author: Worswick, J.

text:
    The AMERICAN WATERWAYS OPERATORS; Cruise Lines International Association - North West & Canada; Northwest Marine Trade Association ; Recreational Boating Association of Washington and Uncruise Adventures, Respondents, v. DEPARTMENT OF ECOLOGY, Appellant,
    No. 51547-4-II
    Court of Appeals of Washington, Division 2.
    Filed March 5, 2019
    Ronald L. Lavigne Jr., Attorney General Office/Ecology Division, Po Box 40117, Olympia, WA, 98504-0117, for Appellant.
    James A. Tupper Jr., Lynne Michele Cohee, Tupper Mack Wells PLLC, 2025 1st Ave. Ste. 1100, Seattle, WA, 98121-2100, for Respondent.
    Dionne Padilla-Huddleston, Office of the Attorney General, 800 Fifth Ave. Ste. 2000, Seattle, WA, 98104-3188, for Other Parties.
    PUBLISHED OPINION
   Worswick, J.

¶1 This appeal arises from the Washington State Department of Ecology's application to the United States Environmental Protection Agency (EPA) for permission to engage in rule making to prohibit marine vessel sewage discharge into Puget Sound. A section of Ecology's application was entitled "Certificate of Need," and claimed that Puget Sound required greater environmental protections than the federal standards provided.

¶2 The American Waterways Operators (the Operators) appealed the Certificate of Need to the Pollution Control Hearings Board. Ecology moved to dismiss the appeal, arguing that the Board did not have jurisdiction over the Certificate of Need. The Board agreed, and dismissed the appeal. The Operators appealed to the superior court and the superior court reversed the Board's order of dismissal. Ecology appealed from the superior court's decision reversing the Board.

¶3 We hold that the Board did not have jurisdiction to hear the Operators' appeal of the Petition's Certificate of Need. Accordingly, we reverse the superior court and affirm the Board's order dismissing the Operators' appeal.

FACTS

¶4 In 2016, Ecology sought to prohibit sewage discharge from all marine vessels in Puget Sound. Before a state agency can engage in rule making of this type, the agency must secure permission from the EPA. 33 U.S.C. § 1322(f)(3) ; 40 C.F.R. § 140.4. To obtain a complete prohibition of sewage discharge from vessels, the EPA requires an application that includes a "certification that the protection and enhancement of the waters described in the petition require greater environmental protection than the applicable Federal standard." 40 C.F.R. § 140.4.

¶5 Ecology filed a petition (the Petition) with the EPA for permission to regulate sewage discharge from vessels and designate Puget Sound as a "No Discharge Zone". Administrative Record (AR) at 7. The Petition included a required section entitled "Certificate of Need," explaining why Puget Sound required environmental protections greater than the federal standard.

¶6 After Ecology submitted the Petition to the EPA, the Operators appealed only the Petition's Certificate of Need to the Board. The Operators alleged that Ecology failed to establish that Puget Sound required greater environmental protection, and failed to provide a scientific or technical basis for its determination that Puget Sound required greater protections than the federal standards provided. The Operators did not appeal the application as a whole.

¶7 Ecology moved to dismiss the Operators' appeal, arguing that the Board did not have jurisdiction over the Petition's Certificate of Need. The Operators argued that because the Petition's Certificate of Need was a "certificate," the Board has jurisdiction to hear their appeal under RCW 43.21B.110(1)(d). AR at 403.

¶8 The Board granted Ecology's motion to dismiss, finding that "certificate" as used in RCW 43.21B.110 is "akin to licenses and permits, which provide an authorization to an applicant that is required by law for the applicant to proceed with an activity." AR at 720. In contrast, the Board found that the "EPA's use of the word 'certificate' in its regulations to describe the items required in a Petition for a [no-discharge zone] from a state [was] not determinative of the Board's jurisdiction." AR at 719.

¶9 The Board noted that Washington had discretion under the Clean Water Act (CWA) to determine that it wants to protect its waters at a higher level than the federal standards provide. Consequently, the Board ruled that the Petition and its Certificate of Need was a discretionary act over which the superior court, not the Board, has jurisdiction.

¶10 In the meantime, the EPA granted Ecology's application for permission to engage in rule making and designate Puget Sound a no-discharge zone. Washington State Department of Ecology Prohibition of Discharges of Vessel Sewage; Final Affirmative Determination, 82 Fed. Reg. 11218 (Feb. 21, 2017). The EPA's decision stated:

This determination does not itself constitute the designation of a no-discharge zone, rather, the State of Washington may now in its discretion finalize its proposed designation in accordance with state law and take the steps it deems appropriate to implement and enforce the discharge prohibition.

82 Fed. Reg. at 11218-19. Since then, Ecology proceeded with its rule making process and enacted rules regarding sewage discharge in Puget Sound. See WAC 173-228-010 to - 060.

¶11 The Operators appealed the Board's order of dismissal to the superior court. The superior court reversed the Board's order dismissing the Operators appeal. Ecology appeals.

ANALYSIS

¶12 The Operators argue that the Board erred by ruling that it lacked jurisdiction over their appeal of the Petition's Certificate of Need. Specifically, they argue that the Board (1) has jurisdiction because RCW 43.21B.110(1)(d) grants the Board jurisdiction over "certificates," (2) has heard other appeals over certificates issued by Ecology related to § 401 of the CWA and to the Coastal Zone Management Act (CZMA), (3) relied on inapplicable authority, (4) is the only available forum to review the Certificate of Need, and (5) erred by finding that there are no objective standards for reviewing "Ecology's actions." Br. of Resp't at 29.

¶13 The Board's power to hear appeals is limited to adjudication-that is, resolving the specific rights of a specific person or persons. Because the portion of the Petition under the heading Certificate of Need does not address the specific rights of specific persons, it does not fall within the Board's jurisdiction. Consequently, the Board correctly dismissed the Operators' appeal.

A. Legal Background-Clean Water Act & Vessel Discharge

¶14 The CWA prohibits states from adopting or enforcing regulations related to sewage discharge from vessels. 33 USC § 1322 (f)(1)(A). A state may, however, prohibit vessels from discharging sewage if the state "determines that the protection and enhancement of the quality of some or all of the waters within such State require greater environmental protection" and the EPA determines that adequate facilities for the safe and sanitary removal and treatment of sewage from all vessels are reasonably available. 33 USC § 1322(f)(3). To prohibit discharge, the state must apply to the EPA for permission. 33 USC § 1322(f)(3) ; 40 CFR § 140.4.

¶15 40 C.F.R. § 140.4 implements 33 USC § 1322(f)(3), and provides the requirements for the state's application. A state's application must include the following:

(1) A certification that the protection and enhancement of the waters described in the petition require greater environmental protection than the applicable Federal standard;
(2) A map showing the location of commercial and recreational pump-out facilities;
(3) A description of the location of pump-out facilities within waters designated for no discharge;
(4) The general schedule of operating hours of the pump-out facilities;
(5) The draught requirements on vessels that may be excluded because of insufficient water depth adjacent to the facility;
(6) Information indicating that treatment of wastes from such pump-out facilities is in conformance with Federal law; and
(7) Information on vessel population and vessel usage of the subject waters.

40 C.F.R. § 140.4.

¶16 Upon receipt of a state's application, the EPA is tasked with evaluating the reasonable availability of pump-out facilities. 40 CFR § 140.4. The EPA does not "review a State's findings or substitute its judgment for that of a petitioning State regarding the need for greater environmental protection." Br. of Appellant (Dep't of Ecology) at 7.

B. Board's Adjudicative Authority

¶17 The Operators argue that the Board has jurisdiction to hear their appeal of the Petition's Certificate of Need because RCW 43.21B.110(1)(d) provides jurisdiction over appeals of certificates. We disagree.

1. Legal Principles of Review

¶18 We review the Board's decisions under the Administrative Procedure Act (APA).

Port of Seattle v. Pollution Control Hr'gs Bd. , 151 Wash.2d 568, 587, 90 P.3d 659 (2004). We sit in the same position as the superior court, and we review the record before the Board. Hamilton v. Pollution Control Hearings Bd. , 5 Wash. App.2d 271, 281, 426 P.3d 281 (2018).

¶19 Under the APA, we may grant relief from the Board's order based on one of nine reasons listed in RCW 34.05.570(3), including that the order (1) is outside the Board's authority, (2) is based on an erroneous interpretation or application of the law, or (3) is arbitrary and capricious. RCW 34.05.570(3)(b), (d), (i). The party challenging the Board's decision has the burden of demonstrating the invalidity of that decision. RCW 34.05.570(1)(a).

¶20 Whether an issue falls within the scope of the Board's adjudicative powers is an issue of statutory interpretation that we review de novo. Port of Seattle , 151 Wash.2d at 592-93, 90 P.3d 659. Our fundamental objective in statutory interpretation is to give effect to the legislature's intent. Dep't of Ecology v. Campbell & Gwinn, L.L.C. , 146 Wash.2d 1, 9, 43 P.3d 4 (2002). If a statute's meaning is plain on its face, then we give effect to that plain meaning as an expression of legislative intent. Dep't of Ecology , 146 Wash.2d at 9-10, 43 P.3d 4.

2. RCW 43.21B.110

¶21 The Board is a quasi-judicial body, tasked with adjudicating environmental appeals. RCW 43.21B.010 ; Port of Seattle , 151 Wash.2d at 592, 90 P.3d 659. The Board has only the power granted to it by the legislature. Rosemere Neighborhood Ass'n v. Clark County , 170 Wash. App. 859, 873, 290 P.3d 142 (2012) ; Inland Foundry Co. v. Spokane County Air Pollution Control Auth. , 98 Wash. App. 121, 124, 989 P.2d 102 (1999).

¶22 In creating the Board, the legislature granted the Board certain adjudicatory functions, but it left rule making, interpretive, and enforcement functions with Ecology. Port of Seattle , 151 Wash.2d at 592, 90 P.3d 659 ; RCW 43.21B.010, .240. Ecology's authority to engage in rule making includes " 'everything lawful and necessary' " to effectively execute the power. Rosemere Neighborhood , 170 Wash. App. at 873, 290 P.3d 142 (quoting Tuerk v. Dep't of Licensing , 123 Wash.2d 120, 125, 864 P.2d 1382 (1994) ).

¶23 RCW 43.21B.110 defines the Board's subject matter jurisdiction. Under RCW 43.21B.110(1), the Board has jurisdiction to hear and decide appeals from certain enumerated "decisions" of Ecology and other environmental agencies relating to legal rights or interests of a specific person or persons. Hamilton , 5 Wash. App.2d at 281 ; see Inland Foundry , 98 Wash. App. at 124, 989 P.2d 102. Relevant here, RCW 43.21B.110(1)(d) provides that the Board has jurisdiction to hear appeals from decisions related to "the issuance, modification, or termination of any permit, certificate, or license by [Ecology]."

