text:
    Dewana G. TURNER, Bonita H. Hixson, Yolanda P. Monroe, on behalf of themselves and all others similarly situated, Petitioners, v. ALASKA COMMUNICATIONS SYSTEMS LONG DISTANCE, INC., and Alaska Communications Systems Group, Inc., Respondents.
    No. S-10692.
    Supreme Court of Alaska.
    May 23, 2003.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   Order

It Is ORDERED:

Petitioners, representatives of a plaintiff class that is suing Alaska Communications Systems Long Distance, Inc. and Alaska Communications Systems Group, Inc. for altering a long distance calling plan, contest the wording of the superior court's class notice. We granted the plaintiffs' petition for review on October 29, 2002 and heard oral argument on May 14, 2008. The specific language that is the subject of this petition suggests that absent class members who do not opt out of the class may be held liable under Civil Rule 82 for defendant's attorney's fees if the class suffers an adverse judgment. The contested language of the notice states:

In Alaska, the losing side in a lawsuit is generally required to pay a portion of the winning side's costs and attorney's fees. Whether this rule applies to all members of a class action is uncertain.... Thus if you cho[folse to remain a member of the class there is a possibility that you will be required, if the class loses, to pay some of ACS's costs and attorney's fees incurred in opposing this litigation.

We hereby REVERSE the order of the superior court approving the disputed language in the class notice and hold that absent class members who stand to gain only small monetary compensation and who remain passive class members throughout the litigation may not be held liable for a successful defendant's attorney's fees. An opinion setting out the rationale of our decision will follow. Jurisdiction is returned to the superior court pending issuance of a published opinion so that the litigation may proceed.

Entered at the direction of the court.

      . Counsel for the plaintiff class indicates that the award of damages for each individual class member will range from zero to a thousand dollars. We therefore need not address the situation of absent class members who stand to receive large monetary awards.

      . This ruling does not address the undecided question of whether absent class members who decide to become active at some point during the litigation are liable for Rule 82 attorney's fees.


source: Caselaw Access Project

author: CARPENETI, Justice.

license: Public Domain

text:
    ADOPTION OF L.E.K.M., A Minor Child Under the Age of 18 Years.
    No. S-10199.
    Supreme Court of Alaska.
    May 30, 2003.

      William Grant Callow, Law Offices of W. Grant Callow, Anchorage, for Appellants.
    Vanessa H. White and Lynda A. Limon, Anchorage, for Appellees.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

CARPENETI, Justice.

I. INTRODUCTION

Mona and Jules M. and Emma and Rod M. appeal the superior court's dismissal of their adoption petitions and the award of primary legal and physical custody of their granddaughter and niece to Elsa and Dillon C., family friends. They ask us to apply the relative-placement preference found in AS 47.14.100(e) to the adoption proceedings and argue that the superior court made erroneous factual and legal findings. Because AS 47.14.100(e) has previously been held not to apply to adoption proceedings, and because we find no clear error or abuse of discretion, we affirm the decision of the superior court.

II. FACTS AND PROCEEDINGS

This case is a contested adoption proceeding in which three different married couples are seeking to adopt Lucy M., an orphan. The first couple are Lucy's paternal grandparents, appellants Jules and Mona M. The second couple are Lucy's paternal aunt and uncle, appellants Emma and Rod M. The third couple, who have had custody of Lucy since she was orphaned, are appellees Elsa and Dillon C., Lucy's mother's best friends and Lucy's day care providers when her parents were alive. All the parties live in Anchorage.

The case arises out of a tragic murder-suicide on July 24, 1999 in Anchorage. Cole M. shot and killed his girlfriend, Sally D., and then himself. Sally's body fell on and smothered their three-and-a-half-month-old daughter Dolly M. Only Dolly's identical twin sister Lucy survived. Anchorage police placed Lucey with Elsa C. at the advice of Sally's stepfather. The police also filed a Report of Harm with the Division of Family and Youth Services (DFYS) on July 26, 1999. DFYS decided to take legal custody of Lucy, but left her in the home of the C.s, probably because Elsa C. had been Lucy's full-time day care provider during the previous month and because Sally D. had left the twins with Elsa on several overnights, whereas the M.s had not had similar contacts with Lucey on a daily or overnight basis. Lucey was adjudicated a child in need of aid (CINA) on August 23, 1999.

After intervening in the CINA case, the C.s filed a petition for adoption in November 1999. The elder M.s cross-petitioned for adoption in January 2000 and filed a Motion for Order Vacating the CINA Adjudication and Directing that the Child be Placed with her Relatives, The younger M.s filed a eross-petition for adoption in February 2000.

A hearing was held on February 3, 2000 to determine the course of the case, and at that time the parties agreed that because there were three families eager to adopt Lucy, the involvement of DFYS in her case was not necessary. The CINA case was therefore closed. An interim custody order provided that Lucey spend five days per week with the C.s and two days with all of the M.s, which was a continuation of the visitation schedule that had been designed cooperatively by the parties shortly after the deaths of Lucy's parents.

Superior Court Judge John E. Reese heard the adoption trial over seven days in April 2001. At the close of trial, Judge Reese found that all parties would have made fine parents, making the final decision "as hard as anything I've ever had to deal with here." In its findings of fact and conclusions of law, the superior court found that the C.s were Lucy's "home base" but that Lucey also had a vital relationship with the M.s and must not be prevented from seeing them. Accordingly, the court found, pursuant to AS 25.23.120(d), that it was in Luey's best interest to dismiss the adoption petitions and enter an order granting primary legal and physical custody to the C.s and weekly visitation to the M.s as a group. This appeal of the adoption case followed.

III STANDARD OF REVIEW

An adoptive placement determination should be reversed only when "the record as a whole reveals an abuse of discretion or if controlling factual findings are clearly erroneous." The trial court abuses its discretion if it considers improper factors, fails to consider relevant statutory factors, or assigns disproportionate weight to some factors while ignoring others. In an adoption case, the court's factual findings are reviewed under the "clearly erroncous" standard A finding is clearly erroneous when "a review of the entire record leaves us firmly convinced that a mistake has been made.

We do not review issues not raised at trial except for plain error, that is, " 'where an obvious mistake has been made which creates a high likelihood that injustice has resulted." "

We apply our independent judgment to questions of law and "adopt the rule of law most persuasive in light of precedent, reason, and policy."

IV. DISCUSSION

A. Alaska Statute 47.14.100(e)(1) Cannot Be Imported into AS 25.23.120.

The M.s contend that we should develop Alaska law by holding that AS 47.14.100(e)(1), which generally prohibits the foster placement of a child who has relatives (by blood or marriage) who are willing to care for the child, must be applied to AS 25.23, which governs adoption procedures. On this basis, they request that we reverse the trial court's determination and instead grant adoption of Lucey to them. This argument is frequently made in adoption proceedings regarding children in need of aid, and we have repeatedly found that "there is no blood-relative preference in adoption cases." Alaska Statute 47.14.100(e) is limited by AS 47.14.100(f), which states in part, "Inlothing in this subsection or in (e) of this section applies to child placement for adoptive purposes." Subsection 100(e) allows blood relatives to petition for initial placement of a child in need of aid, and in W.E.G. we held that grandparents wishing to exercise this preference should petition DFYS for custody or ask for de novo review of DFYS's decision if their request is denied. Subsection 100(e) binds only DFYS; we have held that the interests of the child in need of aid require the application of different statutory standards from those in other family law situations. Just as children in need of aid may have relationships with foster parents that may need to be protected by the state in adoption proceedings, we have also held that a non-relative with a significant relationship to a child may have equal standing with the child's own parent to request custody of the child before the court. In a private adoption case, such as this one became after the CINA case was dismissed, there are many reasons why the court may perceive adoption by a non-relative to be in the best interest of the child, and we see no basis on which to interfere with the statutory scheme as it exists.

