author: MAASSEN, Justice.

text:
    Bryce WARNKE-GREEN, Petitioner, v. PRO-WEST CONTRACTORS, LLC and Liberty Northwest Insurance Company, Respondents.
    Supreme Court No. S-16821
    Supreme Court of Alaska.
    April 26, 2019
    Eric Croft, The Croft Law Office, LLC, Anchorage, for Petitioner.
    Constance E. Livsey, Barlow Anderson, LLC, Anchorage, for Respondents.
    Before: Bolger, Chief Justice, Winfree, Stowers, Maassen, and Carney, Justices.
   MAASSEN, Justice.

I. INTRODUCTION

The Alaska Workers' Compensation Board denied a worker's request that his employer pay for a van modified to accommodate his work-related disability. On appeal, the Alaska Workers' Compensation Appeals Commission decided that a modifiable van was a compensable medical benefit. The worker moved for attorney's fees. The Commission reduced the attorney's hourly rate, deducted a few time entries, and awarded him less than half of what was requested. The worker asked the Commission to reconsider its award, but it declined to do so because of its view that the Alaska Workers' Compensation Act (the Act) allows it to reconsider only the final decision on the merits of an appeal.

We granted the worker's petition for review. We hold that the Commission has the necessarily incidental authority to reconsider its non-final decisions. We also reverse the Commission's award of attorney's fees and remand for an award that is fully compensable and reasonable.

II. FACTS AND PROCEEDINGS

Bryce Warnke-Green was rendered tetraplegic by a work-related accident in 2014 in Nome, his hometown. He was treated in Seattle at Harborview Medical Center and remained in that area while continuing to receive medical care.

To get to his medical appointments, Warnke-Green used a cabulance - which he described as a taxicab for wheelchair users - or, when medically necessary, an ambulance. He testified that the cabulance was not entirely reliable, which caused him to miss some appointments. In late 2015 Warnke-Green's father asked the employer, Pro-West Contractors, LLC, to provide Warnke-Green with a modified van. Pro-West had earlier disputed that Warnke-Green's choice of a long-term transportation option would "be compensable under [his] claim," but the parties discussed settling the van issue. Pro-West sent a draft settlement agreement to Warnke-Green providing for Pro-West's "one time only purchase" of a modified van in exchange for his waiver of "all further entitlement to ... transportation reimbursement" other than for medical emergencies.

Warnke-Green did not sign the agreement; instead, he obtained an attorney and filed a workers' compensation claim for a "new modified van." Pro-West answered the claim, "d[id] not admit any portion" of it, and raised as an affirmative defense that Warnke-Green had agreed to a settlement but refused to sign it. Warnke-Green later sent a revised settlement agreement to Pro-West that preserved his future entitlement to transportation reimbursements, but Pro-West did not agree to it.

The Board held a hearing on the "modified van" claim in April 2016. The competing draft settlement agreements were included in the record without objection, though both parties acknowledged that their inclusion was "odd" and "rather unusual."

In his prehearing memorandum, Warnke-Green cited cases from other states holding that modifying an existing vehicle or acquiring a van with modifications was compensable as a medical benefit. At the hearing he asked for a modified van - his attorney said that "[i]t [did]n't have to be a new one" - with an offset of $ 500 to $ 1,000 representing the value of an old Chevrolet Suburban he had in Nome.

Pro-West, in its prehearing memorandum, identified the "majority view" based on out-of-state cases: "that the employer/insurer generally must pay for the special equipment required to outfit a vehicle" but not "the purchase price of the vehicle itself." According to Pro-West, other states had adopted "the 'Crouch rule' or 'Crouch formula,' " under which the employer is responsible for "the cost of any special equipment or adaptations to a vehicle or van, plus the cost difference between that vehicle and an ordinary non-adapted vehicle such as the type the employee would otherwise have owned." (Emphasis omitted.) Pro-West contended that the Board had already adopted the Crouch rule and had applied it "consistently since 1981." Pro-West also discussed cases from three jurisdictions that rejected similar claims entirely, based on their statutes. At the hearing Pro-West argued that if it was required to provide a van, it should owe only the difference in price between "a standard American car or pickup and a van that's modified," explicitly denying that the offset should be only the value of Warnke-Green's old Suburban.

The Board denied Warnke-Green's claim in its entirety. The Board decided that under the Act a modified van was not a medical benefit - specifically that it was neither an "apparatus" nor a "prosthetic device." The Board also decided in the alternative that if a van was a medical benefit, the facts of the case did not require the employer to purchase one because Warnke-Green needed a car for personal, not medical, reasons. The Board decided that Warnke-Green was not entitled to a modified van as a transportation benefit either. It dismissed the precedential value of earlier decisions requiring employers to purchase modified vans for employees with similar catastrophic injuries, reasoning that those cases lacked "any legal authority or factual findings to support their results." It declined to follow the Crouch rule - by which the employer pays for modifications plus the difference in cost between the modifiable vehicle and an ordinary, unadapted vehicle - because the cases that adopted the rule "were based on the premise an automobile was a compensable apparatus or device under the applicable state's workers' compensation statute."

Warnke-Green appealed to the Commission. The Commission, while agreeing with the Board that a modified van was not a "prosthetic device," decided that it was an "apparatus" included within the Act's definition of "medical benefits." It therefore held Pro-West responsible for "any increased cost associated with the purchase of a modifiable motor vehicle and any necessary modifications which will enable Mr. Warnke-Green to use the motor vehicle." The Commission anticipated an offset, noting its belief that the parties had agreed that Warnke-Green would contribute the value of his "inoperable Suburban van." The Commission remanded the case to the Board for further proceedings consistent with its decision.

Warnke-Green then moved for over $ 30,000 in attorney's fees as the successful party in the Commission appeal, including with his motion an itemized affidavit. The requested hourly rates for attorneys were $ 400 an hour for Eric Croft and $ 300 an hour for Selena Hopkins-Kendall; the rate for paralegal time was $ 170 an hour.

Pro-West did not question the requested hourly rates or any individual time entries. It did oppose the motion, however, on grounds that Warnke-Green was not "a successful party" because "[h]e did not prevail on his November 27, 201[5] claim seeking 'a new modified van.' " Pro-West argued that it was the successful party in the Commission appeal; it quoted part of the Commission's decision to the effect that Pro-West had only "asked him to contribute the value of his Suburban which Mr. Warnke-Green estimates to be between $ 500 and $ 1,000." Pro-West further contended that the Commission's decision validated the position Pro-West had held consistently both before and after Warnke-Green filed his claim. It maintained that Warnke-Green "gained nothing from the entirety of this litigation."

The Commission, in considering the attorney's fees motion, first reduced the total requested. It decided without explanation that $ 350 an hour was "a reasonable hourly rate for an attorney practicing in the area of workers' compensation with [Croft's] experience and expertise" and reduced his hourly rate accordingly. It deducted 2.4 hours from Croft's total hours: a tenth of an hour for what the Commission thought was a duplicate billing for an email and 2.3 hours for paralegal supervision, which according to the Commission should have been included in overhead.

The Commission then considered whether Warnke-Green "actually prevailed on a significant issue on appeal." The Commission agreed with Pro-West that Warnke-Green, having been awarded a modified van minus the value of his Suburban, "obtained only what had been offered prior to the filing of his claim," which the Commission said was "considerably less than what Mr. Warnke-Green sought." The Commission cut in half the "adjusted fees" and awarded attorney's fees of $ 13,956.00.