¶24 The Board's authority to hear appeals is limited by the provisions of chapter 34.05 RCW relating to adjudicative proceedings. RCW 43.21B.160. The "[Board] can only review questions of the application of rules and regulations in a particular case." Inland Foundry , 98 Wash. App. at 124, 989 P.2d 102. The Board does not have jurisdiction to hear appeals of Ecology's rule making proceedings. Inland Foundry , 98 Wash. App. at 124, 989 P.2d 102 ; see RCW 34.05.410(2).

3. Adjudicative Proceedings and Rule Making Proceedings

¶25 The Operators argue that the Board has jurisdiction over its appeal of the Certificate of Need because RCW 43.21B.110(1)(d) provides jurisdiction over the issuance of any certificate. Ecology argues that the Petition's Certificate of Need was a predicate to rule making and that the Board does not have jurisdiction to hear appeals from Ecology's rule making process. We agree with Ecology.

¶26 Both the Operators and Ecology agree that the Board lacks jurisdiction to hear appeals from Ecology's legislative activities, like rule making. Further, the parties agree that Ecology was required to ask the EPA for permission to engage in rule making related to vessel discharges and that Ecology did so in the Petition. However the parties disagree as to the characterization of the Certificate of Need. Accordingly, we must first determine whether the Certificate of Need is the type of decision that falls under the Board's adjudicative powers or whether it was part of Ecology's rule making process.

¶27 The APA defines rule making and adjudication. RCW 34.05.310, -.395; RCW 34.05.410, -.494. "Rule making" is the "process for formulation and adoption of a rule." RCW 34.05.010(18) ; see City of Vancouver v. Pub. Emp. Relations Comm'n , 180 Wash. App. 333, 362, 325 P.3d 213 (2014). A "rule" is

any agency order, directive, or regulation of general applicability (a) the violation of which subjects a person to a penalty or administrative sanction; (b) which establishes, alters, or revokes any procedure, practice, or requirement relating to agency hearings; (c) which establishes, alters, or revokes any qualification or requirement relating to the enjoyment of benefits or privileges conferred by law; (d) which establishes, alters, or revokes any qualifications or standards for the issuance, suspension, or revocation of licenses to pursue any commercial activity, trade, or profession, or (e) which establishes, alters, or revokes any mandatory standards for any product or material which must be met before distribution or sale.

RCW 34.05.010(16) (emphasis added).

¶28 On the other hand, an adjudicative proceeding is one where an opportunity for a hearing is required "before or after the entry of an order by the agency." RCW 34.05.010(1). The result of an adjudicative proceeding is an "order." City of Vancouver , 180 Wash. App. at 362, 325 P.3d 213. An " '[o]rder,' without further qualification, means a written statement of particular applicability that finally determines the legal rights, duties, privileges, immunities, or other legal interests of a specific person or persons ."

RCW 34.05.010(11)(a) (emphasis added). Therefore, the APA "plainly limits adjudication to resolving the rights and duties of specific persons." Snohomish County Pub. Transp. Benefit Area v. Pub. Emp. Relations Comm'n , 173 Wash. App. 504, 516, 294 P.3d 803 (2013). Accordingly, the Board's jurisdiction to hear appeals of certificates issued by Ecology is limited to those appeals addressing the rights and duties of specific persons.

¶29 The Petition's Certificate of Need is a declaration of Ecology's position on the importance of Puget Sound and Ecology's desire to restore water quality. It lacks the fundamental characteristics of an adjudicative decision. It does not particularly address the rights or other legal interests of any specific person or persons.

¶30 Moreover, as discussed above, the Board has adjudicatory authority, and adjudications are limited to "resolving the rights and duties of specific persons." Snohomish County Pub. , 173 Wash. App. at 516, 294 P.3d 803. And Ecology did not issue the Petition, including the Certificate of Need, to a specific person or project, or at the request of a specific person or project. Because the Certificate of Need does not determine the legal rights or interests of specific persons, it is not subject to adjudication by the Board under the APA.

¶31 The Petition was a part of Ecology's rule-making process. Specifically, it was Ecology's request to the EPA for permission to engage in rule making. 33 U.S.C. § 1322 ; 40 CFR § 140.4. As such, the Petition, including the Certificate of Need, was a prerequisite to Ecology's rule making. 33 U.S.C. § 1322 ; 40 CFR § 140.4 ; 82 Fed. Reg. at 11218, 2017 WL 666017. The Board does not have jurisdiction to hear appeals of Ecology's rules or rule making process. Inland Foundry , 98 Wash. App. at 124, 989 P.2d 102 ; see RCW 34.05.410(2). Because the Petition's Certificate of Need was part of Ecology's rule making process, the Board did not have jurisdiction to hear the Operators' appeal of it.

¶32 The Operators argue that RCW 43.21B.110 does not limit the Board's jurisdiction to appeals from decisions related to a specific individual or project. But the legislature has clearly limited the Board's authority to hear appeals to adjudicative proceedings. RCW 43.21B.160. And adjudicative proceedings concern specific rights of specific parties. RCW 34.05.010(1) ; City of Vancouver , 180 Wash. App. at 362, 325 P.3d 213. The Operators' argument is contrary to the legislature's grant of adjudicative authority and, therefore, fails. See RCW 34.05.410(2) ; RCW 43.21B.160 ; see also Inland Foundry , 98 Wash. App. at 124, 989 P.2d 102.

C. Other Certificates

¶33 The Operators argue that the Board has jurisdiction over the Certificate of Need because it has heard appeals of other certificates issued by Ecology. The Operators refer to § 401 certifications issued by Ecology, and to determinations on "consistency certifications" required by the CZMA. Ecology argues that both § 401 certifications and determinations related to consistency certifications are distinguishable because those certifications are specific to a project, and are required by law for a specific applicant to proceed with an activity. We agree with Ecology.

¶34 The EPA has designated Ecology as "the state water pollution control agency" for purposes of the federal clean water act, including administering a permit system. RCW 90.48.260 ; WAC 173-226-010 ; Port of Seattle , 151 Wash.2d at 591, 90 P.3d 659. An applicant for a federal license for a project that will likely result in discharge into navigable waters in Washington must obtain state certification that the project and discharge will not violate state water quality standards. 33 U.S.C. §§ 1341(a)(1), 1313 ; Port of Seattle , 151 Wash.2d at 589, 90 P.3d 659.

¶35 Under the CZMA, project proponents applying to the Federal Energy Regulatory Commission for licensing must include a "consistency certification" that the project complies with the state's coastal zone management program. Skokomish Indian Tribe v. Fitzsimmons , 97 Wash. App. 84, 86, 982 P.2d 1179 (1999) ; 16 U.S.C. § 1456. The project proponent must submit the certification to the state, and the state can either concur or object to the certification. 16 U.S.C. § 1456(c)(1)(C), (3)(A) ; 15 C.F.R. § 930.57 ; Skokomish Indian Tribe , 97 Wash. App. at 86, 982 P.2d 1179.

¶36 Both § 401 certifications and determinations on CZMA certifications are distinguishable from the Petition's Certificate of Need. Unlike the Petition's Certificate of Need, both § 401 certifications and determinations on CZMA certifications address the rights or other legal interests of a specific party or project. As discussed above, the Board has jurisdiction to hear appeals from decisions addressing the specific rights or other legal interests of specific parties or projects. See Inland Foundry , 98 Wash. App. at 124, 989 P.2d 102.

¶37 The Operators also assert that Ecology "routinely issues programmatic certifications for Nationwide Permits that at the point of issuance are not connected with any particular individual or any particular project." Br. of Resp't at 22. A nationwide permit is a general permit issued by the United States Army Corps of Engineers, if an activity and applicant satisfy specific conditions, for certain activities regulated by the CWA that will presumptively have minimal environmental impacts. 33 C.F.R. § 330.1. More importantly, a nationwide permit, like § 401 certifications and determinations on CZMA certifications, address the rights or other legal interests of a specific party or project. And as discussed above, the Board has jurisdiction to hear appeals from decisions addressing specific rights of specific parties or projects.

D. Other Forums

¶38 The parties agree that the superior court has original jurisdiction over review of some agency actions. The Operators argue that the Board is the only forum that can review the Certificate of Need. They appear to argue that they cannot challenge the Certificate of Need in superior court as an "other agency action" under RCW 34.05.570 because those types of actions must be based on allegations of an agency failing to act. Br. of Resp't at 26. However, the Operators do not provide authority supporting this proposition. " 'Where no authorities are cited in support of a proposition, the court is not required to search out authorities, but may assume that counsel, after diligent search, has found none.' " Hood Canal Sand & Gravel, LLC v. Goldmark , 195 Wash. App. 284, 296-97, 381 P.3d 95 (2016) (quoting DeHeer v. Seattle Post-Intelligencer , 60 Wash.2d 122, 126, 372 P.2d 193 (1962) ).

¶39 The Board noted that the superior court has jurisdiction over discretionary agency acts. Under the APA, a party may challenge an agency's rules or "other agency action," including the agency's discretionary actions. RCW 34.05.570(2) - (4). The party may do so by filing a petition for review in superior court. RCW 34.05.514 ; 34.05.570(4).

¶40 The Operators also argue that a challenge in superior court would have limited evidence and Ecology would be afforded significant deference. They would prefer to have a hearing before the Board where Ecology would not receive deference and they could have a "trial-like" proceeding. Br. of Resp't at 27. But the Operators' preferences cannot confer authority on the Board where the legislature has not done so. ¶41 We hold that the Board did not err in determining that it did not have jurisdiction, reverse the superior court's order, and affirm the Board.

We concur:

Lee, A.C.J.

Sutton, J.

      Ecology further argued that even if the Board had jurisdiction, the Board should dismiss the appeal based on the Operators' failure to name the EPA as an indispensable party, as required by WAC 371-08-340(2). WAC 371-08-340(2) provides that "[i]n every case, the agency whose decision is being appealed and the person to whom the decision is directed shall be named as parties." The Board did not address this argument, and Ecology does not offer related argument on appeal.

      33 USC § 1251 -1388.

      Washington State Department of Ecology Prohibition of Discharges of Vessel Sewage; Final Affirmative Determination, 82 Fed. Reg. 11218, accessible at https://www.epa.gov/sites/production/files/2017-02/documents/puget-sound-ndz-finaldetermination-02132017.pdf; 2017 WL 666017.

      The rules enacted after the EPA granted Ecology permission to engage in rule making are not the subject of this appeal.