The M.s also contend that because it was never shown clearly and convincingly that placement of Lucy with them, her blood relatives, would result in physical or mental injury to her under AS 47.14.100(e), the superior court erred in awarding custody to the C.s, who are not relatives. However, as explained above, AS 47.14.100(e) does not apply to this case, and therefore the "clear and convincing" showing of "physical or mental injury" is not applicable. In an adoption case, the relevant factors are the consent of the parents and the best interests of the child.

Finally, the M.s argue that the failure to enter an adoption order in the case has resulted in a foster care situation, that the C.s are not licensed foster parents, and that they do not meet any of the exceptions established in AS 47.85.015(b) for unlicensed day care providers. Foster care arrangements are created by DFYS pursuant to AS 47.14.100, not by judges in adoption cases pursuant to AS 25.23.120(d). The superior court's order did not violate any foster care statute.

B. The Superior Court Did Not Clearly Err in Its Factual Findings.

The M.s challenge two of the superior court's factual findings as clearly erroneous. Because a review of the entire record does not leave us firmly convinced that a mistake has been made in either instance, we reject the challenge.

1. Dillon C.'s teenage mental health

The M.s argue that the superior court was clearly erroneous in its finding that aspects of Dillon C.'s mental health history, which involved in- and out-patient treatment for post-traumatic stress disorder in 1990, were "treated and no longer an issue" at the time of trial. The M.s argue that, based on later incidents in which Dillon C. shouted at co-workers (incidents for which he was dismissed from his job but later re-hired by the same employer), it was error for the court to find that Dillon C.'s mental health poses no obstacle to the custody order that the court entered. The superior court's finding was supported by the testimony of a psychologist, Dr. Harper, who evaluated Dillon C. and testified that Dillon did not suffer from a personality disorder or any other condition affecting his ability to be a parent. The finding was not clearly erroneous.

The M.s attack Dr. Harper's involvement with the case on several grounds: that he gave Dillon C. the MCMI-III personality test instead of the MMPI-II test, that he read only a small part of Dillon's 500-page file from his treatment at Charter North, that he did not disclose that he was briefly involved with Dillon's treatment there, and that he was added to the witness list late. However, there was evidence that tended to show that the MCMI-III test was the more appropriate test because of Dillon's prior medical history and that Dr. Harper read the most important parts of a file that spanned five months of ongoing treatment and would have included any reports on art therapy and blood medication level checks. Moreover, the superior court denied the M.s' motion to preclude Dr. Harper from testifying at trial, finding that all parties had submitted their witness lists late, that they had known of Dr. Harper's involvement in the case for months, that the failure to disclose Dr. Harper's involvement in Dillon's 1990 treatment revealed no ethical breach but rather a memory lapse, and that the M.s' objections went to the weight of his testimony rather than its admissibility. We find no error in the superior court's treatment of the issues surrounding Dr. Harper's testimony.

2. Adequate income

The M.s allege that the court's finding that the C.s were financially able to care for Luey was clearly erroneous. They contend (1) that the custody investigator did not | fully analyze the C.s' financial status, (2) that the C.s generally had low balances in their checking account, and (8) that their adoption home study was not current and it thereby failed to provide adequate financial information. We reject their claim of error.

First, while the custody investigator merely stated her conclusion that all the competing families could meet Lucy's material needs, the author of the adoption home study devoted sufficient attention to the financial issues. She reported that both Elsa and Dillon were employed, found that they provided a clean and comfortable home on their present resources, and noted that they had been referred to the local WIC (Women, Infants, and Children) program that provided assistance in meeting children's nutritional needs. The adoption home study similarly concluded that the C.s provided a suitable home. The court had adequate information on this issue.

Second, that the balances in the C.s' bank accounts at any one time were low is not indicative of their ability to provide for Lucy. What is important is that they did provide for the child's needs. Based on the evidence before it, the superior court did not clearly err in finding that they did provide for the child's needs. The law requires no more than that the proposed parents be able to meet the child's basic needs." At the time of trial, Elsa C. had a home day care business, and Dillon C. made about $18.50 per hour at his full-time job.

Finally, the M.s misinterpret the relevant law regarding home studies. Alaska Statute 25.28.100(e), which the M.s rely upon in arguing that the home study was not current, requires only that a home study be performed within thirty days of the selection of the person who will perform the study, not within thirty days of the final adoption hearing. The M.s have made no showing that this requirement was not met.

The M.s have not shown that the superior court clearly erred with regard to any finding that concerned the adequacy of the C.#' income.

C. The Superior Court Did Not Abuse Its Discretion in Making the Custody Determination.

The M.s argue that the superior court abused its discretion in several respects. We consider each argument in turn.

1. The importance of a child's "kinship circle"

The M.s argue that in not granting their adoption petition, Judge Reese did not place enough importance upon the evidence presented by their experts that adopted children fare best among their "kinship circle," where they may develop a stronger sense of family history, genetics, and identity formation.

The superior court took the kinship circle argument seriously, and cited its importance in the opinion. However, the superior court also found that "[Sally D.] is as important to [Lucey] as [Cole M.]." The evidence tended to show that the M.s knew little about Lucy's mother and maternal family, whereas Elsa C. had grown up with Sally D. as children, still kept in contact with her family, and had been close to Lucy's parents when they were alive. The superior court heeded the family circle argument, but recognized that Lucey had two family circles. By necessity, her kinship relationship with one of those families will have to be met through visitation rather than primary custody. We do not find an abuse of discretion on this point.

2. Primary caregiver preference

The M.s contend that Judge Reese gave custody to the C.s "simply because they have been her primary caregivers since the death of her parents and [shel might experience some emotional trauma if transitioned into the care of the [M.] Family." They point out that although "the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity is one of the statutory best-interest factors in determining child custody, nonetheless we have held that the trial court cannot simply assume that the current primary caregiver is automatically the best caregiver for the child." However, the issue was not merely primary caregiving, but whether removing Lucey from the primary custody of the people with whom she had spent twenty-one of her twenty-four months would be unnecessarily traumatic for her, especially since she had already lost one set of parents. The record shows that the superior court carefully questioned in voir dire each expert who testified on child psychology about the possible effects on Lucy of being separated from the C.s, and overruled objections to such questions when asked. There was evidence in the record to support a conclusion that the transfer of custody could be risky, and such trauma is properly considered during a custody determination under AS 25.24.150(c)(5). We find no abuse of discretion on this point.