Warnke-Green asked the Commission to reconsider its decision, arguing that (1) Pro-West's litigation position was not what the Commission seemed to think it was; (2) the Commission's decision gave Warnke-Green more than Pro-West had offered in settlement; and (3) the fee reductions were not justified. The Commission denied reconsideration, however, reasoning that it was allowed to "only reconsider a final decision on the merits of an appeal." (Emphasis in original.)

Warnke-Green filed a petition for review, which we granted as to these three issues:

(1) Does the Commission have authority to reconsider orders that are not final decisions? If so, what is the source of the authority and what limits, if any, are there on this authority?
(2) Did the Commission err in considering the parties' underlying litigation before the Board, including any settlement offers, in determining the amount of attorney's fees to be awarded for the appeal before the Commission?
(3) Did the Commission abuse its discretion by awarding the employee less than his full reasonable attorney's fees after he prevailed in his appeal before the Commission?

III. STANDARDS OF REVIEW

Whether the Commission has the authority to reconsider orders other than final decisions on the merits is a question of law to which we apply our independent judgment. We interpret a statute "according to reason, practicality, and common sense, considering the meaning of the statute's language, its legislative history, and its purpose."

We use our independent judgment to interpret the attorney's fees provisions of the Workers' Compensation Act. While we may consider an agency's interpretation of a statute "within [the agency's] area of jurisdiction[,] ... particularly when the agency's interpretation is longstanding," there is no indication that the Commission, in its award of attorney's fees in this case, was applying a longstanding interpretation of the statute.

We review the amount of fees awarded for abuse of discretion. To the extent the Commission's decision is based on findings of fact, we consider whether the findings are "supported by substantial evidence in light of the whole record." "Substantial evidence is 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' "

IV. DISCUSSION

A. The Commission's Authority To Reconsider Its Decisions Is Not Limited To Its Final Decisions On The Merits.

The Commission's refusal to reconsider its attorney's fees order was evidently based on its belief that it lacks authority to do so under the Act. After quoting AS 23.30.128(e), which describes decisions on appeal, the Commission set out the text of AS 23.30.128(f), which describes the process of reconsideration, and cited its regulation on the same subject. The Commission emphasized subsection (f)'s references to subsection (e):

A party or the director may request reconsideration of a decision issued under (e) of this section within 30 days after the date of service shown in the certificate of service of the decision .... The power to order reconsideration expires 60 days after the date of service, as shown on the certificate of service, of a decision issued under (e) of this section ....[ ]

Noting that the statute and regulation addressed only "a final decision on the merits of an appeal," the Commission concluded that there was "no provision in either the Alaska Statutes or the Commission's regulations for reconsideration of the Commission's rulings on motions." It held that "Mr. Warnke-Green's motion for reconsideration cannot be considered on this basis."

The Commission is correct that the language of AS 23.30.128(f), while addressing reconsideration in detail, is silent about reconsideration of any decisions other than the final decisions on appeal described in subsection (e). Nor is reconsideration of interim orders meaningfully discussed in the Act's description of the Commission's powers and duties or in its outline of the procedure to be used in Commission appeals.

According to Pro-West, this statutory silence is evidence that the legislature decided against allowing the Commission a general authority to reconsider its decisions. We recognized in Greater Anchorage Area Borough v. City of Anchorage that administrative agencies have "no inherent powers, but only such as have been expressly granted to [them] by the legislature or have, by implication, been conferred upon [them] as necessarily incident to the exercise of those powers expressly granted." More recently, in Monzulla v. Voorhees Concrete Cutting , we interpreted the Act as giving the Commission implied authority over interlocutory review, setting out factors other courts have considered when evaluating whether an administrative agency "properly exercised an implied power." Monzulla requires us to consider whether Commission authority to reconsider decisions other than final decisions is "necessarily incident to the exercise of those powers expressly granted" to the Commission.

Alaska Statute 23.30.128 sets out "Commission proceedings." Subsection (d) grants the Commission the authority to "affirm, reverse, or modify a decision or order upon review and issue other orders as appropriate ." (Emphasis added.) We conclude that an adjudicative body's authority to "issue other orders as appropriate" is broad enough to include a general authority to reconsider decisions other than final decisions. Other state courts have recognized that administrative agencies with adjudicative powers necessarily have authority to reconsider their decisions because reconsideration is a necessary part of adjudication. Indeed, the issue courts face more frequently is whether an agency has the authority to reconsider its final decisions in the absence of explicit statutory authority. Alaska Statute 23.30.128(f) gives us unmistakable direction on that issue. And we conclude that construing the Act as allowing reconsideration of final decisions but not others would be inconsistent with the overall purposes of the Act and the 2005 amendments that created the Commission.

We recognized in Monzulla that "[t]he goal of the statutory amendment that established the Commission was 'to increase the efficiency and flexibility of the current system ... and reduce some of its costs.' " And we agreed "that the legislature wanted those seeking review of Board decisions to have the same procedural rights of review that they had in the superior court." As a general matter, the legislature has directed that the Act be construed "to ensure the quick, efficient, fair, and predictable delivery of indemnity and medical benefits to injured workers at a reasonable cost to ... employers."

Consistent with these purposes, we interpret the Act as allowing the Commission to reconsider its non-final orders. In the context of the doctrine requiring exhaustion of administrative remedies, we have consistently emphasized the benefit to "both administrative autonomy and judicial economy" when an administrative body is allowed the opportunity "to correct its errors and a complainant [is allowed the opportunity] to obtain relief without judicial intervention." Pro-West suggests that an appeal is a sufficient substitute for reconsideration, but we disagree. An appeal can be time-consuming and costly and sometimes involve significant delay, especially when any chance for appellate review of a non-final order must await the case's final disposition. An error corrected on reconsideration reflects the administrative agency's best-informed judgment and is one less reason for a judicial appeal, with the time and cost that invariably entails.

We further note that because Commission regulations governing motions do not permit replies to oppositions, reconsideration may be the only opportunity a party has short of an appeal to point out errors in the opposition. In this case Warnke-Green attempted in his reconsideration motion to counter some assertions Pro-West made in its opposition; he also provided evidence to the Commission related to issues the Commission raised on its own - for example, showing that the Commission was mistaken in its finding that his attorney had billed twice for a single email.

At oral argument before us, Pro-West agreed that the Commission could reconsider non-final orders when it had made an obvious mistake - for example by deciding a motion without considering a timely filed opposition - but did not articulate a clear standard for identifying an obvious mistake. Like Pro-West, we are aware of no principled way to identify those mistakes that are sufficiently obvious to permit reconsideration. We do not suggest that the Commission must entertain any and all motions for reconsideration; we agree with Warnke-Green that "the proper course is to clarify that the right exists and allow the [Commission] to adopt regulations clarifying the scope and limits of the right." We therefore hold that AS 23.30.128(f) does not prohibit the Commission from reconsidering orders other than the final decisions described in AS 23.30.128(e) because the authority to reconsider is necessarily incident to the Commission's express authority to "issue other orders as appropriate."

B. The Commission Erred By Considering The Parties' Underlying Litigation Before The Board, Including Their Settlement Offers, When Determining Attorney's Fees For The Commission Appeal.

