved inter vivos separations. We take this opportunity to clarify the relevant legal framework.

Alaska has distinct property division schemes that apply depending on when a relationship ends. If a marriage ends during the lifetimes of the spouses, courts apply statutory marital property principles and equitably distribute the spouses' property. During the marriage, spouses do not gain a present property interest in marital property simply by virtue of their relationship; that interest vests only at divorce. If a domestic partnership ends during the lifetimes of the partners, no specific statutes control the distribution of partnership property. This court instead has formulated a common law analysis to distribute the partnership property according to the partners' shared intent. This partnership property interest, like a marital property interest, vests only at the dissolution of the partnership.

If a relationship ends at the death of one member, Alaska's probate code comprehensively governs the rights of both surviving spouses and domestic partners. A surviving spouse takes all, or most, of a deceased spouse's intestate estate; a surviving spouse who is dissatisfied with a deceased spouse's will can choose to receive a statutory elective share of the deceased's augmented estate. A surviving domestic partner, in contrast, inherits none of a deceased partner's estate under the probate code. And, unlike in the case of an inter vivos separation, the probate code has provisions disposing of all of a deceased partner's estate, whether the partner died testate or intestate. There is no "gap" to fill with a common law scheme that would distribute the deceased partner's property according to the partners' shared intent. If the deceased partner did not provide for the surviving partner through a will, the surviving partner will not inherit the deceased's property as a testamentary matter.

Both surviving spouses and domestic partners can contest whether particular property is properly included in the deceased's estate. The probate code does not address this issue, and so we apply equitable and property law principles to determine ownership in the event of a dispute. We have explicitly rejected the argument that "divorce-like marital property concepts and equitable distribution should apply in probate proceedings" to determine a surviving spouse's ownership of property. Instead, for property that is titled in the name of one spouse alone, we apply a rebuttable title presumption. The title presumption can be overcome by evidence of misconduct justifying the imposition of a constructive trust or by evidence that the party not appearing on the title actually acquired an interest in the property. In the case of real property, "th[e] presumption may not be overcome by mere surmise and conjecture."

Applying this framework disposes of Toland's domestic partnership arguments. Because Toland and Hatten's relationship ended when Hatten died, Alaska's probate code, not a common law domestic partnership property division scheme, controls the distribution of Hatten's estate. Domestic partners are not among the heirs who inherit property from an intestate decedent. Toland's claim thus must fail.

Toland argues that this court should follow the Washington Supreme Court's decision in Olver v. Fowler and apply the same property division scheme to all domestic partnership separations regardless of when they occur. She contends that, consistent with Olver , this court should hold that domestic partnership property interests vest when the partners have the requisite intent. But Toland ignores a key distinguishing feature - Washington is a community property state, and spouses acquire "a present , undivided interest in the couple's community property." Domestic partners in Washington acquire a similar interest "by analogy." It follows then that, at the death of one partner in Washington, the surviving partner is entitled to retain the property interests properly acquired during the parties' lifetimes - even if that property is titled in the deceased partner's name alone. In Alaska spouses and domestic partners do not gain a present property interest in separately titled property merely by virtue of their relationships. Their interests vest only at an inter vivos separation. If that separation never occurs during the spouses' or partners' lifetimes, the property interest never vests.

Toland also argues that this court should apply, "by analogy," Alaska's statutes governing the ownership of jointly acquired real property by married couples. Even if we accept that a statute governing married couples should also apply to domestic partners, the statutes Toland cites are inapposite. They apply only to jointly acquired real property, and Toland has acknowledged that Hatten independently acquired and paid for his house and the land where it is located. And Toland has failed to rebut the presumption that Hatten is the owner of his separately titled real property. She has not proven that she acquired any interest in that property by contract, as described above, and she has not alleged that Hatten engaged in any misconduct justifying imposition of a constructive trust on his property.

V. CONCLUSION

The superior court's decision is AFFIRMED.