3. Overreliance on custody investigator's report

The M.s contend that it was an abuse of discretion for Judge Reese to rely on and "effectively adopt[ ]" the custody investigator's recommendation on custody. The M.s allege that the report of Pamela Montgomery,, A.C.S.W., the custody investigator, was "improperly biased and fundamentally unreliable" because she was not qualified to assess whether Luey would be harmed by a gradual removal from the custody of the C.s. However, Montgomery was properly qualified under Alaska Rule of Civil Procedure 90.6 governing child custody investigators, and two of the three expert witnesses testified that removal from primary parental bonds puts children at risk for developmental and attachment difficulties. There is no evidence showing that the superi- or court relied on Ms. Montgomery alone in making its determination on this point.

The M.s also allege that Montgomery was biased against them because the C.9' former lawyer mailed Montgomery a copy of the W.E.G. case. They suggest that Montgomery, after reading W.L.G., became overly concerned that the C.s would have no standing to ask for visitation if the M.s' adoption petition were granted, and that Montgomery's participation in this ex parte communication was unethical. However, Montgomery's written report states that her primary concern in recommending that Lucey be placed with the C.s was that she did not want Lucey to suffer yet another loss of attachment with a primary caregiver. Moreover, Alaska Rules of Civil Procedure 90.6(d)(@8) and 90.6(g)(1)" suggest that ex parte communication between the custody investigator, the parties, and their attorneys is not per se unethical. Civil Rule 90.6(b)(1)(E) " also requires a qualified custody investigator to have knowledge of relevant Alaska statutes and rules relating to custody determinations. We find no abuse of discretion here.

The M.s also contend that Montgomery's report was inaccurate and suffered from deficiencies on several points, including whether Lucy shared a bedroom in the C.#' home. The allege that the report failed to include Dillon C.'s full criminal history, failed to contain interviews with prior domestic partners, and contained errors made by a private investigator about the M.s. None of this information was dispositive for Montgomery or any of the experts who testified, and there is no support in the record for the proposition that the superior court abused its discretion in considering Montgomery's report. The record shows that the court shared the custody investigator's concern that a third family placement for a two-year-old could be damaging to her emotional health, and consulted all the experts available to him at trial while deciding not to take that risk. We find no abuse of discretion on this point.

4. Dillon C.'s relationships with his other children

The M.s contend that because Dillon C. has ceased to have meaningful contact with one of his three biological children, it was an abuse of discretion for the superior court to grant Elsa and Dillon C. custody of Lucey. Dillon Cs relationship with Lucy is the one that is relevant for the purpose of determining her adoption and custody, and evidence supported the contention that their relationship was active and appropriate. We find no abuse of discretion.

5. Health insurance

The M.s claim that it was an abuse of discretion for the superior court to grant the C.s custody instead of adoption, claiming that only if Lucey had been adopted would she have been eligible for coverage by the C.g' health insurance under AS 21.36.095. However, the M.s introduce no evidence that Lucey has in fact been denied health insurance coverage under any policy held by the C.s. Although 7 Alaska Administrative Code (AAC) 56.660(b)(15) does state that insurance is a factor to be considered in an adoption home study, there is nothing to indicate that health insurance should be the overriding factor in the best-interests determination for the judge. We find no abuse of discretion on this score.

V. CONCLUSION

Because the superior court's factual findings were not shown to be clearly erroneous, because the superior court did not abuse its discretion in its placement decision, and because the superior court correctly applied the applicable law, we AFFIRM the decision of the superior court in all respects.

      . Pseudonyms have been used throughout this opinion for the parties.

      . AS 25.23.120(d) provides: "If the requirements for a decree under (c) of this section 'have not been met, the court shall dismiss the petition and determine, in the best interests of the minor, the person including the petitioner to have custody of the minor." AS 25.23.120(c) states that the judge may grant the petition for adoption if all necessary parties consent and if it is in the best interest of the child.

      . L.G. v. State, Dep't of Health & Soc. Servs., 14 P.3d 946, 950 (Alaska 2000).

      . West v. West, 21 P.3d 838, 841 (Alaska 2001).

      . In re J.J.J., 718 P.2d 948, 957 (Alaska 1986).

      . West, 21 P.3d at 841.

      . D.J. v. P.C., 36 P.3d 663, 667-68 (Alaska 2001) (quoting Sosa v. State, 4 P.3d 951, 953 (Alaska 2000)).

      . Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979).

      . AS 47.14.100(e)(1) provides:
      A child may not be placed in a foster home or in the care of an agency or institution providing care for children if a relative by blood or marriage requests placement of the child in the relative's home. However, the department may retain custody of the child and provide for its placement in the same manner as for other children if the department (1) makes a determination, supported by
      clear and convincing evidence, that placement of the child with the relative will result in physical or mental injury....

      . The M.s did not make this argument at trial, apparently recognizing that Title 47 of the Alaska Statutes, dealing in relevant part with children in need of aid, is very different from Title 25, dealing in relevant part with adoption. This court does not review issues not raised at trial except for plain error. D.J., 36 P.3d at 667-68 (explaining that plain error exists " 'where an obvious mistake has been made which creates a high likelihood that injustice has resulted'" (quoting Sosa, 4 P.3d at 953)). The failure of the trial court to import an unrelated statute into the adoption proceedings cannot be plain error.

      . In re W.E.G., 710 P.2d 410, 413 (Alaska 1985) (specifically declining to give grandparents of children in need of aid preference over foster parents for adoptive purposes, instead remanding to trial court to consider best interest of child). See also P.M. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth Servs., 42 P.3d 1127, 1136-37 (Alaska 2002) S.S.M. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth Servs., 3 P.3d 342, 345-46 (Alaska 2000).

      . 710 P.2d at 413. The M.s also argue that AS 47.14.100(f) should not be applied to Lucy's case because they claim her placement by DFYS was not a properly adoptive one. However, W.E.G. makes clear that any errors made by DFYS are properly appealed from the CINA case, not this adoption case: "the grandparents did not request de novo review of the Division's original inaction on their request to become the boys' foster parents. That issue is therefore not before us." Id. The M.s stipulated to the dismissal of the CINA case; any appeal of DFYS's decision should have occurred at that time.

      . See In re Adoption of B.S.L., 779 P.2d 1222, 1226-27 (Alaska 1989) (observing that adoption and child-in-need-of-aid proceedings serve different purposes justifying use of different statutory standards for termination of parental rights).

      . Buness v. Gillen, 781 P.2d 985, 988 (Alaska 1989).

      . See, eg., W.E.G., 710 P.2d at 412-13 (explaining that parent of child in need of aid consented to foster parents' petition for adoption, but refused consent to, and contested, grandparents' petition for adoption).

      . AS 25.23.120(c). The superior court in this case informed the parties, and the parties apparently had no objection, that it intended to adjudicate the best interests of the child according to the child custody factors listed in AS 25.24.150(c), which do not include a blood relative placement.

      . AS 25.24.150(c)(1) and (2).