Because the Commission thought the amount of fees Warnke-Green requested was excessive, it reduced Croft's hourly rate and disallowed some time entries to arrive at a base fee amount. It then considered the "more difficult" question of whether Warnke-Green "actually prevailed on a significant issue on appeal." The Commission observed that Warnke-Green's claim before the Board "asked specifically for a 'new modified van' " and that Pro-West "denied the 'new modified van' and as an affirmative defense stated the employer was not required to pay the full cost of the modified van as [the] employee had owned a vehicle at the time of injury." The Commission noted that it "affirmed the Board's decision that a modifiable van was not a prosthetic device" but otherwise disagreed with the Board, concluding that the van was "an apparatus ... and thus a compensable medical benefit." The Commission then decided, however, that Warnke-Green "obtained only what had been offered prior to the filing of his claim," and the only real benefit achieved by the appeal was clarification "that an injured worker needs to contribute the value of the vehicle owned at the time of injury towards the purchase of the modified van." The Commission wrote "that this clarification might be considered to be a significant issue, although it is considerably less than what Mr. Warnke-Green sought." It concluded that it was "appropriate to award as a full compensatory and reasonable fee the amount of $ 13,956.00, or one-half of the adjusted fees."

We held in Lewis-Walunga v. Municipality of Anchorage that a successful party in a Commission appeal under AS 23.30.008(d) is the same as a "successful claimant" under former Alaska Appellate Rule 508(g)(2), which served as a model for AS 23.30.008(d). A successful party is one who prevailed "on a significant issue on appeal ." Interpreting AS 23.30.008(d), we observed that its language "signal[s] that the Commission's fee award is independent of success in the underlying claim" and "does not tie a fee award to success on a claim - it instructs the Commission to award fees in the appeal." We later reiterated that success on appeal is not tied to success on the claim itself and that a claimant need not prevail on all issues to be a successful party on appeal.

Because success on appeal is not tied to success on the claim itself, neither the relief Warnke-Green requested in his initial worker's compensation claim nor Pro-West's settlement offer is legally relevant to whether he was a successful party on appeal. To determine success on appeal, the Commission needs to consider what the Board ordered, what the parties sought in the appeal, and what the appeal decided.

The Board decided that a modified van was not a transportation benefit or a medical benefit (being neither an "apparatus" nor a "prosthetic device") and denied Warnke-Green's claim in its entirety. On appeal, Warnke-Green asked the Commission "to conclude legally that a modified van is an allowable medical or related transportation benefit under the Act" and to "order the insurance company to either pay the full price of the modified van or deduct only the value of the actual vehicle [he] owned." The Commission did just as Warnke-Green requested: It decided that "any increased costs associated with the purchase of a modifiable motor vehicle and any necessary modifications which will enable Mr. Warnke-Green to use the motor vehicle are encompassed in the language 'apparatus' and, thus, are compensable medical benefits under the Act." The Commission found that the parties had agreed to the amount of any offset based on the value of Warnke-Green's old Suburban.

On this record, we see no basis for questioning Warnke-Green's success in the appeal; the Commission awarded what he asked for. The Commission's conclusion that Warnke-Green obtained "considerably less than what [he] sought" is erroneous.

Even if the parties' positions before the Board were relevant to success on appeal, the Commission's findings here are not supported by the record. We have found no evidence to support the Commission's conclusion in its substantive decision that "Pro West has stated it is willing to provide Mr. Warnke-Green with a modified van, but has only asked that he contribute something to the purchase," that being "the value of his Suburban," which Warnke-Green refused to do. In fact Pro-West specifically denied that this was its position when asked by the Board chair. Rather, Pro-West's main argument was that the Board should apply the Crouch rule - "which awards an employee the cost of any special equipment or adaptations to a vehicle or van, plus the cost difference between that vehicle and an ordinary non-adapted vehicle such as the type the employee would otherwise have owned" (emphasis omitted) - and it advanced the alternative argument that Warnke-Green's claim be denied in its entirety. We also agree with Warnke-Green that what he obtained through litigation was more than Pro-West's proposed settlement, which required him to forgo any future non-emergency medical transportation costs; these could be considerable given his age and medical status. The Commission's decisions thus both misstated Pro-West's litigation position and mischaracterized Pro-West's settlement offer.

In light of the statutory mandate that the successful party in an appeal is entitled to "fully compensable and reasonable" attorney's fees, the Commission's decision to award Warnke-Green only half his fees was legal error.

C. The Commission Clearly Erred By Reducing The Attorney's Hourly Rate, Abused Its Discretion By Disallowing One Time Entry, But Did Not Abuse Its Discretion By Disallowing Others.

Warnke-Green appeals both the Commission's reduction of Croft's hourly rate from $ 400 to $ 350 and its disallowance of 2.4 hours of Croft's time. We conclude that the Commission clearly erred by reducing the rate without an evidentiary basis for doing so and that its disallowance of one time entry was an abuse of discretion.

A successful party represented by counsel before the Commission is entitled to attorney's fees "that the [C]ommission determines to be fully compensatory and reasonable." Neither AS 23.30.008(d) nor 8 AAC 57.250, the Commission's regulation on attorney's fees, expands on the meaning of the phrase "fully compensatory and reasonable." The Commission has published few of its attorney's fees decisions, and the parties have not cited any that are directly relevant to this question. Pro-West did not dispute that the fees Warnke-Green requested were reasonable as to the hourly rate and the number of hours expended; Pro-West confined its opposition to an argument that it, not Warnke-Green, was the successful party in the appeal.

We review the amount of attorney's fees awarded for an abuse of discretion. This standard of review is consistent with both the statutory language and the standard we apply when reviewing attorney's fees awarded by the Board. But here the Commission also made factual findings. With respect to the hourly rate, the Commission wrote that it "f[ound] an hourly rate of $ 350.00 per hour to be a reasonable hourly rate for an attorney practicing in the area of workers' compensation with the experience and expertise exemplified by attorney Eric Croft." No evidence in the record supports the Commission's finding, and the Commission did not explain it. The only evidence of reasonable hourly rates in the record was the affidavit in support of Croft's request for attorney's fees. This evidence was unchallenged and is not obviously unreasonable; we note that we and the Board have both awarded Croft fees at this rate in other workers' compensation cases. In short, because the Commission's decision to reduce Croft's hourly rate is unsupported by the record, it is arbitrary and an abuse of discretion.

Turning to the 2.4 hours of disallowed time, we begin by observing that Pro-West did not challenge the number of hours or the reasonableness of the identified tasks. The Commission nonetheless speculated that two entries for emails on the same day must be duplicative and therefore disallowed one of them. Again, there is no evidence to support the Commission's speculation, and Warnke-Green submitted copies of two emails when he asked the Commission to reconsider its attorney's fees award. The Commission was clearly mistaken in assuming a duplicative charge.

The Commission further reduced Croft's hours for "supervisory activities" related to paralegals, writing that such activities "are encompassed within the billing rate which covers office overhead." The relevant time entries are vague and do not clearly indicate that the attorney was adding value to the work as opposed to training his staff - which is equally necessary to the practice of law but not ordinarily chargeable to the client (or, in cases like this, to the employer). Warnke-Green does not explain the entries further in his brief on appeal other than to emphasize the importance of attorneys' ethical duty to carefully supervise their paralegals' work. Given the broad discretion we ordinarily give to courts' determinations of such issues, we cannot conclude that it was an abuse of discretion for the Commission to exclude these entries for paralegal supervision.