      16 USC. § 1456.

      After receiving the parties' briefing, we requested supplemental briefing regarding whether the Operators' appeal is moot. A case is moot if a court can no longer provide effective relief. Westerman v. Cary , 125 Wash.2d 277, 286, 892 P.2d 1067 (1994). A court cannot provide an effective remedy where a party seeks to prevent an activity that has already occurred. Protectmarriage.com-Yes on 8 v. Bowen , 752 F.3d 827, 834 (9th Cir. 2014). After further consideration, we determined not to address the mootness issue because the Board did not have jurisdiction to hear the appeal.

      Facilities for the safe and sanitary removal and treatment of sewage are referred to as "pump-out facilities." See 40 CFR § 140.4 ; Washington State Department of Ecology Prohibition of Discharges of Vessel Sewage; Final Affirmative Determination, 82 Fed. Reg. at *11220.

      EPA's response to the Petition is accessible at https://www.epa.gov/sites/production/files/201702/documents/puget-sound-ndz-response-to-comments-01192017.pdf; see 33 USC § 1322 ; see also 40 CFR § 140.4.

      Ch. 34.05 RCW.

      A "certificate" of the type contemplated by former RCW 43.21B.110(1)(d) (2013) addresses specific rights of specific persons, and would fall within the definition of an "order." See, e.g. , RCW 90.03.330(1) (addressing Ecology's issuance of water right certificates to specific applicant); RCW 90.48.260 (addressing Ecology's issuance of § 401 certifications to specific applicants); Hamilton , 5 Wash. App.2d at 279-80 ; Port of Seattle , 151 Wash.2d at 591, 90 P.3d 659.

      33 USC § 1341.

      16 USC. § 1456.

      The Operators further argue that we should not "endorse Ecology's continued efforts to evade review of the Certificate of Need." Suppl. Br. of Resp't at 9 (capitalization omitted). The Operators contend that Ecology has sought to "draw out the litigation," evidenced by Ecology opposing the Operators' motion to stay and moving to dismiss for lack of jurisdiction. Suppl. Br. of Resp't at 9. The Operators appear to suggest that it was unfair for Ecology to engage in the adversarial proceeding that the Operators initiated in the forum that the Operators chose. The Operators have not provided any evidence that Ecology failed to do something it was required to do or that Ecology did something that it was not permitted to do. Thus, the Operators' policy argument fails.


source: Caselaw Access Project

author: KRICKEN, District Judge.

license: Public Domain

text:
    Darrel David GOETZEL, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    S-18-0197
    Supreme Court of Wyoming.
    March 6, 2019
    Representing Appellant: Pro se
    Representing Appellee: Peter K. Michael, Wyoming Attorney General; Christyne M. Martens, Deputy Attorney General; Caitlin F. Harper, Senior Assistant Attorney General; Katherine A. Adams, Senior Assistant Attorney General
    Before DAVIS, C.J., and FOX, BOOMGAARDEN, and GRAY, JJ., and KRICKEN, D.J.
   KRICKEN, District Judge.

[¶1] Appellant, Darrel Goetzel, challenges the district court's denial of his petition for post-conviction relief. This Court concludes that res judicata bars his claims and affirms on those grounds.

ISSUE

[¶2] In his appeal, Goetzel states the issue(s) as follows:

The Defendant's motion was barred by res judicata by the District Court. Further the Wyoming Supreme Court barred the Defendant[']s claim in a prior case with similar issues [sic] this is due to ineffective assistance of appellate counsel. More specifically appellate counsel never submitted critical information provided by the defendant, one of the issues relating to the subject of res judicata, as well as ineffective assistance of appellate counsel. However the defendant believes res judicata should not apply in this case because the defendant is filing this appeal under the new Wyoming Statute § 7-12-401 through 407, 7-6-107, 7-14-103, and 7-14-105"factual innocence actual innocence." The actual issue the Defendant would like to bring to this court[']s attention is the defendant was convicted of a two count violation of Wyoming Criminal Statutes § 6-5-204 Interference with a peace officer and § 6-5-207 Escape by violence or assault. The issue before the Court is whether the charging, conviction, or consecutive sentencing of the defendant pursuant to two general statutes for the same conduct subjected him to Double Jeopardy in violation of the Constitutional guarantees of either the Wyoming or United States Constitutions?

The State of Wyoming generally rephrases the issue as:

Res judicata bars the relitigation of claims raised and decided in previous criminal proceedings. It also bars litigation of issues that could have been determined in a prior proceeding. The district court determined that res judicata barred Goetzel's petition for post-conviction relief because he could have raised his underlying claims earlier. Did the district court err?

FACTS

[¶3] This Court previously summarized the relevant background facts as follows:

While being booked on various charges at the Goshen County Detention Center, Appellant hit the officer in charge, who fell to the floor. Appellant then kicked him in the head, causing severe injuries to the officer. Appellant used the officer's radio to ask for the door to be unlocked. The door was opened, and he fled from the facility, taking the radio with him. He was apprehended six days later in Nebraska. Following his arrest, Appellant was charged with felony interference with a peace officer, felony escape, and felony larceny. About six weeks later, in a separate docket, Appellant was charged with the additional crimes for which he had originally been arrested. Those crimes included possession of a controlled substance, felony larceny, two counts of burglary, and four counts of forgery. Pursuant to a plea agreement, the State dismissed several of the charges and Appellant pled guilty to burglary, forgery, felony larceny, felony escape, and felony interference with a peace officer.

Goetzel v. State , 2017 WY 141, ¶ 3, 406 P.3d 310, 311 (Wyo. 2017) ( Goetzel I ). The district court sentenced Goetzel to concurrent sentences of four-to-seven years of incarceration for burglary and forgery. It also sentenced him to five-to-eight years of incarceration for larceny and nine-to-ten years for escape, to be served concurrently with each other but consecutively to the sentences for burglary and forgery. Finally, the court sentenced Goetzel to nine-to-ten years of incarceration for interference with a peace officer, to be served consecutively to his sentences for larceny and escape. Goetzel did not appeal his judgment and sentence. Id.

[¶4] In July 2012, Goetzel filed a Motion For Sentence Reduction , which was denied on its merits. In August 2015, Goetzel filed a pro se Motion For Sentance [sic] Modification , in which he sought to serve his sentences for interference with a peace officer and escape concurrently. This motion also was denied on the grounds that it was not timely filed. Goetzel did not present a double jeopardy claim in any of these motions, nor did he appeal any of these district court orders denying the motions.

[¶5] In May 2016, Goetzel filed his Motion To Correct An Illegal Sentence , challenging his sentences for interference with a peace officer and escape on double jeopardy grounds. He argued that his sentences constituted multiple punishments for the same offense, namely conduct that he characterizes as "one violent escape from county jail." The district court denied Goetzel's 2016 motion to correct an illegal sentence on its merits, concluding that Wyo. Stat. Ann. § 6-5-204(b) (interference with a peace officer) and Wyo. Stat. Ann. § 6-5-207 (escape) each contain an element that the other does not. Thus, under the Blockburger ("same elements") test, Goetzel's convictions and sentences did not violate the protection against double jeopardy. See Blockburger v. United States , 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932) ; Sweets v. State , 2013 WY 98, 307 P.3d 860 (Wyo. 2013). Goetzel appealed.

[¶6] In Goetzel I , this Court determined that the doctrine of res judicata barred Goetzel's double jeopardy claim, opining:

Our precedent is clear that the principle of res judicata may be applied to claims brought pursuant to W.R.Cr.P. 35(a). See, e.g., Hamill v. State , 948 P.2d 1356, 1358-59 (Wyo. 1997). In Hamill , we rejected the appellant's argument that, because Rule 35 states that a motion to correct an illegal sentence may be brought at any time, it is not subject to bar under the doctrine of res judicata. Id.
Gould v. State , 2006 WY 157, ¶ 14, 151 P.3d 261, 266 (Wyo. 2006). Res judicata bars issues that were previously raised and considered, and also issues that "could have been raised in an earlier proceeding" but were not. Id. , ¶ 15, 151 P.3d at 266 (emphasis omitted).
Appellant raised his double jeopardy claim for the first time in his 2016 motion to correct an illegal sentence. He could have raised his double jeopardy claim in 2011 in a direct appeal from the district court's judgment and sentence. He could have raised the claim when he filed his motion for sentence reduction in 2012. However, he stated in this motion that he did "not question any of the substantive or procedural underpinnings of his original sentence." Appellant could have raised his double jeopardy claim in 2015 when he filed his motion for sentence modification.
Appellant suggests two reasons we should not apply res judicata in his case. First, he points out that the State did not argue before the district court that res judicata barred his claim. He asserts that res judicata "may be waived." He cites no legal authority to support this assertion. To the contrary, "[w]e have routinely disposed of claims on res judicata grounds without regard to whether the issue was raised before the district court." Ferguson v. State , 2013 WY 117, ¶ 11, 309 P.3d 831, 834 (Wyo. 2013) (citing Kurtenbach v. State , 2013 WY 80, 304 P.3d 939 (Wyo. 2013) ); see also Lunden v. State , 2013 WY 35, 297 P.3d 121 (Wyo. 2013).
Second, Appellant contends that trial courts have the "power to hear post-conviction relief motions" if a defendant makes "a showing of cause ... sufficient to avoid the waiver rule." We have previously recognized that res judicata may not bar a claim if there is a showing of good cause for failing to raise the claim in prior proceedings. See Bird [v. State , 2015 WY 108], ¶ 10, 356 P.3d [264] 267 [ (Wyo. 2015) ]. In this appeal, however, Appellant has failed to present any facts or circumstances demonstrating good cause for not raising his double jeopardy claim in earlier proceedings. We find both of Appellant's contentions unconvincing, and conclude that his claim is barred by res judicata.

Goetzel I , ¶¶ 7-10, 406 P.3d at 311-12 (emphasis added and footnote omitted).

[¶7] Thereafter, in March 2018, Goetzel filed a Petition for Writ of Certiorari , effectively seeking to appeal, again, regarding the denial of his motion to correct an illegal sentence, this time on the grounds that his appellate counsel was ineffective. This Court denied Goetzel's request, explaining that, although the district court had appointed counsel for Goetzel in his appeal of the denial of his motion to correct an illegal sentence, he actually had no constitutional right to counsel in that appeal and, thus, could not be deprived of effective assistance of counsel. Goetzel v. State , S-18-0066, Order Denying Pet. for Writ of Cert. , at 1 (March 27, 2018) (citing Hawes v. State , 2016 WY 30, ¶ 21, 368 P.3d 879, 886 (Wyo. 2016) ).