      . To the extent that the M.s' argument may be construed as a claim that a second home study should have been prepared, 7 Alaska Administrative Code 56.660(j) requires a second home study only if the child has not actually begun living with the petitioners within a year of their first home study.

      . AS 25.24.150(c)(5).

      . L.J.D. v. D.R.D., 961 P.2d 425, 430 (Alaska 1998) (citing Evans v. Evans, 869 P.2d 478, 483 n. 4 (Alaska 1994)).

      . One expert, Dr. Carey Edney, testified solely on the issue of whether children under three years of age are likely to suffer from "reactive attachment disorder" when placed in too many primary caregiver situations. The M.s urge that her testimony be stricken because she did not meet with any of the parties or read any materials that were specific to Lucy, and rely on C.J. v. State, Department of Health & Social Services, 18 P.3d 1214, 1218 (Alaska 2001). We find C.J. inapposite because different legal and factual standards were involved. The problem in C.J. was that in order to terminate the parent's rights, the state was required by the Indian Child Welfare Act (ICWA), 25 U.S.C. § 1912(f) (West 2002), to present testimony by a qualified expert that return of the children in that case to their parent would likely result in serious damage to those children; the sole expert in that case had never assessed the children or parent personally, but had only read the DFYS reports about the children. CJ., 18 P.3d at 1218.
      In contrast, this is an adoption contest being adjudicated under child custody principles, and the parties are free to prove "the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity" in any way they see fit, which need not necessarily include experts. There were several witnesses in this case who testified from personal experience to Lucy's attachment to the C.s, including the custody investigator, and Dr. Edney claimed only to testify as an expert regarding child psychology principles in general. Expert witnesses are entitled to testify from facts made known to them at the hearing. Alaska Rule of Evidence 703. See also J.A. v. State, DFYS, 50 P.3d 395, 400 (Alaska 2002) (emphasizing that even in ICWA case, lack of pretrial interview not determinative of whether experts' testimony sufficient to support finding of harm).

      . Moreover, in W.E.G. we ruled that the length and quality of time that foster children had spent with their foster parents were relevant in determining whether the foster parents or the biological grandparents should ultimately be allowed to adopt. In re W.E.G., 710 P.2d 410, 417 (Alaska 1985).

      . The superior court might well have benefitted from the appointment of a guardian ad litem for Lucy. Because the CINA case was dismissed, the state was not present to represent the child's best interests. Because no guardianship proceeding was filed under AS 13.26, a guardian was not available. Although the Alaska Statutes do not appear to address the issue directly, we doubt that the legislature envisioned allowing an adoption battle between three sets of competing, would-be adoptive parents to be visited upon an orphaned infant with no neutral legal custodian. to speak for her and protect her best interests. Because the parties elected (and the state evidently consented) to dismiss the CINA proceeding, because current Alaska law does not appear to require appointment of a guardian in this situation, and because the parties did not request appointment of a guardian or guardian ad litem below or raise the issue on appeal, we conclude that the superior court did not abuse its discretion in its ruling on the case as it was presented. Our affirmance should not be taken as approving a model for future similar cases.

      . W.E.G., 710 P.2d at 417.

      . Alaska R. Civ. P. 90.6(d)(3) provides: "The custody investigator may meet with the parties jointly or separately at any time to discuss the investigation and the investigator's conclusions in order to facilitate a voluntary resolution of the issues."

      . Alaska R. Civ. P. 90.6(g)(1) provides: "Unless otherwise ordered, a custody investigator may communicate with a party who is represented by an attorney without prior notice to the attorney."

      . Alaska R. Civ. P. 90.6(b)(1)(E) states in relevant part: "Specifically, the custody investigator should have an understanding of the following as appropriate to the case:.... Alaska statutes and rules relating to custody determinations."

      . 7 AAC 56.660(b) provides: "The agency shall obtain all available information about each adoptive applicant regarding the following: ... (15) financial status and ability to support a child, including income, financial resources, debts, expenses, employment history, insurance coverage, and the family's ability to address possible ongoing needs of the child."


author: STEWART, Judge.

text:
    Eric B. FOWLER, Appellant, v. STATE of Alaska, Appellee.
    No. A-8254.
    Court of Appeals of Alaska.
    May 23, 2003.
    Marcia E. Holland, Assistant Public Defender, and Barbara K. Brink, Public Defender, Anchorage, for Appellant.

      Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Bo-telho, Attorney General, Juneau, for Appel-lee.
    Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   OPINION

STEWART, Judge.

On May 8, 2001, the Alaska Legislature passed a bill that amended the definition of felony driving while intoxicated, AS 28.35.030(n)) Previously, driving while intoxicated had been a felony if a defendant had two prior convictions within the preceding five years. The 2001 amendment increased the "look-back" period to ten years.

Under Alaska law, a bill takes effect on the 90th day after the governor signs it, unless the legislature specifies otherwise Here, the legislature did specify otherwise: the bill provided that the amended version of AS 28.835.030(n) would take effect.on July 1, 2001 (about eight weeks after the legislature passed the bill)}. However, the legislature delayed transmitting the bill to the governor until June 20, and the governor did not sign the bill until July 3-ie, after the legislature's specified effective date.

On the following day-July 4, 2001-Eiric Fowler committed the offense of driving while intoxicated. He had two prior convie-tions within the preceding ten years, but not within the preceding five years. Thus, Fowler's offense would be a felony if the amended law was in effect on July 4, but only a misdemeanor if the amended law had not yet taken effect.

Fowler argues that because the governor did not sign the bill until after the effective date specified by the legislature, the bill must be treated as if the legislature had never specified a special effective date. According to this argument, the new law must be deemed to have gone into effect on October 1-the 90th day following the governor's signature. }

Alternatively, Fowler argues that even if the new law would normally have gone into effect on the day after the governor signed it, there was an additional delay in this case because the following day was July 4, a state holiday. Fowler argues that a new law cannot take effect on a holiday.

For the reasons explained here, we reject both of Fowler's arguments. We conclude that the new version of AS 28.85.0830(n) took effect at 12:01 a.m. on July 4, 2001-and that Fowler was therefore properly charged with felony driving while intoxicated.

A brief description of Alaska law on this subject

Article II, Section 18 of the Alaska Constitution states: "Laws passed by the legislature [normally] become effective ninety days after enactment [, but the] legislature may, by concurrence of two-thirds of the membership of each house, provide for another effective date." To clarify and carry out the mandate of this constitutional provision, the legislature enacted AS 01.10.070.

Under subsection (b) of this statute, a bill that does not specify a particular effective date takes effect at 12:01 a.m., Alaska Standard Time, on the 90th calendar day following the governor's signature Under subsection (c), if a bill specifies that it takes effect "immediately," the bill takes effect at 12:01 a.m., Alaska Standard Time, on the day after it is signed by the governor.

Subsection (d) of AS 01.10.070 deals with bills that specify a particular effective date. The current version of subsection (d) codifies a rule that resolves situations like the one presented in Fowler's case:

(d) An Act that specifies a definite effective date becomes effective at 12:01 a.m., < Alaska Standard Time, on the date specified. However, if the specified ... effective date is on or before the day the governor signs the Act, ... the Act becomes effective at 12:01 a.m., Alaska Standard Time, on the day after the governor signs the Act....