With the exception of these entries, however, we conclude that the Commission's decision here is contrary to the policy underlying former Appellate Rule 508(g) and by extension AS 23.30.008(d). The purpose of awarding full reasonable attorney's fees in workers' compensation cases is to ensure that competent counsel are available to represent injured workers. The Commission abused its discretion when it lowered Croft's hourly rate and disallowed one of his time entries without an evidentiary basis for doing so.

V. CONCLUSION

We REVERSE the Commission's determination that it lacks the authority to reconsider decisions other than its final decisions in an appeal. We REVERSE the Commission's attorney's fees award and remand to the Commission for an award of fully compensable and reasonable fees consistent with this opinion.

      Under AS 23.30.012(b), a workers' compensation settlement agreement between an unrepresented claimant and an employer must be reviewed and approved by the Board to be enforceable.

      The Act requires employers to "furnish medical, surgical, and other attendance or treatment, nurse and hospital service, medicine, crutches, and apparatus for the period which the nature of the injury or the process of recovery requires ...." AS 23.30.095(a). "[M]edical and related benefits" include but are "not limited to physicians' fees, nurses' charges, hospital services, hospital supplies, medicine and prosthetic devices," and "prosthetic devices" include but are not limited to "eye glasses, hearing aids, dentures, and such other devices and appliances ...." AS 23.30.395(26), (33).

      Alaska Statute 23.30.008(d) provides that the Commission "shall award a successful party reasonable costs" and attorney's fees.

      The Commission made two additional deductions not at issue in this appeal.

      See Monzulla v. Voorhees Concrete Cutting , 254 P.3d 341, 343-44 (Alaska 2011) (using independent judgment when considering whether Commission had authority over interlocutory review of Board orders).
      To the extent Pro-West is arguing that we should defer to the Commission because it is interpreting its own regulation regarding reconsideration, we reject that argument. The regulation has no substantive content and merely outlines the process for requesting reconsideration of final decisions. 8 Alaska Administrative Code (AAC) 57.230(a) (2011).

      Louie v. BP Expl. (Alaska), Inc. , 327 P.3d 204, 206 (Alaska 2014) (citing Grimm v. Wagoner , 77 P.3d 423, 427 (Alaska 2003) ).

      See, e.g. , Burke v. Raven Elec., Inc. , 420 P.3d 1196, 1202, 1208 (Alaska 2018) (holding that meaning of "injured worker" in AS 23.30.008(d), governing attorney's fees awards on Commission appeals, was question of statutory interpretation reviewed using independent judgment); State, Div. of Workers' Comp. v. Titan Enters., LLC , 338 P.3d 316, 320-21 (Alaska 2014) (using independent judgment to determine whether nonclaimants can be awarded fees in Commission appeals against other nonclaimants); Underwater Constr., Inc. v. Shirley , 884 P.2d 156, 158 (Alaska 1994) (holding that question whether Board had authority to award fees under AS 23.30.145(a)"require[d] statutory interpretation involving no administrative expertise").

      Hendricks-Pearce v. State, Dep't of Corr. , 323 P.3d 30, 35 (Alaska 2014).

      Pro-West cites Dockter v. Southeast Alaska Regional Health Consortium , AWCAC Dec. No. 246 (Mar. 29, 2018), and Rusch v. Southeast Alaska Regional Health Consortium , AWCAC Dec. No. 245 (Mar. 29, 2018), in support of an argument that we should defer to the Commission's interpretation of attorney's fees statutes. Both cases are about Board awards of attorney's fees under AS 23.30.145, not fees for Commission appeals under AS 23.30.008(d). Commission decisions do not show that the Commission generally considers the positions taken before the Board when awarding fees on appeal, as it did here. See Municipality of Anchorage v. Syren , AWCAC Dec. No. 015 at 2-3 (Aug. 3, 2006) (considering parties' positions and success before the Commission in awarding fees); Doyon Drilling Inc. v. Whitaker , AWCAC Dec. No. 008 at 2 (Apr. 14, 2006) (same).

      See Williams v. Abood , 53 P.3d 134, 139 (Alaska 2002) (citing Bouse v. Fireman's Fund Ins. Co. , 932 P.2d 222, 241 (Alaska 1997) ) (applying abuse of discretion standard to amount of fees under Board award); cf. Shehata v. Salvation Army , 225 P.3d 1106, 1119 (Alaska 2010) (applying abuse of discretion standard to question of frivolousness).

      Lewis-Walunga v. Municipality of Anchorage , 249 P.3d 1063, 1066 (Alaska 2011) (quoting AS 23.30.129(b) ).

      Burke v. Houston NANA, L.L.C. , 222 P.3d 851, 858 (Alaska 2010) (quoting DeYonge v. NANA/Marriott , 1 P.3d 90, 94 (Alaska 2000) ).

      Alaska Statute 23.30.128(e) sets out the deadline for the Commission to issue a decision in an appeal, a decision's necessary elements, instructions for its service, and direction that "[u]nless reconsideration is ordered under (f) of this section," the decision described in subsection (e) "is the final commission decision."

      8 AAC 57.230(a) ("A party may request reconsideration of a final commission decision by filing a motion, supported by an affidavit or other evidence of the specific grounds for reconsideration, as provided in AS 23.30.128(f).").

      AS 23.30.128(f) (emphasis supplied by Commission).

      AS 23.30.008.

      AS 23.30.128.

      At times Pro-West appears to interpret the Commission's order differently from our reading of it, arguing that the Commission, by regulation, has simply chosen not to exercise its reconsideration authority. The more natural reading of the Commission's order is that it found no authority to reconsider decisions other than those described in AS 23.30.128(e). We see no other explanation for the Commission's addition of emphasis when quoting AS 23.30.128(f) and 8 AAC 57.230(a).

      504 P.2d 1027, 1033 n.19 (Alaska 1972), overruled on other grounds by City & Borough of Juneau v. Thibodeau , 595 P.2d 626 (Alaska 1979).

      254 P.3d 341, 346-47 (Alaska 2011).

      Greater Anchorage Area Borough , 504 P.2d at 1033 n.19.

      See, e.g. , Olmstead v. Dep't of Telecomms. &Cable , 466 Mass. 582, 999 N.E.2d 125, 127 n.5 (2013) (inherent authority); Cty. of Douglas v. Neb. Tax Equalization & Review Comm'n , 296 Neb. 501, 894 N.W.2d 308, 323 (2017) (implied authority); Boydston v. Liberty Nw. Ins. Corp. , 166 Or.App. 336, 999 P.2d 503, 505-06 (2000) (inherent power).

      See E. H. Schopler, Annotation, Power of administrative agency to reopen and reconsider final decision as affected by lack of specific statutory authority , 73 A.L.R.2d 939 (1960).

      254 P.3d at 346 (quoting 2005 Senate Journal 465).

      Id. at 347.

      AS 23.30.001(1).

      Smart v. State, Dep't of Health &Soc. Servs. , 237 P.3d 1010, 1015 (Alaska 2010) ; see also Alyeska Pipeline Serv. Co. v. State, Dep't of Envtl. Conservation , 145 P.3d 561, 566 (Alaska 2006) ("[A]s we have noted, the purpose of an administrative review process is to allow an agency 'to correct its own errors so as to moot judicial controversies.' " (quoting Voigt v. Snowden , 923 P.2d 778, 781 (Alaska 1996) )).