[¶8] Two months later, Goetzel filed his current Petition for Post-Conviction Relief Under the "Post-Conviction Determination of Factual Innocence Act." Goetzel claimed to file his Petition under both the Post-Conviction Determination of Factual Innocence Act, Wyo. Stat. Ann. §§ 7-12-401 through -407, and Wyoming's post-conviction relief statutes, §§ 7-14-101 through -108, as amended in 2018. See 2018 Wyo. Sess. Laws Ch. 77, § 2. Therein, Goetzel argued, again, that his sentences for interference with a peace officer and escape violated the double jeopardy provisions of the United States Constitution and the Wyoming Constitution. He also asserted that his trial counsel was ineffective for foregoing an appeal. The district court denied Goetzel's petition on three grounds: first, the Petition did not comply with the statutory requirements for a petition filed under the Factual Innocence Act, see Wyo. Stat. Ann. § 7-12-403(b) ; second, Goetzel's claims were barred by res judicata ; and, third, his petition did not present a valid contention supported by cogent argument. This appeal followed.

STANDARD OF REVIEW

[¶9] Whether Goetzel's claims are barred by the doctrine of res judicata is a question of law that this Court reviews de novo. See Nicodemus v. State , 2017 WY 34, ¶ 9, 392 P.3d 408, 411 (Wyo. 2017) ; Poignee v. State , 2016 WY 42, ¶ 12, 369 P.3d 516, 518 (Wyo. 2016) ; Bird v. State , 2015 WY 108, ¶ 9, 356 P.3d 264, 267 (Wyo. 2015) (citing Ferguson v. State , 2013 WY 117, ¶ 8, 309 P.3d 831, 833 (Wyo. 2013) ).

DISCUSSION

[¶10] Although Goetzel urges this Court to reach his underlying double jeopardy claims, as before, this Court declines to do so on the grounds that Goetzel's claims on appeal are barred by the doctrine of res judicata and Goetzel has presented no good cause to circumvent that conclusion.

[¶11] Res judicata bars litigation of issues that were or could have been determined in a prior proceeding. See Nicodemus , ¶ 11, 392 P.3d at 411. The "doctrine of res judicata is a rule of universal law pervading every well-regulated system of jurisprudence. The doctrine arises through public policy and necessity, it being in the interest of the state that there should be an end to litigation." Poignee , ¶ 12, 369 P.3d at 518 (quoting Rubeling v. Rubeling , 406 P.2d 283, 284 (Wyo. 1965) (citing 50 C.J.S. Judgments § 592 (2015) ) ).

[¶12] In his current petition for post-conviction relief, Goetzel challenges the same convictions and sentences he challenged in his 2016 motion to correct an illegal sentence, and on the same grounds - double jeopardy. In Goetzel's previous appeal from the denial of his motion to correct an illegal sentence, this Court previously concluded that, because Goetzel could have raised his double jeopardy claims in a direct appeal from the district court's judgment and sentence; could have raised the claim when he filed his motion for sentence reduction in 2012; and could have raised his double jeopardy claim in 2015, when he filed his motion for sentence modification, res judicata precluded him from raising those issues therein. See Goetzel I , ¶¶ 6-10, 406 P.3d at 311-12. The same rationale continues to apply to these proceedings.

[¶13] However, an appellant may be able to overcome the application of the doctrine of res judicata where he can show "good cause" why the issue was not raised earlier. See DeMillard v. State , 2014 WY 105, ¶ 10, 332 P.3d 534, 537 (Wyo. 2014). Relying on that potential exception, Goetzel asserts, first, that res judicata should not apply because he has filed his new post-conviction petition, and this appeal, under new and/or newly amended Wyoming Statutes, most particularly the Post-Conviction Determination of Factual Innocence Act, Wyo. Stat. Ann. §§ 7-12-401 et seq. and Wyo. Stat. Ann. §§ 7-14-101 et seq. , as amended in 2018. Goetzel cites no authority for this assertion and, on those grounds alone, this Court rejects it. See Bruckner v. State , 2018 WY 51, ¶ 17, 417 P.3d 178, 182 (Wyo. 2018).

[¶14] Further, it is well established that there are procedural limitations in post-conviction relief filings:

(a) A claim under this act is procedurally barred and no court has jurisdiction to decide the claim if the claim:
(i) Could have been raised but was not raised in a direct appeal from the proceeding which resulted in the petitioner's conviction;
(ii) Was not raised in the original or an amendment to the original petition under this act; or
(iii) Was decided on its merits or on procedural grounds in any previous proceeding which has become final.

Wyo. Stat. Ann. § 7-14-103. As such, issues that could have been presented on direct appeal are foreclosed from challenge by and through petitions for post-conviction relief due to the application of the doctrine of res judicata . See Cutbirth v. State , 751 P.2d 1257, 1261 (Wyo. 1988) ; see also Nixon v. State , 2002 WY 118, ¶ 16, 51 P.3d 851, 855 (Wyo. 2002).

[¶15] Finally, nothing in any of the statutory provisions relied upon by Goetzel provides grounds to conclude that res judicata would not apply to substantive claims raised in the context of newly adopted/amended statutes where those same claims could have been raised under prior statutes and prior proceedings. Indeed, this Court has rejected an analogous claim before. See Deloge v. State , 2012 WY 128, ¶¶ 11-12, 289 P.3d 776, 778-80 (Wyo. 2012) (rejecting claim that res judicata should not apply due to statutory changes and stating, "[t]he fact that Wyo. Stat. Ann. § 6-2-306 was amended in 2007, and now provides that an enhanced sentence may only be imposed when the defendant has a previous conviction for a similar offense, does not change the nature of Appellant's claim"). Thus, Goetzel's assertion that the doctrine of res judicata should not apply to this appeal in light of the "new" procedural vehicle that he now has chosen to present his issues to this Court is unpersuasive.

[¶16] As his second contention, Goetzel asserts that res judicata should not apply because he received ineffective assistance of trial counsel and appellate counsel. With respect to his ineffective assistance of trial counsel claims, Goetzel could have raised those concerns on direct appeal. "[G]enerally a petitioner cannot raise the issue of ineffective assistance of his trial counsel for the first time in a petition for post-conviction relief because that issue could have been raised in the direct appeal and is therefore foreclosed by the doctrine of res judicata." Keats v. State , 2005 WY 81, ¶ 12, 115 P.3d 1110, 1116 (Wyo. 2005) (internal citations omitted). With respect to his claims of ineffective assistance of appellate counsel, this Court already foreclosed that line of argument in its opinion rendered in its Order Denying Petition for Writ of Certiorari , wherein this Court explained:

Petitioner claims his appointed appellate attorney was ineffective in the appeal from that order. See Goetzel v. State , 2017 WY 141, 406 P.3d 310 (Wyo. 2017). Although the district court appointed counsel for Petitioner in that appeal, Petitioner had no constitutional right to counsel in that appeal. Hawes v. State , 2016 WY 30, ¶ 21, 368 P.3d 879, 886 (Wyo. 2016) ("A motion to correct an illegal sentence is not a critical stage of a criminal case and, accordingly, there is no requirement that counsel be appointed to represent a defendant on such a motion."). Because Petitioner had no right to counsel regarding his motion to correct illegal sentence, he had no right to effective assistance of counsel. Wainwright v. Torna , 455 U.S. 586, 587-88, 102 S.Ct. 1300, 1301, 71 L.Ed.2d 475 (1982) ("Since respondent had no constitutional right to counsel, he could not be deprived of the effective assistance of counsel by his retained counsel's failure to file the application timely.").

Goetzel v. State , S-18-0066, Order Denying Pet. for Writ of Cert. , at 1 (Mar. 27, 2018). Accordingly, Goetzel's claims of ineffective assistance of (trial and appellate) counsel do not constitute good cause to overcome application of the doctrine of res judicata .

[¶17] Third, and finally, Goetzel asserts that res judicata should be inapplicable because his earlier motions for a sentence reduction and a sentence modification were not recognized, at that time, as proper procedural vehicles for the assertion of double jeopardy claims. See Tucker v. State , 2015 WY 65, ¶ 7 n.1, 349 P.3d 987, 988 n.1 (Wyo. 2015) (referencing Mebane v. State, 2014 WY 72, 326 P.3d 928 (Wyo. 2014) ).

[¶18] This Court since has clarified that double jeopardy issues can be addressed under Wyoming Rule of Criminal Procedure 35, including motions to correct an illegal sentence and motions for sentence reduction. See Mebane v. State, 2014 WY 72, 326 P.3d 928 (Wyo. 2014) ; Beck v. State , 2005 WY 56, ¶ 10, 110 P.3d 898, 901 (Wyo. 2005) (concluding that a defendant was precluded from raising double jeopardy claims because he did "not challenge his sentence or the denial of his motion for sentence reduction, in which he asserted double jeopardy, and he cannot do so now"). This rule, which was recognized in Goetzel I , has carried forward to other criminal cases, with similar results:

This case is similar to Goetzel . In Goetzel , the defendant was sentenced to consecutive sentences for felony interference with a peace officer and felony escape, and he did not appeal his 2011 conviction and sentence. Goetzel , ¶ 3, 406 P.3d at 311. In 2012, Goetzel filed a motion for sentence reduction, which was denied, followed in 2015 by a motion for sentence modification, which was also denied. Id. ¶ 4, 406 P.3d at 311. In 2016, Goetzel filed a Rule 35(a) motion in which he, for the first time, raised a double jeopardy claim. Id. ¶ 5, 406 P.3d at 311. We held that Goetzel's double jeopardy claim was barred by res judicata because it was not raised in a direct appeal or in any of Goetzel's prior motions. Id. ¶ 10, 406 P.3d at 312. We observed:
Appellant raised his double jeopardy claim for the first time in his 2016 motion to correct an illegal sentence. He could have raised his double jeopardy claim in 2011 in a direct appeal from the district court's judgment and sentence. He could have raised the claim when he filed his motion for sentence reduction in 2012. However, he stated in this motion that he did "not question any of the substantive or procedural underpinnings of his original sentence." Appellant could have raised his double jeopardy claim in 2015 when he filed his motion for sentence modification.
Goetzel , ¶ 8, 406 P.3d at 311.
The same is true in this case. Mr. Hicks could have raised his double jeopardy claim in a direct appeal or in one of his four motions requesting a reduction in his sentence, but he did not. The first time Mr. Hicks asserted a double jeopardy claim was in his 2017 Rule 35(a) motion.

Hicks v. State , 2018 WY 15, ¶¶ 13-14, 409 P.3d 1256, 1259 (Wyo. 2018).

[¶19] Importantly, Goetzel never asserted, in his previous appeal from his motion to correct an illegal sentence or in any of his previous motions, that he somehow was precluded from raising double jeopardy issues. This doctrine has been established in Wyoming under these circumstances since 2005, if not before. The results are clear. Despite the legal and procedural ability to do so, Goetzel did not present any issue of double jeopardy in any direct appeal from his conviction; in his 2012 motion for sentence reduction; or in his 2015 motion or sentence modification. He has presented this Court with no argument that he was prevented from doing so. Where, as here, a defendant could have raised an issue, such as double jeopardy, but did not do so, the doctrine of res judicata soundly applies. Goetzel has not presented this Court with good cause to avoid an application of the doctrine of res judicata under the facts of this case. His claims are appropriately barred.