The problem is that when the events in Fowler's case arose in 2001, subsection (d) did not contain the second sentence. Thus, the 2001 version of AS 01.10.070(d) did not answer the question posed by this case: When does a bill take effect if the governor fails to sign the bill until after the legislatively specified effective date?

Although the current version of AS 01.10.070(d) resolves this problem, the eur-rent version of the statute does not govern Fowler's We must therefore ascertain the common law on this topic as it existed in 2001, before AS 01.10.070(d) was amended to resolve this situation.

Fowler's argument that the amended law took effect 90 days after the governor signed the bill because the governor failed to sign it by the legislatively specified enactment date

Fowler first argues that because the 2001 version of AS 01.10.070 did not contain an explicit rule to govern the situation presented in this case, we must presume that the "default" rule applied-that, unless the legislature specifies a different date, a statute takes effect on the 90th day after the governor signs it.

Fowler asserts that this result follows from the rule that an ambiguous penal statute must be construed against the government. But AS 01.10.070 is not a penal law. It is a law of general application that governs the effective date of all statutes enacted by the legislature, whether those statutes be erimi-nal or civil.

For purposes of the rule requiring resolution of ambiguities against the government, a "penal" law is one "that defines an offense [or] prescribes its corresponding ... punishment." This rule of construction does not apply when the statute under consideration is a statute of general application. For example, in Commonwealth v. Broughton, the court held that the rule of construing ambiguities against the government did not apply to a statute that established proof requirements but did not define proseribed conduct. We therefore examine AS 01.10.070 without a presumption either for or against a result favoring Fowler.

The basic question is to ascertain what the legislature would wish to have happen under these circumstances.

There are two ways in which the legislature can specify that they do not wish the usual 90-day rule to apply. The legislature can either (1) name a definite date on which the new law will take effect, or (2) declare that the new law will take effect "immediately."

Obviously, if the legislature follows this second course, the new law will not take effect immediately. Rather, the law will take effect on the day after the governor signs it-an event that the legislature has little control over. Thus, when the legislature declares that a law is to take effect "immediate-1y," it means that the law should take effect "as soon as possible," consistent with the governor's role in the enactment process.

Fowler argues that the situation is different when the legislature specifies a date for a new law to go into effect. He contends that, by setting a specific future date, the legislature must mean for the public to get a certain amount of forewarning before the law takes effect. Thus, Fowler asserts, when the governor does not sign the bill until the specified date has transpired, a court must protect this desired period of forewarning by delaying the effective date of the law for 90 days.

But when the legislature specifies a definite date for a new law to take effect, they normally foresee that the governor will sign the law with time to spare-and that the new law will take effect on the specified date, regardless of when the governor signs it. In other words, there is no particular guaranteed period of forewarning, no particular buffer period between the signing of the bill and the time it takes effect.

We believe that when the legislature goes out of its way to specify a particular effective date, this date does not represent an imprecise description of how much forewarning the public should receive. Rather, it represents the legislature's intention that the new law should take effect on that specified date. Thus, when that specified date has already transpired by the time the governor signs the law, we believe it is reasonable to assume that the legislature would want the law to take effect as soon as possible-that is, on the day after the governor signs it. For this reason, we conclude that Fowler's suggested 90-day waiting period would not achieve the legislature's purpose.

In reaching this conclusion, we do not rely on any inference that might be drawn from the fact that, when the legislature addressed this problem, they codified the same rule that we now adopt as a matter of common law. However, we note that our interpretation is consistent with the rule of construction that was followed by the revisor of statutes up until AS 01.10.070(d) was amended to expressly resolve this problem.

The record in this case reveals that both the current revisor of statutes and her predecessor encountered the problem of an after-signed law on other occasions. Without exception, these revisors concluded that the statutes in question should be deemed to have taken effect on the day after the governor signed the law. The revisors adopted this practice because they believed that it achieved a result "as close as possible to the legislature's intended effective date[.]" For example, SLA 1995, ch. 108 specified a particular effective date-June 80, 1995-for § 70 of that session law. However, the governor did not sign the bill until that very date. When the bill was officially enrolled, the revisor substituted an effective date of July 1, 1995-i.e., the day after the governor signed the bill.

The legislature has apparently acquiesced each time the revisor of statutes adjusted the effective dates of statutes in accordance with this practice. From this acquiescence, we conclude that the revisor's practice reflects the legislature's desired resolution of this problem.

Applying this rule of construction, we conclude that the new felony DWI law took effect at 12:01 am., Alaska Standard Time, (that is, at 1:01 a.m. Alaska Daylight Time) on July 4, 2001-the day after the governor signed the law.

Fowler's alternative argument that a law cannot take effect on a holiday

Fowler argues in the alternative that even if the new felony DWI law would normally have taken effect on the day after the governor signed it, the effective date of this new law was delayed by one day because July 4 was (and is) a state holiday. Fowler relies on AS 01.10.080, which states:

The time in which an act provided by law is required to be done is computed by excluding the first day and including the last, unless the last day is a holiday, and then [that day] is also excluded.

Fowler contends that, pursuant to this statute, if a new law would normally take effect on a holiday, the effective date must be delayed by one day.

But it is plain from the wording of AS 01.10.080 that this statute is a codification of the common-law rule governing the computation of time for the doing of an act required by law. The statute allows an additional day for the accomplishment of the required act if the normal time limit expires on a holiday-a day when "the usual operations of business are suspended and the courts [are] closed[.]

The effective date of a statute is not an "act" that must be accomplished within a specified time period. Thus, AS 01.10.080 does not address the question of when a newly enacted statute takes effect.

We note that, in the past, the legislature has expressly declared its intent to have new laws take effect on holidays. One of the prime examples is Alaska's present criminal code-SLA 1978, ch. 166, §§ 3 & 25 specified that the new code would take effect on January 1, 1980.

Conclusion

For the reasons explained here, we hold that the 2001 amendment to AS 28.85.0830(n) took effect at 12:01 a.m., Alaska Standard Time, on July 4, 2001. Because Fowler committed his offense approximately seven hours later (at around 8:00 a.m., Alaska Daylight Time), the new law applied to him.

The judgment of the superior court is AP-FIRMED.

      . See 2001 SCS CSHB 132, later enacted as SLA 2001, ch. 63.

      . AS 01.10.070(a).

      . See 2001 House Journal 1864.

      . Alternatively, if the governor vetoes the bill, AS 01.10.070(b) provides that the bill takes effect on the 90th day following the legislature's vote overriding the veto. And if the governor takes no action on the bill, the bill takes effect on the 90th day following the expiration of the time allowed for gubernatorial action under Article II, Section 17.

      . Similarly, if the governor vetoes the bill, AS 01.10.070(c) provides that the bill takes effect on the day following the legislature's vote overriding the veto.

      . See AS 01.10.090; "No statute is retrospective unless expressly declared therein."

      . See State v. Andrews, 707 P.2d 900, 907 (Alaska App.1985) (ambiguities in criminal statutes must be construed against the government); Norman J. Singer, Sutherland on Statutory Construction §§ 59.03, 59.04, and 59.06 (6th ed.2000).