      See Municipality of Anchorage v. Anderson , 37 P.3d 420, 422-23 (Alaska 2001) (Matthews, J., dissenting) (setting out paths for review of attorney's fees decision when superior court remanded case to Board).

      See 8 AAC 57.100 (permitting opposition to stay request, but making no provision for reply); 57.140 (permitting opposition to some motions for extension of time but not providing for replies); 57.210 (allowing opposition to motions, but making no provision for reply); 57.260 (allowing opposition to motion for attorney's fees, but making no provision for reply).

      AS 23.30.128(d).

      249 P.3d 1063, 1067-68 (Alaska 2011).

      Id. at 1068 & n.16 (emphasis added) (summarizing attorney's fees awards under former Appellate Rule 508(g)(2) ).

      Id. at 1068.

      Humphrey v. Lowe's Home Improvement Warehouse, Inc. , 337 P.3d 1174, 1182 (Alaska 2014). We note that earlier Commission decisions interpreted AS 23.30.008 similarly, deciding that success in an appeal was unrelated to success on the underlying claim. See Municipality of Anchorage v. Syren , AWCAC Dec. No. 015 at 1-3 (Aug. 3, 2006) (considering parties' positions and success before the Commission in awarding fees); Doyon Drilling Inc. v. Whitaker , AWCAC Dec. No. 008 at 2 (Apr. 14, 2006) (same). In this case, the Commission did not mention or cite these decisions, which under AS 23.30.008(a) and our interpretation of it are precedential for the Commission. See Alaska Pub. Interest Research Grp. v. State , 167 P.3d 27, 44-45 (Alaska 2007).

      Pro-West advocated denial of the claim as an alternative position before the Board, but this was not its principal position.

      We have been unable to find support for this finding in the record preceding the attorney's fees litigation, but Pro-West conceded the point in its opposition to the attorney's fees motion in the Commission: "As the Commission noted in its Decision, Employer 'Pro-West ... has asked [Warnke-Green] to contribute the value of his Suburban [vehicle] which Mr. Warnke-Green estimates to be between $ 500 and $ 1,000.' "

      Pro-West wrote in its hearing brief: "Importantly for the dispute now before the Board, this [the Crouch rule] is precisely Pro-West's position here."

      AS 23.30.008(d).

      Id.

      We have identified the following decisions on the Commission's website as related to attorney's fees: Titan Enters., LLC v. State, Div. of Workers' Comp. , AWCAC Dec. No. 210 at 8-9 (Feb. 18, 2015) (on remand from this court, awarding $ 38,000 to employer who was partially successful in appeal against Division related to fine for failure to insure); Municipality of Anchorage v. Adamson , AWCAC Dec. No. 203 at 5 (Nov. 12, 2014) (deciding that employee's request for attorney's fees following successful appeal to this court was too late); Rockstad v. Chugach Eareckson , AWCAC Dec. No. 108 at 9 (May 11, 2009) (refusing to award fees to employer); Shehata v. Salvation Army , AWCAC Dec. No. 075 at 7 (Mar. 19, 2008) (awarding fees to employer), rev'd 225 P.3d 1106, 1119 (Alaska 2010) ; Municipality of Anchorage v. Syren , AWCAC Dec. No. 015 at 8 (Aug. 3, 2006) (awarding fees to claimant for interlocutory review); Doyon Drilling, Inc. v. Whitaker , AWCAC Dec. No. 008 at 5 (Apr. 14, 2006) (awarding fees to claimant).

      Cf. Shehata , 225 P.3d at 1119 (applying abuse of discretion standard to question of frivolousness under AS 23.30.008(d) ).

      Williams v. Abood , 53 P.3d 134, 139 (Alaska 2002).

      We review the Commission's factual findings to determine whether they are "supported by substantial evidence in light of the whole record." Lewis-Walunga v. Municipality of Anchorage , 249 P.3d 1063, 1066 (Alaska 2011) (quoting AS 23.30.129(b) ).

      Syren , AWCAC Dec. No. 015 at 8 n.18 (treating reasonable hourly rate as fact issue, Commission writes that employer "submitted no evidence that the hourly fee charged by [claimant's] attorney was 'manifestly unreasonable' " and concludes that "the hourly fee was not challenged" (quoting State, Dep't of Revenue v. Cowgill , 115 P.3d 522, 524 (Alaska 2005) )).

      Adamson v. Municipality of Anchorage , Nos. S-15006/15025 (Alaska Supreme Court Order, Oct. 8, 2014 and underlying motion); Rusch v. S.E.A.R.H.C. , AWCB Dec. No. 16-0131 at 10, 16 (Dec. 21, 2016).

      Under the heading "Supervise Paralegal Activities," the entries include, for example, "James on brief draft schedule"; "review brief draft with James"; "JC on research and writing tasks"; "PJ on post brief issues"; "PJ on oral argument."

      See Hodari v. State, Dep't of Corr. , 407 P.3d 468, 473 (Alaska 2017) (observing that it is within superior court's broad discretion to "refuse to award fees based on 'billings that are too vague to allow a fair determination that they were reasonably incurred or incurred in connection with the ... lawsuit' " (quoting Bobich v. Hughes , 965 P.2d 1196, 1200 (Alaska 1998) )).

      See Lewis-Walunga , 249 P.3d at 1067 (finding legislative intent for attorney's fees in Commission appeals "to follow the same rules as appellate attorney's fees awards in the courts").

      Cowgill , 115 P.3d at 524 ; see also Syren , AWCAC Dec. No. 015 at 2-3 (interpreting AS 23.30.008(d) and recognizing objective of making competent counsel available to injured workers).


source: Caselaw Access Project

author: CARNEY, Justice.

license: Public Domain

text:
    Errol P. DOWNS, Appellant, v. Deborah DOWNS, Appellee.
    Supreme Court No. S-16532
    Supreme Court of Alaska.
    May 3, 2019
    Walter R. Arden, Anchorage, for Appellant.
    Rhonda F. Butterfield, Wyatt & Butterfield, LLC, Anchorage, for Appellee.
    Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and Carney, Justices.
   CARNEY, Justice.

I. INTRODUCTION

A husband appeals the superior court's unequal property division in a divorce proceeding that gave the wife the majority of the marital estate. He argues that the superior court abused its discretion when dividing the property and that the property division was therefore inequitable. Because the property division was neither clearly unjust nor based on clearly erroneous factual findings, we affirm the superior court's decision.

II. FACTS AND PROCEEDINGS

Errol Downs and Deborah Downs were married in 1985. Errol suffered a heart attack in approximately 1988, had heart surgery in 1989, and did not return to work. Errol began collecting Social Security Disability Insurance in 1994. That same year, the parties moved to Alaska following Deborah's retirement from her job with the State of Oregon, eventually buying a house in Petersburg. She then took a job with the State of Alaska. Deborah worked for the State until her retirement in 2009.

The parties separated after Deborah sought a domestic violence protective order against Errol in January 2013. Deborah alleged that she feared for her safety because Errol was behaving strangely and threatening to hurt her. Around the same time that Deborah filed the domestic violence protective order, Errol moved out of the marital home and into a motel room. He lived at the motel until August when he was moved to the Petersburg Medical Center. Doctors diagnosed him with dementia, as well as depression, malnutrition, alcoholism, and other conditions.