CONCLUSION

[¶20] In this appeal, Goetzel has failed to present any facts or circumstances demonstrating good cause for not raising his double jeopardy claim in earlier proceedings. This Court concludes that his claims remain barred by the doctrine of res judicata. Affirmed.

      The district court actually cited to Wyo. Stat. Ann. § 7-14-403(b) but, as there was no such statute in existence, likely intended to cite to Wyo. Stat. Ann. § 7-12-403(b), which provides:
      (b) The petition shall contain an assertion of factual innocence under oath by the petitioner and shall aver, with supporting affidavits or other credible documents, that:
      (i) Newly discovered evidence exists that, if credible, establishes a bona fide issue of factual innocence;
      (ii) The specific evidence identified by the petitioner establishes innocence and is material to the case and the determination of factual innocence;
      (iii) The material evidence identified by the petitioner is not merely cumulative of evidence that was known, is not reliant solely upon recantation of testimony by a witness against the petitioner and is not merely impeachment evidence;
      (iv) When viewed with all other evidence in the case, whether admitted during trial or not, the newly discovered evidence demonstrates that the petitioner is factually innocent; and
      (v) Newly discovered evidence claimed in the petition is distinguishable from any claims made in prior petitions.
      Wyo. Stat. Ann. § 7-12-403(b) (Supp. 2018).

      Notably, in this appeal, Goetzel challenges only the district court's application of the doctrine of res judicata . He does not challenge on appeal the district court's other two independent grounds for denying his Petition for Post-Conviction Relief under the "Post-Conviction Determination of Factual Innocence Act ."

      Neither Goetzel's motion for sentence reduction, nor his motion for sentence modification, raised double jeopardy issues. He did, however, raise double jeopardy as grounds for his motion to correct an illegal sentence, which was the subject of his previous appeal to this Court.

      Instead, Goetzel expressly stated that he did not question "any of the substantive or procedural underpinnings of his original sentence."

      This Court recognizes that there may be occasions where a criminal defendant fails to raise double jeopardy issues in a motion for sentence reduction, brought under W.R.Cr.P. 35(b), within the one-year time limit, which may be brought in a later motion to correct an illegal sentence under W.R.Cr.P. 35(a), with its indefinite time limit. This Court is not called upon at this time to address whether the "good cause" exception to the doctrine of res judicata may apply under those circumstances.


author: CARNEY, Justice.

text:
    John STRONG, Appellant, v. James WILLIAMS, Suzie Williams, and Municipality of Anchorage, Appellees.
    Supreme Court No. S-16730
    Supreme Court of Alaska.
    December 14, 2018
    Kenneth P. Jacobus, Kenneth P. Jacobus, P.C., Anchorage, for Appellant.
    Samuel C. Severin, Assistant Municipal Attorney, and Rebecca A. Windt Pearson, Municipal Attorney, Anchorage, for Appellee, Municipality of Anchorage.
    Notice of nonparticipation filed by David W. Pease, Burr, Pease & Kurtz, Anchorage, for Appellees James Williams and Suzie Williams.
    Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and Carney, Justices.
   CARNEY, Justice.

I. INTRODUCTION

A man sued his neighbors, alleging that an access road on their property caused flooding on his property. After he reached a settlement with the neighbors, the man stipulated to a dismissal of his claims with prejudice. Three years later the man again sued the neighbors as well as the Municipality of Anchorage, alleging that the flooding had continued and asserting new claims of nuisance, trespass, intentional infliction of emotional distress, and breach of contract. The superior court granted summary judgment for the Municipality on the basis of either collateral estoppel or res judicata. The man appeals; we reverse the grant of summary judgment and remand for further proceedings.

II. FACTS AND PROCEEDINGS

A. Facts

John Strong has owned property in Anchorage since 1974. He alleges that his house and property have regularly flooded since the neighboring landowners built an access road to their property in the 1980s. The Municipality became aware of the flooding by 1993.

James and Suzie Williams owned the property by 2010, when Strong initiated his first lawsuit related to the flooding. Strong sued them for trespass and nuisance and asked the court to order them to abate the flooding and award Strong compensatory and punitive damages.

In March 2011 Strong signed a Release and Settlement Agreement releasing the Williamses from any and all claims related to Strong's property damage or the access road. He released the claims in exchange for $7,500 and an agreement that the Williamses would upgrade the driveway according to agreed-upon specifications. The agreement stated that the parties intended to "release all individuals, firms, or corporations who could at any future date be possible defendants in any action arising out of the claims."

Strong filed a stipulation to dismiss all claims with prejudice in July 2012. The superior court accepted the stipulation and dismissed the lawsuit.

B. Proceedings

In July 2015 Strong filed another complaint against the Williamses and added the Municipality of Anchorage. He again alleged that his property had frequently flooded since the access road was built in the 1980s. Strong contended that the Municipality had declared the road a nuisance but had never enforced an abatement order. He brought claims of nuisance, intentional infliction of emotional distress (IIED), trespass, and breach of contract against the Williamses and the Municipality. Strong asked the superior court to order the defendants to remove the access road and take steps to restore the flow of groundwater that it had obstructed. He also asked the court to award him compensatory damages for repairs, mental anguish, and the costs of addressing the flooding, as well as punitive damages and attorney's fees.

The Municipality answered his complaint less than a month later, arguing that Strong's claims were barred by a number of doctrines, including res judicata and collateral estoppel. Strong admitted in response to discovery requests that he was seeking only equitable, not monetary, relief from the Municipality and was not claiming trespass or IIED against the Municipality.

Nearly a year later the Municipality filed a motion for summary judgment arguing that collateral estoppel (or issue preclusion) barred Strong's claims. The Municipality also contended that, because it was not a party to the earlier settlement between Strong and the Williamses, it could not be liable for any breach of contract claim. Strong opposed the motion and the superior court heard oral argument in December.

The superior court orally ruled that "[c]ollateral estoppel applies with regard to claims based on everything that was settled to the same extent that it applies in favor of the Williams[es]" and that there could be no breach of contract claim against the Municipality because it was not a party to the settlement agreement. The court gave Strong 30 days to amend his complaint to state a viable claim against the Municipality; he did not file an amended complaint.

On April 12, 2017 the superior court issued a written decision granting summary judgment to the Municipality. It relied on a different theory in its written decision than its oral decision to find that Strong's claims were precluded: it held that res judicata barred Strong's nuisance and trespass claims against the Municipality and that collateral estoppel barred Strong's IIED claim. The court also granted judgment to the Municipality on Strong's claim for breach of contract because the Municipality was not a party to the settlement agreement. The court dismissed the Municipality as a party and entered final judgment in its favor.

Strong appeals.

III. STANDARD OF REVIEW

When an appeal "involves a ruling on summary judgment and presents a question of law," we "apply a de novo standard of review, 'adopting the rule of law that is most persuasive in light of precedent, reason, and policy.' " "The question whether res judicata or collateral estoppel applies is a question of law, which we ... review de novo."

IV. DISCUSSION

Strong does not appeal the dismissal of his breach of contract claim and he admitted during discovery that he was not suing the Municipality for IIED. We therefore consider only Strong's nuisance and trespass claims.

The superior court gave two different explanations for granting summary judgment on the nuisance and trespass claims. It relied on collateral estoppel in its oral findings and res judicata in its written findings. Because "[w]e may affirm a grant of summary judgment on any basis appearing in the record," we consider both theories. We find that neither theory supports the grant of summary judgment and therefore reverse.

A. Res Judicata Does Not Apply.

The trial court ruled that res judicata precluded Strong's trespass and nuisance claims against the Municipality in its written decision. Neither party explicitly raises the issue of res judicata on appeal, but Strong implies that res judicata does not apply because he argues there was a lack of privity between the Williamses and the Municipality. To address this argument we examine the doctrine of res judicata and its application to this case.

"A judgment is given res judicata effect by this court when it is (1) a final judgment on the merits, (2) from a court of competent jurisdiction, (3) in a dispute between the same parties (or their privies) about the same cause of action." The Municipality was not a party to Strong's first lawsuit. The lawsuit's dismissal with prejudice cannot have a res judicata effect against the Municipality because it does not satisfy the third prong: it does not involve the same parties or parties in privity. We have stated that

[A] non-party will be found to have been in privity with a party to a prior legal proceeding only if that non-party "(1) substantially participated in the control of a party's presentation in the adjudication or had an opportunity to do so; (2) agreed to be bound by the adjudication between the parties; or (3) was represented by a party in a capacity such as trustee, agent, or executor." [ ]

None of these circumstances apply. Because the Municipality was not in privity with the Williamses, res judicata cannot apply.

B. Collateral Estoppel Does Not Apply.

We next examine whether collateral estoppel, also called issue preclusion, applies. We have stated:

Collateral estoppel prohibits relitigation of issues actually decided in earlier proceedings where: (1) the party against whom the preclusion is employed was a party to or in privity with a party to the first action; (2) the issue precluded from relitigation is identical to the issue decided in the first action; (3) the issue was resolved in the first action by a final judgment on the merits; and (4) the determination of the issue was essential to the final judgment.[ ]

Strong argues that collateral estoppel does not apply because no issues were actually litigated and decided by the dismissal. We agree.

We have held that a stipulation to dismiss claims with prejudice has "the same res judicata effect as a final judgment after trial." The Municipality argues that we should apply this principle to our collateral estoppel analysis. But in Conitz v. Alaska State Commission for Human Rights we recognized an important difference between the two doctrines: "[I]t is not a requirement of res judicata that an issue was actually litigated, only that there was an opportunity to litigate it." On the other hand, collateral estoppel requires that "the issue was resolved in the first action by a final judgment on the merits." The issue therefore must "actually be litigated." In Jackinsky v. Jackinsky we explained that the "settlement prevented any issues from actually being litigated or determined." Citing the Restatement (Second) of Judgments section 27, we observed that this section "provides that the determination of actually litigated issues will have preclusive effect in later litigation." We quoted from section 27:

When an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim.[ ]

In the case before us, just like in Jackinsky , the "settlement prevented any issues from actually being litigated or determined." Thus the issues in Strong's complaint were not actually litigated. The stipulation to dismiss Strong's claims did not determine any factual or legal issues that might apply to claims against the Municipality.