      . Black's Law Dictionary, 1421 (7th ed.1999).

      . See J. Singer, supra § 59.9, at 178 n. 7.

      . 257 Pa.Super. 369, 390 A.2d 1282, 1286 (1978).

      . See Fields v. Fairbanks North Star Borough, 818 P.2d 658, 660 (Alaska 1991).

      . David v. Sturm, Ruger & Co., 557 P.2d 1133, 1135 (Alaska 1976).


author: COATS, Chief Judge.

text:
    Kyong Suk LEE, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee.
    No. A-8205.
    Court of Appeals of Alaska.
    May 23, 2003.

      Andrew L. Josephson, Josephson & Associates, Anchorage, for Appellant.
    C. Levi Martin, Assistant Municipal Prosecutor, and William A. Greene, Municipal Attorney, Anchorage, for Appellee.
    Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   OPINION

COATS, Chief Judge.

This case presents the question of what culpable mental states the Municipality must prove when it charges a person with maintaining a place of prostitution under Section 8.65.060 of the Anchorage Municipal Code (AMC). Kyong Suk Lee was convicted of two separate violations of AMC 8.65.060(A), which provides that it is "unlawful for any person to knowingly maintain or operate a place, building, structure or part thereof, vehicle, mobile home, or other conveyance for the purpose of prostitution or assignation." Lee claims that under this ordinance, the Municipality not only had to prove that she knowingly maintained a place where prostitution occurred, but that she did so with the intent that the place be used for prostitution. For the reasons set out below, we agree.

Lee also claims that with regard to the "maintaining" charge, the district court should have instructed the jury on a lesser-included offense derived from AMC 10.40.050, the section of the municipal code that pertains to the licensing and regulating of adult-oriented service establishments. Lee presented this argument to District Court Judge Stephanie Rhoades, who concluded that this section of the municipal code did not apply. We agree with Judge Rhoades.

Facts

Lee's convictions arose from two undercover operations conducted by the Anchorage Police Department in January 2001 and May 2001. At both times, Lee was the manager of Fantasy Club, an escort service in Anchorage. In January 2001, and again in May 2001, the Anchorage Police Department's Special Assignment Unit conducted two undercover operations to determine if prostitution was occurring at Fantasy Club. Both times, the unit's undercover officers found escorts engaging in prostitution.

As a result of these undercover operations, Lee was charged in two separate cases for violating AMC 8.65.060. Additionally, in the instant case, Lee was charged with violating the release conditions imposed after her January 2001 arrest. Lee had a separate trial for each incident. Her first trial began in late October 2001. She was tried by a jury, who found her guilty as charged for the January 2001 incident Approximately a week after her jury trial, Lee's second trial began. In the second trial, she waived her right to a jury, and the judge found her guilty of both charges relating to the May 2001 incident. Judge Rhoades presided over both trials.

Discussion

The mental states of AMC 8.65.060

As set out above, Lee was charged with "knowingly maintain[ing] or operat[ing] a place, building, structure or part thereof ... for the purpose of prostitution or assignation." At her second trial, Lee argued that this ordinance has two mental states, "knowingly" and "intentionally." Judge Rhoades, however, applied only the "knowingly" mental state. On appeal, Lee claims that the language "for the purpose" connotes specific intent. Hence, she argues that not only did the Municipality have to prove that she knowingly maintained a place where prostitution occurred, but the Municipality also had to prove that she did so with the intent that prostitution take place there.

We conclude that Lee is correct. Although we have not had the occasion to construe this ordinance before, in Dawson v. State we construed a similar state statute. Dawson required us to determine the mental state required by AS 11.71.040(a)(5), Alaska's "crack-house" statute. In pertinent part, this statute makes it an offense for a person to "knowingly keep[ ] or maintain[ ] any store, shop, warehouse, dwelling, building, vehicle, boat, aircraft, or other structure or place that is used for keeping or distributing controlled substances in violation of a felony offense under this chapter[.]" We concluded that this statute required that a defendant act knowingly "both with respect to the proscribed conduct ... and with respect to the existence of the illegal use itself."

In reaching this conclusion we relied both on related federal case law and on the language in the statute. Importantly, when analyzing this statute, we illustrated the difference in mental states between two subsections of a federal drug statute, one of which has "for the purpose" language and one of which does not. We pointed out that the subsection that applies when the accused " 'knowingly open[s] or maintain[s] any place for the purpose of illegal drug-related activity is interpreted to require that the accused act knowingly with respect to the conduct of maintaining, and intentionally with respect to the illegal use of the premises opened or maintained." We noted that when interpreting the statutory language, federal courts have held that there are two mental elements, knowledge and purpose.

This result is supported by Professor La-Fave, who writes that the modern approach, adopted by the Model Penal Code, is to use the word purpose to mean intent. According to Professor LaFave, under this approach, "as to the results of one's conduct, the Code provides that one acts 'purposely' when 'it is his conscious object ... to cause such a result', while one acts 'knowingly' if he is aware that it is practically certain that his conduct will cause such a result.

Additionally, when discussing common law accomplice liability, Professor LaFave recognizes that an alleged accomplice's actions often fall short of criminal. He states that "there are many ... instances in which the alleged accomplice's actions will qualify only as knowing assistance, in that he is lending assistance or encouragement to a criminal scheme toward which he is indifferent. " Professor LaFave provides as an example of this a "lessor [who] rents with knowledge that the premises will be used to establish a bordello. Professor LaFave points out that the majority view-which he notes has been adopted under the Model Penal Code -holds that "traditional definitions of accomplice liability 'demand that [the accessory] in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed.. " Hence, under the majority view of common law accomplice liability, the Municipality would have to prove that Lee knowingly maintained a place where prostitution occurred with the intent that the place be used for prostitution.

When courts are presented with a question as to the proper construction of a statute or ordinance that potentially modifies the common law, "the normal rule of interpretation is that such statutes are construed so as to preserve the pre-existing common law unless the legislature has clearly indicated its purpose to change that law. " Here, the record before us holds no indication that the Anchorage Assembly intended to change the mens rea requirements of the offense of maintaining a place of prostitution from th common law. &©

Considering our analysis in Dawson, Professor LaFave's discussion on mental states, and the lack of any evidence before us that the assembly intended to change the common law when it codified this offense, we conclude that under AMC 8.65.060 the Municipality has to show that a defendant acted "knowingly" with respect to the conduct of maintaining or operating a place of prostitution and that a defendant acted "intentionally" with respect to the illegal use-that is, prostitution-of the premises maintained.

Judge Rhoades's verdict demonstrates that she applied only the "knowingly" standard in this case. This was error. However, because Lee was tried without a jury, a reversal and retrial are not necessary. Rather, a remand will allow Judge Rhoades to apply the required standard and to reconsider the verdict in light of our decision on this issue.