Errol filed for divorce in October 2013. Approximately six months later Errol's attorney petitioned the probate court to appoint a guardian for Errol. The petition was granted, and a public guardian was appointed. The following April Errol's leg was amputated above the knee, leaving him unable to walk. As a result of his significant healthcare needs, he moved to an assisted living facility in Anchorage.

In February 2016 Deborah filed a motion to dismiss the divorce complaint on the basis that Errol was not competent to get a divorce. At trial the superior court determined that Errol was competent, denied Deborah's motion to dismiss, and then proceeded to divide the marital estate.

Errol requested approximately 50% of the marital assets. His guardian testified regarding his financial needs and the impact that the property division could have on his eligibility for services, including Medicaid. The guardian testified that he had an irrevocable trust that ensured his continuing eligibility for Medicaid, a separate burial account, a Permanent Fund Dividend account, and a checking account that had a balance of less than $ 2,000 (as required to maintain Medicaid eligibility). At the time of trial Errol resided in a long-term healthcare facility. The cost of the facility was covered in large part by long-term care insurance he received as a beneficiary of Deborah's insurance plan. The remainder of the monthly cost was covered by Medicaid.

Errol's guardian testified that if Errol received his proposed portion of the marital assets, they could be placed in his trust and then used to buy a home for him. She highlighted the importance of maintaining Errol's Medicaid eligibility but did not claim that he could not receive the benefit of his proposed share of the marital assets.

Deborah argued that all of the marital assets except 95% of her monthly Oregon state retirement benefit should be awarded to her. She argued that her Oregon state retirement benefit could pay for Errol's monthly health insurance premiums. Deborah contended that this was equitable because all of Errol's needs were met by Medicaid and his long-term health insurance and because Errol had not identified any additional needs. Further, Deborah noted that at Errol's death assets in his trust would revert to the State of Alaska.

The superior court granted the divorce. In its division of the marital assets, Errol received $ 31,680, which was 40% of the proceeds from the sale of the parties' boat and hand-troll fishing permit. He was also awarded 95% of Deborah's monthly Oregon state retirement benefit, as well as some household items. The court awarded Deborah the rest of the marital estate, including a car, the marital home (which was free of any mortgage and valued at $ 245,000), and her other retirement accounts.

To justify its division the court discussed the relevant statutory factors from AS 25.24.160(a)(4). It found that Deborah was retired, 67 years old, and needed the marital assets to live comfortably for the rest of her life. It also found that, because Errol needed to maintain Medicaid eligibility, his assets were in an irrevocable trust and that any assets in that trust would revert to the State of Alaska upon his death. It specifically found that Errol was unlikely to ever live independently, that all of his needs were met by Medicaid and long-term health insurance, and that he had been unrealistic about his potential future living situation.

Errol now appeals the superior court's unequal property division.

III. STANDARD OF REVIEW

When dividing marital property in a divorce proceeding, the trial court must complete three steps: "(1) determin[e] what property is available for distribution, (2) find[ ] the value of the property, and (3) divid[e] the property equitably."

Errol only appeals the third step: the superior court's division of property, which we review for abuse of discretion and will reverse only if it is "clearly unjust" or "based on a clearly erroneous factual finding or mistake of law." We review factual findings for clear error, reversing "if, upon review of the entire record, we are left with a firm and definite conviction that a mistake has been made."

"An equal division of property is presumptively equitable, but the trial court has broad discretion in this area." "Sometimes ... an unequal division may be required to achieve equity."

"We review de novo the question of whether a judge appears biased, which is assessed under an objective standard."

IV. DISCUSSION

"In dividing property, either equally or unequally, trial courts should be guided by the [ AS 25.24.160(a)(4) ] factors." These statutory factors are "not exhaustive, and the trial court need not make findings pertaining to each factor, but its findings must be sufficient to indicate the factual basis for the conclusion reached." "Where the trial court makes these threshold findings, we generally will not reevaluate the merits of the property division." "The trial court's factual findings enjoy particular deference when they are based 'primarily on oral testimony, because the trial court, not this court, judges the credibility of witnesses and weighs conflicting evidence.' "

On appeal, Errol argues that the superior court abused its discretion for three primary reasons: (1) the court improperly considered Deborah's and her parents' contributions to the marriage; (2) the court improperly based its division of property upon the fact that Errol would never live independently; and (3) the court was biased against Errol.

A. The Superior Court Properly Considered Deborah's And Her Parents' Contributions To The Marital Estate.

Errol claims that the superior court erred by improperly considering Deborah's and her parents' contributions to the marital estate when dividing the property. He argues that these contributions were marital property and therefore the superior court should have divided them equally. However, Errol mischaracterizes the superior court's decision. The superior court did not distinguish these contributions as separate property that should be returned to Deborah after the divorce; rather, it merely considered the fact that Deborah and her parents made these contributions to the marital estate as a relevant factor when dividing the property. We have previously held that a superior court may consider such contributions as relevant when dividing marital property, and the superior court was within its discretion to consider them here.

B. The Superior Court Did Not Clearly Err In Finding That Errol Could Not Live Independently Or Abuse Its Discretion In Considering That Finding When Dividing The Marital Estate.

Errol contends that the superior court wrongly relied on its finding that he could not live independently when it divided the marital estate. The court based its property division primarily on the fact that Deborah's needs far outweighed Errol's because she was living independently and he would need to remain in assisted living for the rest of his life. It further found that Errol lived comfortably and all of his needs were being met in assisted living. The superior court concluded that in order to maintain his comfortable living situation and continue to have his needs met, Errol needed to remain eligible for Medicaid. Errol's Medicaid eligibility, in turn, required him to maintain his current economic condition.

Errol argues that the superior court abused its discretion in dividing the marital estate because he "is now in the process of leaving protective custody and will live independently." His argument presents two issues: first, that the superior court clearly erred in finding that he would never live independently; and second, that the superior court's property division was an abuse of discretion because it relied on this erroneous fact.

Errol contends that the superior court "did not pay enough attention" to evidence suggesting that Errol could eventually live independently. But this argument ignores the contrary evidence before the superior court: testimony from Errol's guardian and Deborah, as well as neuropsychological reports and doctor recommendations, all of which the superior court found to be more credible than Errol's testimony.

We review factual findings for clear error, reversing only if "we are left with a firm and definite conviction that a mistake has been made." Because it is the trial court, not this court, that judges the credibility of witnesses and weighs conflicting evidence, "[t]he trial court's factual findings enjoy particular deference." The superior court's factual finding that Errol was unable to live independently was supported by the evidence, so "we are [therefore not] left with a firm and definite conviction that a mistake has been made."

Errol next seems to argue that because the superior court erred by concluding that he could not live independently, it also erred by relying on that finding when dividing the marital estate. He argues that because the superior court incorrectly found that he could not live independently, it also incorrectly found that Deborah's needs were greater. He then argues that because these findings were clearly erroneous, the superior court abused its discretion by relying upon them to divide the property unequally. But, as we have discussed, the superior court did not err in finding that Errol could not live independently. The superior court therefore did not err by relying on that finding when it found that Deborah's needs were necessarily greater.