We have previously recognized that "issue preclusion ordinarily does not attach [to a stipulation] unless it is clearly shown that the parties intended that the issue be foreclosed in other litigation." The Release and Settlement Agreement does not demonstrate such an intent. The settlement agreement was a "full and final compromise and settlement of any and all claims , disputed or otherwise, arising out of the allegations resolved by the Release and Settlement Agreement." (Emphasis added.) It also stated that the parties intended to release all future possible defendants "in any action arising out of the claims settled." This language demonstrates that the parties intended to settle the claims brought by Strong, not to finally determine the factual or legal issues in the lawsuit.

Strong analogizes this case to Sowinski v. Walker , where we considered the preclusive effect of a stipulation and settlement agreement on a subsequent legal proceeding. We found that the settlement, which provided that an access road was public land, did not determine the scope of the State's duty to maintain that road. Because no court had adjudicated the scope of the State's duty, we held that collateral estoppel could not apply. Similarly, in this case the settlement agreement in the earlier litigation does not determine the cause of the flooding or the scope of the Municipality's responsibility. Without a determination of factual or legal issues in that action, there is no determination of those issues that can have a preclusive effect in this one.

V. CONCLUSION

We REVERSE and REMAND for further proceedings in accordance with this opinion.

      The parties dispute what occurred in 1993 and the superior court made no findings related to it. Strong alleged that the Municipality "declared the dam a nuisance and issued an abatement order." The Municipality stated that it issued a notice to the owners of the neighboring property that the condition of the premises constituted a nuisance and was subject to abatement by timely compliance.

      The Williamses joined in the Municipality's motion.

      State Farm Mut. Auto. Ins. Co. v. Dowdy , 192 P.3d 994, 998 (Alaska 2008) (quoting State Farm Mut. Auto. Ins. Co. v. Lestenkof , 155 P.3d 313, 316 (Alaska 2007) ).

      McElroy v. Kennedy , 74 P.3d 903, 906 (Alaska 2003).

      Strong admitted during discovery that he was not bringing a trespass claim against the Municipality, but because the Municipality does not argue on appeal that he waived it, we will address it.

      Parson v. State, Dep't of Revenue, Alaska Hous. Fin. Corp. , 189 P.3d 1032, 1036 (Alaska 2008).

      Patterson v. Infinity Ins. Co. , 303 P.3d 493, 497 (Alaska 2013) (quoting Angleton v. Cox , 238 P.3d 610, 614 (Alaska 2010) ).

      State, Dep't of Health & Soc. Servs., Office of Children's Servs. v. Doherty , 167 P.3d 64, 73 (Alaska 2007) (quoting Powers v. United Servs. Auto. Ass'n , 6 P.3d 294, 298 (Alaska 2000) ).

      State, Dep't of Revenue v. BP Pipelines (Alaska) Inc. , 354 P.3d 1053, 1068 (Alaska 2015) (quoting Ahtna, Inc. v. State, Dep't of Transp. & Pub. Facilities , 296 P.3d 3, 8 (Alaska 2013) ).

      Tolstrup v. Miller , 726 P.2d 1304, 1306 (Alaska 1986).

      325 P.3d 501, 509 (Alaska 2014).

      BP Pipelines (Alaska) Inc. , 35 4P.3d at 1068 (quoting Ahtna, Inc. , 296 P.3d at 8 ).

      See In re Adoption of A.F.M. , 15 P.3d 258, 268 n.46 (Alaska 2001).

      894 P.2d 650, 655 (Alaska 1995).

      Id.

      Id. (quoting Restatement (Second) of Judgments § 27 (1982) ).

      Morris v. Horn , 219 P.3d 198, 209 (Alaska 2009) (alteration in original) (quoting 18A Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 4443 (2d ed. 2009) ).

      198 P.3d 1134, 1140-43, 1147-48 (Alaska 2008).

      Id. at 1148.

      Id.

      We do not address the parties' arguments about other elements of collateral estoppel or whether it was an abuse of discretion to apply collateral estoppel under the circumstances of this case.

      On remand the superior court may require Strong to clarify his claims and the relief he is seeking from the Municipality, as it remains unclear whether he has a viable claim against the Municipality.


text:
    Christopher Seegana HESS, Appellant, v. STATE of Alaska, Appellee.
    Supreme Court No. S-16466
    Supreme Court of Alaska.
    December 21, 2018
    Brooke Berens, Assistant Public Advocate, Anchorage, and Richard Allen, Public Advocate, Anchorage, for Appellant.
    Terisia K. Chleborad, Assistant Attorney General, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for Appellee.
    Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and Carney, Justices.
   CARNEY, Justice.

I. INTRODUCTION

A jury convicted Christopher Hess of second and third degree assault. He appealed, arguing that the superior court committed plain error by not addressing improper statements in the prosecutor's closing arguments. The court of appeals affirmed Hess's convictions and held that, although some of the prosecutor's statements were improper, they did not undermine the trial's fundamental fairness. Hess petitioned for hearing. We granted the petition and, finding plain error, reverse his convictions.

II. FACTS AND PROCEEDINGS

A. Facts

In September 2011 Anchorage police responded to a reported assault in progress at Patricia Hess's apartment. Officers found Patricia outside the apartment. She was extremely upset and appeared to be intoxicated. There was bruising on the front of her throat and the front of her pants was wet.

Patricia told one of the officers that she and her son, Christopher Hess, had argued and he had become angry. She said she struggled with him and he knocked her to the ground and began strangling her. Patricia said she lost control of her bladder while being strangled and almost blacked out, although she did not pass out.

The officers and a police dog entered the apartment looking for Hess. He was arrested after being found and bitten by the dog. Hess appeared intoxicated and when questioned, he denied strangling his mother. Officers took Hess to a hospital where he had surgery for the dog bite to his arm. The officers found Patricia's dentures, glasses, and a kitchen knife on the floor of the apartment.

B. Trial

Hess was indicted for one count of second degree assault for strangling Patricia and one count of third degree assault for recklessly placing her in fear of injury with a dangerous instrument (his hands around her neck). The case went to trial on both counts in August 2012.

The State called three witnesses: Patricia and two of the responding officers. Patricia testified that she did not remember much of what happened. She said she remembered drinking with Hess, becoming very drunk, and then walking home from the hospital. Patricia testified that it was "kind of like blackout" and that she remembered being in a patrol car, but could not remember meeting with police officers. Patricia said that she did remember having a sore neck the next day. On cross-examination Patricia testified that she had post-traumatic stress disorder (PTSD) after a sexual assault four years earlier. She stated that she took medication for the PTSD, as well as for depression, sleeplessness, pain, and high blood pressure. Patricia testified that the medicine made her bruise easily. She also said that when she was "stressed [she had] dissociation."

One of the police officers testified about his medical training-he testified that he had worked as an EMT before joining the police department-and what he had been taught were signs of possible strangulation. The signs included redness around the throat and neck, petechiae (small red spots caused by broken blood vessels in the eyes, hairline, or behind the ears), difficulty swallowing or breathing, and lost bladder and bowel control. The officer testified that Patricia had difficulty swallowing and appeared to have urinated on herself, but that he did not remember seeing petechiae or marks on her face. He testified that he had seen strangulation cases in which there were no petechiae. But he conceded on cross-examination that intoxication could cause people to urinate on themselves.

The other officer had interviewed Patricia and Hess at the scene. He testified that Patricia was intoxicated, upset, coughing a lot, and had bruises on her neck. He said that she seemed to be afraid of Hess and she said that he had strangled her after an argument. The officer testified that marks on Patricia's neck were consistent with finger marks but that he did not see any impression of a hand or fingers. He also stated that Hess was intoxicated, denied strangling his mother, and denied that his mother had almost passed out.

The defense presented four witnesses: Hess and three of Patricia's other family members. Each family member testified that Patricia had a reputation for untruthfulness and dishonesty. They testified that Patricia was even less truthful when drinking.

Hess testified that he lived with Patricia when she needed help managing her medical conditions, taking her medication, and taking care of household chores. He said that he was with his mother on the night of the alleged assault, but that he only remembered starting to drink in the afternoon and then waking up in the hospital after being bitten by a dog. He testified that he did not remember strangling his mother or putting his hands on her neck, and that he would never hurt his mother even if he was drunk. Hess said that his mother sometimes forgot to take her medication, exaggerated things, and was a danger to herself. The prosecutor impeached Hess's testimony with his convictions for crimes of dishonesty.

The State's closing argument focused on meeting the State's burden of proof and rebutting the defense's theory. The prosecutor told the jury that the defense wanted the jury to assume that Patricia was "crazy" and not to be trusted. After discussing the elements of charges against Hess, the prosecutor argued that they were not "going to be the biggest point. The biggest point is who do you believe?" He continued:

I warned you during my opening that the defense was going to go out of their way to make it look like the victim was crazy, to vilify the victim. And we talked about this in voir dire. In domestic violence crimes that's too often what happens. And if my demeanor was at any point in time less than professional, that's my frustration because this case isn't really about whether or not [Ms.] Hess is crazy. This case is about whether or not the defendant strangled his own mother, and that's the evidence that came in.

After briefly arguing that the evidence had shown beyond a reasonable doubt that Hess was guilty of the charged offenses, the prosecutor returned to whether Patricia was "crazy":

Now, I understand Ms. Hess has been through a lot. You heard her testimony. And she is sympathetic, and I am [not] suggesting that you [should have] sympathy for her.[ ] You're supposed to make this decision absent pity and prejudice or passion. You're supposed to be objective when you make this. And she paints a sympathetic figure, but think about the position she's in when the state calls her to the stand. Her whole family clearly is against this prosecution. They all came to the stand and called her a liar. Her own son got on the stand and had no problem saying she's crazy. And that's problematic, ladies and gentlemen, because you didn't really see any evidence that she was crazy.

He concluded by arguing Patricia's statements to the police were consistent with the physical evidence and that Hess's defense was not credible.

After discussing the State's burden of proof and the State's reliance upon Patricia's version of events, the defense questioned Patricia's credibility. Emphasizing that the State's case depended upon Patricia's credibility, the defense attorney responded to the prosecutor's comments about the defense's argument:

[T]here was a characterization that we're vilifying the victim. Now, to say that she has mental health issues, to say that she confuses reality from fantasy is not to vilify her.... We don't know what she was perceiving.... [W]e know [ ] that she was not on her mental health medication and she was intoxicated.

The prosecutor returned to his vilification theme in rebuttal:

[The defense attorney] says she is not vilifying the victim. She's not vilifying the victim. Maybe that's true and maybe that's not. We talked about it in voir dire. If she's not vilifying the victim, what she is suggesting is that someone who has had her teeth knocked out and been raped and is on medication can no longer ever be a victim. That's what she's suggesting to you, and that is what is offensive.
It doesn't make her a liar because she's been victimized in the past.