Lee's argument concerning the lesser-included offense

Lee also claims that Judge Rhoades should have considered convicting her of a lesser-included offense under AMC 10.40.050, the section of the municipal code pertaining to the licensing and regulating of adult-oriented service establishments. Lee argues that AMC 10.,40.050 makes it a violation to negligently supervise the staff of an adult-oriented service establishment. In both trials, she proposed a lesser-included offense that included the following elements: Lee with negligence failed to supervise the conduct of an employee of the escort service and the employee had committed an act, or had agreed to engage in an act, of prostitution at Fantasy Club.

Judge Rhoades rejected this lesser-included offense in both trials She found, among other things, that AMC 10.40.050 had no real relationship to criminalizing maintaining a place of prostitution. We agree with Judge Rhoades. The only section of AMC 10.40.050° that prohibits sexual activity-AMC 10.40.050(J)(1){c)-does not apply to escort services. Rather, this section applies only to adult-orientated establishments that provide any "booth, room or cubicle for the private viewing of any adult entertainment. " Escort services, as defined in the ordinance, do not provide this type of service. Instead, an escort service is "a person or business that furnishes, offers to furnish or advertises to furnish escorts for a fee, tip or other consideration[.]" * Additionally, AMC 10.40.050 does not apply in Lee's case because it does not prohibit or otherwise regulate prostitution. Accordingly, we conclude that Judge Rhoades properly rejected Lee's requested lesser-included offense.

Conclusion

We AFFIRM the district court's rejection of Lee's requested lesser-included offense. However, we REMAND this case for Judge Rhoades to reconsider the verdiet for maintaining a place of prostitution in light of our decision that the ordinance has two mental states, knowing and intentional. If necessary, Judge Rhoades shall also reconsider Lee's conviction for violating release conditions. We retain jurisdiction.

The district court shall make its findings and forward them to this court within 60 days of our remand. If Lee is acquitted, we will close this appeal,. If Lee is again con-viected, then the parties shall file supplemental memoranda addressing the district court's findings. Lee shall file her memorandum 15 days after the district court forwards its findings to this court. The Municipality shall file its memorandum 15 days after Lee files hers. Lee may not file a reply. The page limits of Appellate Rule 217 shall apply.

      . See AMC 8.65.020-030.

      . AMC 8.30.110(A).

      . AMC 8.65.060(A) (emphasis added).

      . 894 P.2d 672 (Alaska App.1995).

      . Id. at 674.

      . Id. at 678.

       . Id. at 678 n. 7 (emphasis in original) (citation omitted).

      . Id. (citation omitted).

      . See 1 Wayne R. LaFave and Austin W. Scott, Jr., Substantive Criminal Law § 3.5, at 305-06 (1986) (citations omitted).

      . Id. at 306.

      . 2 LaFave, § 6.7, at 146.

      . Id. (quoting Model Penal Code § 2.06, Comment at 316 (1985)).

      . See id. at 148 ('The Code thus limits accomplice liability to instances in which there exists 'the purpose of promoting or facilitating the commission of the offense' ") (citing Model Penal Code, § 2.06(3)(a)).

      . Id. at 146-47 (quoting United States v. Peoni, 100 F.2d 401, 402 (2d Cir.1938)).

      . State v. ABC Towing, 954 P.2d 575, 579 (Alaska App.1998).

      . See, eg., Colgan v. State, 711 P.2d 533, 536 (Alaska App.1985).

      . AMC 10.40.050(0)(1)..

      . AMC 10.40.050(4).


text:
    John Greenway McGUIRE, Appellant, v. STATE of Alaska, Appellee.
    No. A-8216.
    Court of Appeals of Alaska.
    May 30, 2003.
    Marcia E. Holland, Assistant Public Defender, Fairbanks, and Barbara K. Brink, Public Defender, Anchorage, for Appellant.
    Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Bo-telho, Attorney General, Juneau, for Appel-lee.
    Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   OPINION

STEWART, Judge.

During a pat-down search for weapons, a police officer felt a plastic baggie containing bindles (single-purpose paper packages used for transportation of narcotics) in the pocket of John G. McGuire's pants. Ultimately, the officer seized the baggie, opened a bindle, tested its contents for controlled substances, and discovered cocaine. This evidence led to a grand jury indictment charging McGuire with one count of third-degree misconduct involving a controlled substance.

McGuire moved to suppress the cocaine, arguing that the search went beyond the permissible seope of a pat-down for weapons. After an evidentiary hearing, Superior Court Judge Mary E. Greene issued a decision denying the motion. McGuire entered a no contest plea to fourth-degree misconduct involving controlled substances, preserving his right to appeal the denial of his suppression motion.

We agree with Judge Greene's conclusion that the cocaine was discovered pursuant to a legal pat-down search and that the officer was permitted to seize the baggie. Therefore, we affirm the superior court.

Facts and proceedings

Alaska State Trooper Scott Johnson was among several police officers responding to a report of a large fight with a weapon fired or brandished outside a Fairbanks bar. Trooper Johnson patted down several people for weapons, including McGuire. While he was patting McGuire down, Trooper Johnson felt what he believed was a plastic baggie that "made the crackling sound consistent with a plastic baggie" in the pocket of McGuire's lightweight cargo pants. He also felt "the 90 degree rectangular ... corners of paper bin-dles." Johnson perceived what he thought were bindles without squeezing McGuire's pocket.

When Trooper Johnson felt the bindles, he was "absolutely certain" McQuire had nareot-ics. Johnson asked McGuire what he had in his pocket and McGuire responded that it was "his marijuana." Johnson removed the baggie, saw several bindles inside, and field-tested the contents of the bindles for narcotics. The bindles contained cocaine and McGuire was arrested.

After the grand jury returned the indictment, McGuire moved to suppress the cocaine, arguing he had been subjected to an illegal search "beyond the scope of a limited pat-down search for weapons." Judge Greene conducted an evidentiary hearing at which only Trooper Johnson testified.

At the evidentiary hearing, the State argued that Trooper Johnson was justified in seizing and opening the bindles he found during a lawful pat-down search because he was absolutely certain that the bindles contained illicit substances. The State argued, "This is like plain feel doctrine and ... the drugs were in plain view at that time and he was able to open up the pocket to take the baggie out." The State cited Newhall v. State for the proposition that officers may seize a container that they are at least virtually certain contains contraband under the plain view doctrine.

McGuire did not address the State's "plain feel" argument. Instead, McGuire cited State v. Jowubert for the proposition: that Trooper Johnson could only search McGuire for guns. McGuire conceded the validity of the pat-down search: "I wouldn't fault the officer for making the pat-down search for a weapon under what I understand to be the circumstances in this case." However, McGuire argued that Trooper Johnson exceeded the scope of a permissible weapons pat-down search. - McCuire claimed that Trooper Johnson reached into his pocket on suspicion that the pocket might contain nar-coties.

Judge Greene stated that she recollected an explicit United States Supreme Court plain feel case called "Dickerson" or "Dickinson," and that she would review that case as well as Newhall and Joubert before issuing a written order. Later that day, the State filed a notice of supplemental authority, citing Minnesota v. Dickerson, as well as two opinions from other states.