Further, AS 25.24.160(a)(4)(G) specifically instructs trial courts to consider "the circumstances and necessities of each party" when dividing a marital estate. Here, the superior court considered both Errol's and Deborah's needs. It concluded that Errol could not live independently and that his needs were being met in assisted living, that he needed to maintain a certain economic condition to remain eligible for Medicaid and therefore remain in assisted living, and that Deborah would continue to live independently and therefore have greater needs. Based on a consideration of its factual findings regarding the parties' individual needs, the court awarded Deborah a greater portion of the marital estate. Because AS 25.24.160(a)(4)(G) specifically directs the superior court to consider these findings and these findings were not clearly erroneous, the superior court did not abuse its discretion.

C. There Was No Bias Against Errol.

Errol argues that the court's division of assets demonstrates that the judge was biased against him and in favor of Deborah. He argues that: (1) the judge unfairly believed Errol could have returned to work if he drank less; (2) the judge inappropriately considered the domestic violence protective order Deborah obtained against Errol; (3) the judge inappropriately called Errol "delusional"; and (4) the judge inappropriately considered "how wonderful Deborah ha[d] been in the marriage." Errol makes this argument for the first time in his brief; he did not raise the issue of bias at trial.

We have repeatedly held that a party must demonstrate that the court formed an unfavorable opinion of the party from extrajudicial information and that bias cannot "be inferred merely from adverse rulings." But judicial bias may also arise during the course of judicial proceedings if "a judicial officer hears, learns, or does something intrajudicially so prejudicial that further participation would be unfair." Errol does not argue that the judge considered any extrajudicial information, nor does he offer evidence of anything that occurred during the proceedings aside from the judge's adverse rulings. The comments and findings that Errol argues show bias were "the result of opinions and attitudes formed in court by the evidence that the judge heard." We therefore find that the superior court judge was not biased against Errol.

V. CONCLUSION

We AFFIRM the superior court's property division.

      Alaska Statutes 13.26.700 -.750 authorize the appointment of a public guardian who "has the same powers and duties with respect to the public guardian's wards and protected persons as a private guardian or conservator." AS 13.26.720(a) ; see AS 13.26.316 (general powers and duties of guardian). Before appointing a public guardian, the court must determine that "the person is unable to manage [his or her own] property and affairs effectively for reasons such as mental illness, mental deficiency, [or] physical illness or disability" and that "the person has property that will be wasted or dissipated unless proper management is provided, or that funds are needed for the support, care, and welfare of the person." AS 13.26.401(2)(A)-(B). A public guardian is appointed when no suitable private guardian or conservator is available. AS 13.26.710(b).

      Medicaid is a health insurance program for low-income, disabled, and other eligible individuals. See AS 47.07.010 ; AS 47.07.020 ; 7 Alaska Administrative Code (AAC) 100.002(b) (2018). Medicaid eligibility is, in part, based on income and assets. See 7 AAC 100.002(b) ; 7 AAC 40.270 ; 7 AAC 40.310.

      This is a "pooled trust" authorized by 7 AAC 100.614. With the trust Errol can retain assets, and though he cannot access the trust himself, any amount can be spent on his behalf without disqualifying him from Medicaid. See 7 AAC 100.606. There is no cap on the amount in the irrevocable trust account.

      Certain exempt resources are not counted when determining Medicaid eligibility. 7 AAC 40.280. Money designated for funeral costs is exempt. 7 AAC 40.280(a)(7).

      See 7 AAC 40.270(a)(1).

      Deborah's insurance paid approximately $ 8,000 per month toward the cost of Errol's care at the facility.

      Deborah's retirement benefit from Oregon would cover the monthly cost for Errol to purchase general health insurance under Deborah's plan for the immediate future.

      The balance of Errol's irrevocable asset trust will revert to the State of Alaska upon his death to reimburse the State for any Medicaid payments it made on Errol's behalf: "A recognized Medicaid trust document must provide that upon termination of the trust by death of the recipient, any money remaining in the trust must be paid to the state, up to the amount the state paid in Medicaid benefits for the recipient while the trust existed." 7 AAC 100.608(b).

      These factors include: (1) "the length of the marriage"; (2) the parties' ages and health; (3) the parties' earning capacities; (4) the parties' financial condition, including cost and access to health insurance; (5) the parties' conduct and "whether there has been unreasonable depletion of marital assets"; (6) "the desirability of awarding the family home ... to the party who has primary physical custody of children"; (7) "the circumstances and necessities of each party"; (8) the time and manner in which the parties acquired the property; and (9) the value and income-producing capacity of the property.

      Dunmore v. Dunmore , 420 P.3d 1187, 1190 (Alaska 2018) (quoting Wagner v. Wagner , 386 P.3d 1249, 1251 (Alaska 2017) ); see also Jones v. Jones , 942 P.2d 1133, 1136 (Alaska 1997).

      Dunmore , 420 P.3d at 1190 (quoting Wagner , 386 P.3d at 1251 ).

      Fletcher v. Fletcher , 433 P.3d 1148, 1152 (Alaska 2018) (quoting Dunmore , 420 P.3d at 1190 ).

      Dunmore , 420 P.3d at 1190 (quoting Fortson v. Fortson , 131 P.3d 451, 456 (Alaska 2006) ).

      Brennan v. Brennan , 425 P.3d 99, 106 (Alaska 2018) (footnote omitted).

      Jones , 942 P.2d at 1137.

      Mengisteab v. Oates , 425 P.3d 80,85 (Alaska 2018) (quoting Wells v. Barile , 358 P.3d 583, 588 (Alaska 2015) ).

      Jones , 942 P.2d at 1137.

      Nicholson v. Wolfe , 974 P.2d 417, 422 (Alaska 1999) (footnote omitted).

      Cartee v. Cartee , 239 P.3d 707, 713 (Alaska 2010) ; see also Jerry B. v. Sally B. , 377 P.3d 916, 938 (Alaska 2016) ("[T]he superior court has significant discretion 'to ascribe different weights to [the AS 25.24.160(a)(4) ] factors upon hearing the evidence at trial.' " (quoting Cartee , 239 P.3d at 715 ) (second alteration in original)).

      Limeres v. Limeres , 320 P.3d 291, 296 (Alaska 2014) (quoting Sheffield v. Sheffield , 265 P.3d 332, 335 (Alaska 2011) ).

      See Lewis v. Lewis , 785 P.2d 550, 558 (Alaska 1990) ("[A]ll property acquired during the marriage is available for distribution, excepting only inherited property and property acquired with separate property[,] which is kept as separate property.").

      See Fortson v. Fortson , 131 P.3d 451, 459 (Alaska 2006) ("We have held that contributions of separate property may be relevant to equitable division."); Green v. Green , 29 P.3d 854, 860 (Alaska 2001) ("We have recognized that premarital contributions to the marital estate may be relevant to the equitable division, even though this is not a factor specifically listed in AS 25.24.160(a)(4)." (footnote omitted)).

      Dunmore v. Dunmore , 420 P.3d 1187, 1190 (Alaska 2018) (quoting Fortson , 131 P.3d at 456 ).

      Limeres , 320 P.3d at 296 (quoting Sheffield , 265 P.3d at 335 ).

      Dunmore , 420 P.3d at 1190.

      See Greenway v. Heathcott , 294 P.3d 1056, 1063 (Alaska 2013) (assuming without deciding that bias raised for the first time on appeal was properly before the court).

      See Berry v. Berry , 277 P.3d 771, 774 (Alaska 2012) (" 'In order to prove a claim of judicial bias,' a party must show that the judge 'formed an opinion of him from extrajudicial sources.' " (quoting Peterson v. Ek , 93 P.3d 458, 467 (Alaska 2004) )).