He then argued that Hess had reasons to lie to the jury, and that he should not be believed because he had "no qualms about making out his mother to be this crazy invalid, this helpless creature." The prosecutor argued that, on the other hand, Patricia had no motive to lie even though she was reluctant to testify and "[c]learly she is involved in a family that does not support her." Hess did not object to any of these statements as improper closing argument.

The jury convicted Hess on both counts.

C. Appeal

Hess argued for the first time in his brief to the court of appeals that the prosecutor's closing argument was improper. He acknowledged that he had not objected to the argument at trial, but he argued that the prosecutor's statements amounted to plain error under Adams v. State .

The court of appeals concluded that although some of the prosecutor's arguments were improper, they did not rise to the level of plain error. Relying upon its previous case of Rogers v. State , the court made its determination "in the context of the record as a whole" and concluded that the improper remarks did not "rob [the trial] of its fundamental fairness." The court did not address whether the improper remarks amounted to a constitutional violation.

We granted Hess's petition for hearing, and, applying the correct plain error test and finding plain error, we reverse Hess's conviction and remand for a new trial.

III. STANDARD OF REVIEW

Appellate courts are authorized to notice plain errors or defects, even when not brought to the court's attention, when they affect substantial rights.

IV. DISCUSSION

A. Alaska's Plain Error Test

We articulated the four-part test for plain error review in Adams v. State . All four factors must be met to determine whether plain error occurred:

(1) there must be error, and the error must not have been the result of an intelligent waiver or a tactical decision not to object; (2) the error must be obvious, meaning that it should have been apparent to any competent judge or lawyer; (3) the error must affect substantial rights, meaning that it must pertain to the fundamental fairness of the proceeding; and (4) the error must be prejudicial.[ ]

The Adams test differs from the federal test because it imposes an additional step not required under federal law. "[F]ederal plain error review is governed by a three-part test: (1) there must be error, and the right at issue must not have been intentionally relinquished; (2) the error must be plain, meaning obvious; and (3) the error must affect substantial rights, meaning it must have affected the outcome of the proceeding."

Unlike the inquiry required by the three-pronged federal plain error test, Alaska's standard separates the third prong into two steps. While federal appellate courts determine that an error affected substantial rights only when the error was prejudicial, we have interpreted the phrase " 'affect substantial rights' not to mean that the error was prejudicial, but instead to mean that the error pertains to an important right that could affect the fundamental fairness of the proceeding."

Having determined that an error pertains to the fundamental fairness of the proceeding, the court must next determine whether the error was prejudicial. We explained in Adams how courts are to make that determination:

A constitutional violation will always affect substantial rights and will be prejudicial unless the State proves that it was harmless beyond a reasonable doubt. An error that is not constitutional in nature will be prejudicial if the defendant proves that there is a reasonable probability that it affected the outcome of the proceeding.[ ]

Whether the error was of constitutional dimension thus establishes and assigns the burden of proof that must be met before the reviewing court can determine whether the error was prejudicial. Contrary to the court of appeals' decision and its reliance upon Rogers , prejudice does not depend upon whether the error was "sufficiently central to the trial so as to rob it of its fundamental fairness."

B. The Plain Error Test Applied To Hess's Case

We now examine the prosecutor's improper arguments under the Adams test. No argument has been made that Hess either waived his objection to the improper statements or made a tactical decision not to object. The first prong of the plain error test is satisfied.

The second prong is satisfied when the alleged error is obvious. The court of appeals found that the prosecutor's statements "improperly denigrated the defense lawyer's trial strategy by asserting that defense attorneys in general commonly engage in false 'vilification' of victims of domestic violence" and that "[t]he prosecutor was implicitly asking the jurors to reject Hess's defense, not because the defense lacked evidentiary support, but instead because of ... his unsupported accusation that defense attorneys commonly resort to underhanded or misleading tactics."

We agree that these arguments were improper. Both this court and the court of appeals have previously condemned similar arguments as prosecutorial misconduct and emphasized that closing arguments must be restricted "to the evidence presented at trial and the inferences that may fairly be drawn therefrom." Alaska's Rules of Professional Conduct place upon all attorneys the ethical obligation not to "allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence" and forbid a lawyer from asserting personal knowledge or stating a personal opinion about the issues before the trier of fact. Rule of Professional Conduct 3.8 establishes special responsibilities for prosecuting attorneys; its accompanying commentary begins with the reminder that a prosecutor "has the responsibility of a minister of justice and not simply that of an advocate." The American Bar Association's Criminal Justice Standard 3-6.8(c) reiterates these obligations, stating that "[a] prosecutor should not make arguments calculated to appeal to improper prejudices of the trier of fact." The comments in the closing arguments here attacking the defense attorneys and accusing Hess's counsel of vilifying the victim clearly violate these standards and were obvious error.

The third prong of the Adams test requires the reviewing court to determine whether the error "affect[ed] substantial rights, meaning that it ... pertain[ed] to the fundamental fairness of the proceeding." In Adams we concluded that the prosecutor's comments on the defendant's pre-arrest silence pertained to a substantial right because a defendant's pre-arrest silence is minimally probative and highly prejudicial.

The prosecutor's comments here likewise affected important rights that could affect the fundamental fairness of the proceeding. The prosecutor suggested that the jury should consider his personal opinion of defense attorneys and Hess's defense strategy. The prosecutor's attack on the defense strategy and defense counsel was inappropriate, the comments were of no probative value, and they created a high potential for unfair prejudice.

The fourth prong of the Adams test requires the reviewing court to determine whether the error was prejudicial. If an error affected a non-constitutional substantial right, the defendant must show "there is a reasonable probability that the error affected the outcome of the case." In Adams we considered the following factors to determine whether the defendant had shown whether "there [was] a reasonable probability that the error affected the outcome of the case": the weight of the State's other evidence, whether the case "hinged primarily on [ ] conflicting testimony," whether the statements occurred during closing arguments, whether the comments were "express" versus "brief and passing," and whether the comments were "directly elicited by the prosecutor's questioning." In Goldsbury v. State we recently restated that "prejudicial comments made during closing arguments are more likely to be prejudicial and less likely to be mitigated by curative instructions than are comments made during other parts of a trial."

The same considerations that led us to conclude that the error in Adams was prejudicial are present here. The prosecutor made several separate comments attacking the defense. He made them both during his initial closing argument and again during rebuttal. The trial court did not give a curative instruction. The improper statements went directly to the defense's theory of the case and aimed to discredit the defense attorney as well as her argument. Finally, as in Adams , the State's case depended largely on conflicting witness testimony. As a result "there is a reasonable probability that the error affected the outcome of the case."

V. CONCLUSION

Because the prosecutor's improper statements during closing arguments were plain error, we REVERSE Hess's convictions and REMAND for a new trial.

      See AS 11.41.210(a)(1) (a person who, with intent to cause physical injury to another, does so by means of a dangerous instrument, commits the crime of assault in the second degree).

      See AS 11.41.220(a)(1)(A) (a person who recklessly places another in fear of imminent serious physical injury by means of a dangerous instrument commits the crime of assault in the third degree); see also AS 11.81.900(15)(B) (defining "dangerous instrument" to include "hands or other objects when used to impede normal breathing or circulation of blood by applying pressure on the throat or neck or obstructing the nose or mouth").

      The bracketed language was omitted from the trial transcripts, but the alterations were agreed upon by the parties as present in the audio recording.

      261 P.3d 758 (Alaska 2011).

      Hess v. State , 382 P.3d 1183, 1185-87 (Alaska App. 2016).

      280 P.3d 582 (Alaska App. 2012).

      Hess , 382 P.3d at 1186-87.

      See id.

      Adams , 261 P.3d at 764.

      Id. at 773.

      Id.

      Id. at 772 n.72 (citing United States v. Olano , 507 U.S. 725, 732-35, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) ).

      Id.

      Id.

      Id.

      Id. at 773.

      Hess v. State , 382 P.3d 1183, 1186-87 (Alaska App. 2016) (citing Rogers v. State , 280 P.3d 582, 589 (Alaska App. 2012) ).

      See Adams , 261 P.3d at 773.

      Id. at 773.

      Hess , 382 P.3d at 1186.

      Patterson v. State , 747 P.2d 535, 538 (Alaska App. 1987) (approvingly discussing Standards for Criminal Justice § 3-5.8 ( Am. Bar Ass'n 2d ed. 1982) ); see Adams , 261 P.3d at 767-770, 774-75.

      Alaska R. Prof. Conduct 3.4(e) (excluding times when the lawyer is a witness).

      Alaska R. Prof. Conduct 3.8 cmt. 1.

      ABA Standards for Criminal Justice: Prosecution & Defense Function § 3-6.8(c) ( Am. Bar Ass'n 4th ed. 2015).

      See Adams v. State , 261 P.3d 758, 773 (Alaska 2011).

      Id. at 774.

      See Bruno v. Rushen , 721 F.2d 1193, 1195 (9th Cir. 1983) (discussing how prosecutorial attacks on defense counsel affect due process rights).

      Adams , 261 P.3d at 773.

      Id. at 774.

      Id. at 774-75 (quoting Van Hatten v. State , 666 P.2d 1047, 1056 (Alaska App. 1983), abrogated by Adams , 261 P.3d at 773 ). We have noted that statements during closing arguments are more likely to be prejudicial because of concerns about the effectiveness of objections made during final arguments. Id. "The prejudicial comment is before the jury before the objection can be made, and the curative effect of an admonition of the court to disregard the comment is of debatable value." Id. at 775 (quoting Dorman v. State , 622 P.2d 448, 458 (Alaska 1981) ).

      Goldsbury v. State , 342 P.3d 834, 838 (Alaska 2015).

      Adams , 261 P.3d at 774-75.

      See id. at 774.

      Id. Because the prosecutor's statements accusing Hess's defense attorney of vilifying the victim meet our test for plain error we do not reach his argument that the improper prosecutorial remarks affected his constitutional rights.


text:
    Jonathan FOX, Appellant, v. Gary GRACE and Shannon Grace, Appellees.
    Supreme Court No. S-16996
    Supreme Court of Alaska.
    December 28, 2018
    Jonathan Fox, pro se, Yakutat.
    Herbert M. Pearce, Law Offices of Herbert M. Pearce, Anchorage, for Appellees.
    Before: Winfree, Stowers, Maassen, and Carney, Justices. [Bolger, Chief Justice, not participating.]
   CARNEY, Justice.

I. INTRODUCTION

The superior court denied a father's motion to modify custody because it did not believe it had subject matter jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) to modify an Oregon custody order. The father appeals, arguing that the superior court erred in failing to consider the controlling statute that governs the court's jurisdiction to modify an out-of-state order.