      Dan v. Dan , 288 P.3d 480, 482 (Alaska 2012) (quoting In re Protective Proceedings of W.A. , 193 P.3d 743, 748 (Alaska 2008) ).

      Dixon v. Dixon , 407 P.3d 453, 456-57 (Alaska 2017) (alteration in original) (quoting Vezey v. Green , 35 P.3d 14, 20 (Alaska 2001) ).

      Riddell v. Edwards , 76 P.3d 847, 852 (Alaska 2003).

      N. Slope Borough v. Brower , 215 P.3d 308, 311 (Alaska 2009).

      Toland argues that the master erred by surmising that Alaska's case law and statute of frauds preclude enforcement of a lifetime support contract against an estate. But the master "assum[ed] for the sake of argument" that Toland's contract claim against Hatten's estate could be considered and proceeded accordingly. Finding no error with the court's interpretation of the alleged contract between Toland and Hatten, we decline to address her arguments regarding enforceability of lifetime support contracts in Alaska. And to the extent Toland argues Hatten orally promised or assured her after January 1, 1997 that he would give her the house or other property upon his death, we note AS 13.12.514(a) renders such oral agreements unenforceable. See Cragle v. Gray , 206 P.3d 446, 451 (Alaska 2009) (holding under AS 13.12.514(a) that "oral succession contracts that are not reduced to writing are unenforceable").

      See Tomal v. Anderson , 426 P.3d 915, 922-24 (Alaska 2018) (setting out legal standards for domestic partnership property distribution).

      See, e.g. , Tolan v. Kimball , 33 P.3d 1152, 1155 (Alaska 2001) (holding in dispute between unmarried cohabitants that "intent of the parties should control the distribution of property accumulated during the course of cohabitation").

      Burts v. Burts , 266 P.3d 337, 342 (Alaska 2011) ("Alaska uses a statutory scheme of equitable division codified in AS 25.24.160(a)(4).").

      See Kessler v. Kessler , 411 P.3d 616, 619 (Alaska 2018) ("The distinction between marital property and separate property is simply a way of categorizing property for purposes of division upon divorce, not a statement of property rights during marriage."); Gottstein v. Kraft , 274 P.3d 469, 476 n.26 (Alaska 2012) ("[M]arital property exists only within the equitable distribution context of a divorce action.").

      See Tomal , 426 P.3d at 922-23.

      Cf. Gottstein , 274 P.3d at 476 n.26.

      See AS 13.06.005 -.16.705.

      See AS 13.12.102.

      See AS 13.12.202.

      See Pestrikoff v. Hoff , 278 P.3d 281, 286 (Alaska 2012) (applying title presumption to determine ownership of property alleged to be included in deceased wife's estate).

      Id.

      See id.

      See id.

      See, e.g. , Sugg v. Morris , 392 P.2d 313, 316 (Alaska 1964) (holding that plaintiff failed to demonstrate her equitable interest in real property because she did not prove how much she had contributed toward down payment and mortgage payments).

      See Pestrikoff , 278 P.3d at 284 (quoting St. Paul Church, Inc. v. Bd. of Trs. of the Alaska Missionary Conference of the United Methodist Church, Inc. , 145 P.3d 541, 554 (Alaska 2006) ).

      See AS 13.12.102 -.103.

      161 Wash.2d 655, 168 P.3d 348, 356 (2007) (en banc) (holding that jointly acquired property of deceased domestic partners should be divided according to their equitable interests in property).

      Id. (emphasis added). "Community property" includes property acquired during the parties' relationship with community funds but titled in the name of only one spouse. See id.

      Id.

      See Gottstein v. Kraft , 274 P.3d 469, 476 n.26 (Alaska 2012).

      See id. ; Kessler v. Kessler , 411 P.3d 616, 619 (Alaska 2018).

      See Gottstein , 274 P.3d at 476 n.26.