In her written order, Judge Greene found that the facts were undisputed, that Trooper Johnson conducted a legitimate pat-down for weapons, and that during this pat-down he felt bindles in a plastic bag that he was certain would contain illegal drugs. She relied on Minnesota v. Dickerson to find that "[plolice officers may seize contraband that is clearly non-threatening detected during a pat-down permitted by Terry v. Ohio ... without violating the Fourth Amendment." Judge Greene concluded that the seizure from McGuire's pocket of the plastic bag containing the bindles was lawful. In addition, Judge Greene ruled that opening the bindles was legal under Newhall, because the contents of the bindles were identifiable to a virtual certainty.

McGuire moved to reconsider and requested an additional evidentiary hearing on the seope of Trooper Johnson's pat-down search, because the "authority presented by the state and relied on by the court in making its decision was not made known to defense counsel prior to hearing." Judge Greene denied reconsideration. McGuire appeals.

Did the trooper lawfully seize and open the bindles he found in McGuire's pocket?

Although Judge Greene did not expressly discuss the seope of Trooper Johnson's pat-down search of McGuire, the judge noted that McGuire did not dispute Johnson's testimony concerning the seope and intensity of the pat-down.

During his testimony, Johnson was asked whether the pat-down involved "reaching and grabbing into things." He answered, "No, it's just an outer search with your fingertips." He then described how he had discovered the baggie containing the bindles:

[McGuire] was wearing ... lightweight cotton pants [with] cargo pockets.... [Als I was patting [the left pocket], I could feel a plastic baggie inside. It made [a] crackling sound consistent with a plastic baggie. And when I was patting it down with my fingertips, I could feel the 90 degree rectangular ... corners of paper bindles inside.

The prosecutor asked Johnson if he had had to squeeze McGuire's pocket to discover these bindles. Johnson answered no: he was able to detect the bindle corners with only a light touch of his fingertips.

McGuire did not cross-examine Johnson concerning the scope or the intensity of the pat-down, except to confirm that Johnson was conducting the pat-down in an effort to discover weapons, and that Johnson knew for certain that the baggie and the bindles did not feel like a weapon.

At the evidentiary hearing in the superior court, and on again appeal, McGuire and the State argue about whether Trooper Johnson could have been "certain," based on sense of touch alone, that McGuire's pocket contained narcotics. -

The State asserts that when Johnson felt a baggie containing slim rectangular objects, there was only one reasonable conclusion to be drawn: that these slim rectangular objects were "bindles"-ie., distinctive paper containers whose sole purpose is to serve as envelopes for narcotics. The State argues that once Johnson was certain that McGuire's pocket contained narcotics, he was entitled to seize the bindles from the pocket and open them.

McGuire argues that Johnson could not have identified the contents of McGuire's pocket with certainty based on touch alone. He asserts that there are many types of slim rectangular objects that might be found in a baggie in a pocket-sticks of gum or baseball cards, for example. McGuire contends that Johnson could not have become certain that these objects were bindles until he removed the baggie from McGuire's pocket and looked at the objects.

We, too, are skeptical that Johnson could have identified the slim rectangular objects as bindles (to the exclusion of anything else) based on touch alone. However, we conclude that this issue is moot.

We assume, for purposes of argument, that Johnson's touch of the baggie and the bindle edges did not give him probable cause to believe that McGuire was in possession of narcotics. However, Johnson's touch gave him at least an articulable suspicion that this was the case. Armed with this articulable suspicion, Johnson could properly ask McGuire what was in his pocket. When McGuire answered that he was carrying an illicit drug (marijuana), this established probable cause for an arrest-thus justifying a search of McGuire's pocket incident to arrest.

McGuire points out that Johnson testified at the evidentiary hearing that he did not believe McGuire when McGuire asserted that the baggie contained marijuana. But Johnson's testimony reveals that he did not think that McGuire was jesting about possessing illicit drugs. Rather, Johnson disbelieved McGuire's assertion only in the sense that Johnson was fairly sure that McGuire, when he admitted to possessing marijuana, was attempting to conceal the fact that his crime was more serious than possession of marijuana.

Here, the crucial fact is that McGuire admitted that he was currently breaking a drug law in Johnson's presence. Even though there may have been some uncertainty as to the degree of McGuire's offense, his statement provided probable cause for an arrest and a search incident to arrest-thus justifying Johnson in removing the baggie from McGuire's pocket.

Onee Johnson removed the baggie from McGuire's pocket and could see for himself that it contained bindles, Johnson could lawfully open these bindles and examine their contents.

For these reasons, we uphold Judge Greene's denial of McGuire's suppression motion.

Did Judge Greene abuse her discretion by denying McGuire's motion to reconsider?

McGuire argues that Judge Greene erred because she denied his motion to reconsider. We uphold the superior court's order unless we are convinced that the court abused its diseretion.

In his reconsideration motion, McGuire requested an additional evidentiary hearing about the scope of Trooper Johnson's pat-down search because he was not aware of Dickerson and the "authority presented by the state and relied on by the court in making its decision was not made known to defense counsel prior to hearing." But McGuire obviously knew that the seope of Trooper Johnson's pat-down search was the issue in the case because that was how McGuire himself framed the issue in the memorandum in support of his motion: the search was "beyond the scope of a limited pat-down search for weapons[.]' And the State said in the opposition it filed that "it is apparent that the discovery and seizure of the clear baggie containing cocaine resulted from a lawful plain view search. The frisk was lawful, Trooper Johnson immediately recognized that the plastic baggie he felt was consistent with the manner in which illicit drugs are packaged."

Dickerson had been decided more than five years before the hearing, and the State's memorandum in opposition informed McGuire that the State was relying on the plain-view doctrine as extended to the sense of touch. Furthermore, at the conclusion of the hearing, McGuire did not request to submit any additional briefing or present additional authority to the court. The case proceeded to argument on the motion with no objection or request for additional briefing from McGuire. Finally, as our discussion above shows, the record supports Trooper Johnson's seizure and examination of the cocaine bindles found on McGuire without resort to Dickerson. We conclude that Judge Greene did not abuse her discretion when she denied reconsideration.

Conclusion

The judgment of the superior court is AFFIRMED.

      . AS 11.71.030(a) (possession of cocaine with intent to deliver).

      . AS 11.71.040(a) (possession of cocaine).

      . See Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska 1974).

      . 843 P.2d 1254 (Alaska App.1992).

      . 20 P.3d 1115 (Alaska 2001).

      . 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993).

      . 392 U.S. 1, 88 S.Ct 1868, 20 L.Ed.2d 889 (1968).

      . See Schraff v. State, 544 P.2d 834, 847 (Alaska 1975) (upholding the seizure and ensuing war-rantless search of an aluminum foil "slip).

      . See Schraff, 544 P.2d at 847; see also Newhall, 843 P.2d at 1259 ("[UInder the Fourth Amendment to the United States Constitution,] a police officer may open a package under the plain view theory ... if the contents of the container [are] identifiable to a virtual certainty. The police are required to have more than probable cause to inspect the contents of the package; the officer can search the package only when the information which the officer has rises to a state of certitude, rather than mere prediction.") (internal quotes and citation omitted).

      . , Magden v. Alaska USA Federal Credit Union, 36 P.3d 659, 661 (Alaska 2001).