We agree. The controlling statute, AS 25.30.320, allows the superior court to modify an out-of-state custody order if it "determines that neither the child, nor a parent, nor a person acting as a parent presently resides in the other state." It does not appear from the record that the superior court considered this subsection of the statute. We therefore vacate the superior court's order denying the motion to modify for lack of jurisdiction.

The father also appeals an order imposing sanctions, including costs and attorney's fees. Because that order is premised on the court's jurisdictional ruling, we also vacate the sanctions order.

II. FACTS AND PROCEEDINGS

In October 2017 Jonathan Fox registered in the superior court an original custody order and two supplemental judgments that modified the original custody order, all entered by an Oregon state court. These judgments established visitation for Fox's parents, Gary and Shannon Grace, with Fox's two children.

In early January 2018 the Oregon court held a hearing to address motions filed by the Graces to modify custody and to hold Fox in contempt for missed visitation days over winter break. The Oregon court denied the motion to modify but added spring break visitation to make up for missed days. Fox then filed an expedited motion in the Alaska superior court to modify the visitation established in the Oregon custody orders. He argued that the Graces were no longer able to provide adequate care for the children and requested that the court "discontinue compulsory grandparent visitation."

On January 30 the superior court entered an order stating it "[did] not have jurisdiction to modify the current custody order issued by the Oregon Court." Shortly thereafter the court entered an expanded order explaining that it read the Oregon orders to "establish that the Oregon Court exercised initial jurisdiction over [the children]," and that "[t]he most recent order ... demonstrates that the Oregon Court retained continuing and exclusive jurisdiction ...." The court explained it could enforce an out-of-state order registered with the court, but AS 25.30.320 did not permit it to supersede or modify an out-of-state order unless the issuing state had released jurisdiction.

A few days later the Graces filed a motion requesting sanctions pursuant to Alaska Civil Rule 11(b). The Graces argued to the superior court that because a recent custody and visitation order from the Oregon court "specifically addressed the issue of jurisdiction and required the parties to submit to mediation prior to the filing of any new motion,"

Fox and his counsel should be sanctioned for failing to advise the superior court of that order in their pleadings. The Graces attached a copy of a January 2018 order entered by the Oregon court, which stated that "jurisdictional arguments made by Respondent [Fox] are denied." The Graces argued that Rule 11 sanctions were appropriate because Fox and his counsel were aware of this order but did not notify the superior court of the order.

On February 5 Fox filed a motion for reconsideration of the court's order denying his motion to modify for lack of jurisdiction. Fox argued that the requirements of AS 25.30.320 were satisfied, authorizing the court to modify the Oregon order. Fox stated that the superior court had jurisdiction to make an initial custody determination as required by the first part of AS 25.30.320. He then argued that neither of the children, neither parent, nor any person acting as a parent as defined by statute resided in Oregon, and, as a result, the court could exercise jurisdiction pursuant to AS 25.30.320(2). Fox attested in an affidavit that he and his two children had resided in Alaska since December 2016. The superior court denied Fox's motion for reconsideration the day after he filed it.

Fox also opposed the Graces' motion for Rule 11 sanctions. He argued that he had advised the superior court of the January 2 hearing and associated rulings in his memorandum in support of the motion. The Graces' reply emphasized that Fox had not disputed "the fact that the Oregon Order demonstrated that the Oregon Court had already addressed ... [Fox]'s arguments regarding jurisdiction and denied them." (Emphasis omitted.) The Graces asserted "there was no good faith argument to be made by ... [Fox] that Alaska had jurisdiction to modify the Oregon Order." They also stated that they "[had been] determined to have established a 'child-parent' relationship under Oregon Law."

In mid-February the superior court entered an order sanctioning Fox's attorney $500; the order stated that Fox's motion "failed entirely to address jurisdiction. The motion was not filed in good faith as the purpose of the motion was to entirely circumvent the Oregon Court's order."

Fox appeals the superior court's order denying his motion to modify for lack of jurisdiction and the order imposing Rule 11 sanctions. He also asserts that the court's orders infringe on his and his children's constitutional rights. Fox represents himself on appeal.

III. STANDARD OF REVIEW

"Whether a court can exercise jurisdiction under the UCCJEA is a question of law, which we review de novo." "We review the award of sanctions under Rule 11 for abuse of discretion ...."

IV. DISCUSSION

A. It Was Error For The Superior Court Not To Consider Whether It Had Subject Matter Jurisdiction Under AS 25.30.320(2).

Alaska Statute 25.30.320 provides:

Except as otherwise provided in AS 25.30.330, a court of this state may not modify a child custody determination made by a court of another state unless a court of this state has jurisdiction to make an initial determination under AS 25.30.300(a)(1), (2), or (3) and
(1) the court of the other state determines it no longer has exclusive, continuing jurisdiction under provisions substantially similar to AS 25.30.310 or that a court of this state would be a more convenient forum under provisions substantially similar to AS 25.30.360 ; or
(2) a court of this state or a court of the other state determines that neither the child, nor a parent, nor a person acting as a parent presently resides in the other state.

(Emphasis added.) The subsections of the statute provide alternative bases for jurisdiction, allowing the superior court to exercise jurisdiction if either basis is satisfied. If the court determines that one basis does not exist, it must still determine whether the other one does.

The Alaska court must first determine whether it would have jurisdiction to make an initial custody determination. The parties agree that this requirement is met. There is no evidence that the Oregon court determined it no longer has exclusive, continuing jurisdiction pursuant to subsection (1); in fact the January 2018 order indicates that the Oregon court believed it retained exclusive, continuing jurisdiction. But Fox's motion was based upon subsection (2): he argued that the court was presented with evidence that neither the children, the children's parents, nor persons acting as parents presently reside in Oregon. The Graces argue that the Oregon court "elected to maintain continuing and exclusive jurisdiction regarding issues pertaining to custody and visitation" because it found that a "child-parent relationship" existed between the Graces and the children. But Fox correctly points out that this does not establish that the Graces were persons acting as parents under Alaska law.

The superior court does not appear to have considered either Fox's assertion that "no child, parent, or person acting as a parent lives in Oregon" or his argument that a "child-parent relationship" under Oregon law is distinct from "person acting as a parent" status under Alaska law. We therefore vacate the court's order denying Fox's motion and remand the matter for further consideration.

B. We Vacate The Rule 11 Sanctions Order Because It Was Premised On The Superior Court's Incomplete Jurisdictional Analysis.

The superior court sanctioned Fox and his attorney after concluding the motion to modify had been filed in bad faith in order to circumvent the Oregon court's order. The superior court's conclusion was premised upon its incomplete consideration of Fox's jurisdictional arguments under AS 25.30.320(2). Because of this mistaken premise the sanctions order constitutes an abuse of discretion and must be vacated.

V. CONCLUSION

We VACATE the superior court's orders declining to exercise jurisdiction over the motion for modification and imposing Rule 11 sanctions and REMAND for further proceedings consistent with this opinion.

      Alaska has adopted and codified the UCCJEA in AS 25.30.300 -.910.

      Alaska Statute 25.30.320 permits Alaska courts to modify out-of-state custody orders only if two requirements are met: first, an Alaska court must have jurisdiction to enter an initial custody determination; and second, either the other state's court must determine it no longer has continuing and exclusive jurisdiction or that Alaska would be a more convenient forum, or an Alaska court must "determine that neither the child, nor a parent, nor a person acting as a parent" resides in the other state.

      Alaska Civil Rule 11(b) states:
      By presenting to the court a pleading, written motion, or other paper - whether by signing, filing, submitting, or later advocating it - an attorney or unrepresented party certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances: (1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; (2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.

      See AS 25.30.320 (requiring an Alaska court to have jurisdiction to make an initial custody determination under AS 25.30.300(a)(1), (2), or (3) before it can modify another state's custody order).

      Because the superior court's orders did not implicate constitutional questions, and because we remand the case for consideration of potential jurisdiction under AS 25.30.320(2), we do not consider Fox's constitutional claims.

      Steven v. Nicole , 308 P.3d 875, 879 (Alaska 2013).

      Kollander v. Kollander , 400 P.3d 91, 95 (Alaska 2017) (quoting Alaska State Emps. Ass'n v. Alaska Pub. Emps. Ass'n , 813 P.2d 669, 671 (Alaska 1991) ).

      See Robertson v. Riplett , 194 P.3d 382, 385-86 (Alaska 2008) (explaining that jurisdiction exists if either of the two sets of conditions established by AS 25.30.320 are met).

      AS 25.30.320. See also AS 25.30.300(a)(1)-(3) (providing bases for an Alaska court to exercise jurisdiction to make an initial custody determination).

      AS 25.30.909(13) defines the term "person acting as a parent" as: a person, other than a parent, who
      (A) has physical custody of a child or has had physical custody for a period of six consecutive months, including temporary absence, within one year immediately before the commencement of a child custody proceeding; and
      (B) has been awarded legal custody by a court or claims a right to legal custody under the law of this state ....

      See AS 25.30.320(2).

      See Or. Rev. Stat. Ann. § 109.119(1) (West 2018) ("Except as otherwise provided ..., any person ... who has established emotional ties creating a child-parent relationship ... with a child may petition or file a motion for intervention with the court having jurisdiction over the custody, placement or guardianship of that child ....").

      Compare Or. Rev. Stat. Ann. § 109.119(10)(a) (defining "child-parent relationship"), with AS 25.30.909(13) (defining "person acting as a parent"). The Oregon court's finding is not jurisdictional; it is rather a basis for a third-party's right to intervene in a child custody matter. Or. Rev. Stat. Ann. § 109.119(1) (West 2018). As the superior court's order did not address whether the Graces are persons acting as parents under AS 25.30.320(2), we do not reach the merits of that question here.

      Because the court denied Fox's motion without providing the parties the opportunity to brief this jurisdictional issue and before an adequate factual record was developed, we express no opinion on the merits of whether the court has subject matter jurisdiction pursuant to AS 25.30.320(2).

      See Kollander v. Kollander , 400 P.3d 91, 95 (Alaska 2017). We also take this opportunity to remind courts that they must follow the mandates of Alaska Civil Rule 95 before issuing a sanctions order pursuant to Rule 11, including issuing an order to show cause and providing for the opportunity to be heard at a hearing. See Luedtke v. Nabors Alaska Drilling, Inc. , 834 P.2d 1220, 1227-28 (Alaska 1992) (holding the superior court erred in imposing Rule 11 sanctions of costs and attorney's fees both because the superior court had not clearly stated its reasons for imposing the sanction and because "Luedtke should have been given the opportunity to contest the sanction award at a hearing"); Esch v. Superior Court of Third Judicial Dist. , 577 P.2d 1039, 1042-43 (Alaska 1978) (holding the superior court had erred in imposing a fine under an earlier version of Rule 95 because it had "failed to give specific notice of its intention to impose a sanction" as required by the rule).