      Kinnan v. Sitka Counseling , 349 P.3d 153, 160 (Alaska 2015) (quoting Khalsa v. Chose , 261 P.3d 367, 376 (Alaska 2011) ).

      Brown v. State , 414 P.3d 660, 661 n.3 (Alaska 2018) (Winfree, J., concurring in part and dissenting in part) (citing Jerry B. v. Sally B. , 377 P.3d 916, 925 (Alaska 2016) ; Grace L. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs. , 329 P.3d 980, 988-89 (Alaska 2014) ; R.J.M. v. State, Dep't of Health & Soc. Servs. , 946 P.2d 855, 869-70 (Alaska 1997)superseded by statute on other grounds , ch. 99 §§ 1, 18, SLA 1998); see also Greenway , 294 P.3d at 1064 (suggesting that something "in the court's 'demeanor, tone, or words' " could "indicate[ ] actual bias or give[ ] an appearance of bias").

      Hanson v. Hanson , 36 P.3d 1181, 1186 (Alaska 2001).


author: Judge MANNHEIMER.

text:
    Karan Vanae CLIFTON, Appellant, v. STATE of Alaska, Appellee.
    Court of Appeals No. A-12395
    Court of Appeals of Alaska.
    February 6, 2019
    Kelly R. Taylor, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Sharon L. Marshall, Anchorage, under contract with the Office of Criminal Appeals, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee.
    Before: Mannheimer, Chief Judge, and Suddock, Superior Court Judge.
    MEMORANDUM OPINION

      Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).

   Judge MANNHEIMER.

In August 2006, Karan Vanae Clifton was working at an Anchorage longterm care facility, where she was responsible for administering medications to patients. Two managers of the facility-Clifton's direct supervisor, and a human resources manager-asked Clifton to meet with them to discuss her failure to properly document her administration of medications, as well as Clifton's comments that government agents were engaged in a conspiracy to sabotage her life.

At this meeting, Clifton was told that she would have to submit to a psychiatric examination before she could return to work. In response, Clifton pulled a semi-automatic pistol from her purse, shoved it against her supervisor's chest, and pulled the trigger. Fortunately, Clifton had neglected to rack the pistol, so there was no cartridge in the firing chamber.

Clifton's supervisor was able to wrest the pistol from her, and several employees restrained Clifton until the police arrived.

Clifton was ultimately convicted of one count of attempted murder (for trying to kill her supervisor) and one count of third-degree assault (for placing the human resources manager in fear of imminent serious physical injury). She received a composite sentence of 50 years' imprisonment with 20 years suspended (i.e. , 30 years to serve).

In this appeal, Clifton challenges several of her conditions of probation, and she also requests a correction of her pre-sentence report. For the reasons explained in this opinion, we vacate the challenged conditions of probation, and we direct the superior court to amend one of the statements in the pre-sentence report.

The probation condition requiring Clifton to take all medications prescribed for her by a licensed medical practitioner approved by her probation officer

Clifton challenges Special Probation Condition 11, which requires her to "ingest, take[,] or receive by way of injection medications as prescribed by a licensed practitioner who has been approved by the probation officer or by [the Anchorage Community Mental Health Services' Institutional Discharge Program] in consultation with the defendant."

We have recently addressed this same probation condition in two published decisions.

In Kozevnikoff v. State and in Love v. State , we held that this type of probation condition must be subjected to special scrutiny-both because this probation condition restricts a defendant's right of self-determination regarding medical treatment, and because it potentially requires a defendant to take psychotropic medication against their will.

In Clifton's case, even though the challenged probation condition ostensibly applies to any and all medications that might be prescribed by Clifton's doctors, we do not read the condition so broadly. This probation condition must be interpreted in the context of Clifton's case-and, given that context, we interpret the probation condition as applying only to mental health medication that Clifton's medical providers deem necessary for her rehabilitation and/or the safety of the public.

But even so limited, the challenged probation condition falls squarely within the scope of our decision in Kozevnikoff . In Kozevnikoff , we held that even when the record suggests that a defendant might need psychotropic medication, the sentencing judge must not impose a condition of probation that requires the defendant to take such medication against their will unless the judge has held a hearing "where medically informed expert testimony ... is presented to the judge", and where the defendant has "the opportunity to present [their] own expert testimony, and to argue for alternatives to any medication at all, or to a particular medication."

We also recognized in Kozevnikoff that, especially when a defendant receives a lengthy term of imprisonment (as is true in Clifton's case), it is often better for the sentencing court to make this type of decision closer to the time when the defendant is released on probation. Accordingly, we held that a sentencing judge has the authority to impose a condition of probation that calls for a judicial hearing near the date of the defendant's release-to determine whether, at that time, the circumstances justify an order compelling the defendant to take medication. Ibid.

The record in Clifton's case shows that the sentencing judge affirmatively evaluated the need to compel Clifton to take psychotropic medication. However, as we are about to explain, the record also shows that the judge did not apply the correct level of scrutiny to the proposed probation condition.

The author of Clifton's pre-sentence report noted that Clifton had been diagnosed as suffering from "Delusional Disorder, Persecutory Type". According to the pre-sentence report, this delusional disorder is a chronic mental illness that is "frequently lifelong", and treatment of this disorder would normally include "a combination of drug therapy and psychotherapy". The author of the pre-sentence report warned that if Clifton did not comply with this medication regimen, "her delusional beliefs [could] escalate to another confrontational situation"-i.e. , a return to the "bizarre and violent behavior" she exhibited in this case.

The prosecutor likewise asked the sentencing court to require Clifton to take prescribed psychotropic medication because, unless the conditions of probation addressed Clifton's mental illness, "you have a walking time bomb".

Clifton's defense attorney acknowledged that Clifton's statements and behavior "may have" reflected disordered thinking, but the defense attorney objected to the proposed probation condition because no one had presented the court with information about "what medication [Clifton] ha[d] been prescribed, by whom or for what purpose", or "the effectiveness of a particular medication, or its side effects".

The defense attorney noted that several years had passed since Clifton's offenses and that, during those years, the Department of Corrections had not found it necessary to forcibly medicate Clifton. Instead, according to the defense attorney, "[Clifton's] current mental health treatment providers describe[d] her as capable of functioning in society".

The sentencing judge noted the "long history" of Clifton's case (i.e. , the several occasions on which the court litigated Clifton's competency to stand trial), and the judge recounted his own experiences with Clifton in court. He conceded that Clifton was currently doing "very well in a controlled environment", and that the "signs and symptoms of her mental illness [had] dissipated", but the judge noted that, in times past, Clifton's mental illness had rendered her "incomprehensible", with perceptions that were "not rooted in reality".

The sentencing judge concluded that Clifton's prospects for rehabilitation rested on the "degree of [her] mental illness, and ... how responsive [her] condition is to treatment", as well as the possibility of "relapse into similar conduct once Ms. Clifton is out of a controlled environment". The judge admitted that he did not currently know the degree of Clifton's mental illness, or how responsive this illness would be to treatment, or whether it was likely that this illness would lead Clifton to engage in violent conduct once she was released. But even so, he imposed the proposed probation condition.

The procedure followed in Clifton's case does not comport with our holding in Kozevnikoff -that even when the record suggests that the defendant needs psychotropic medication, a sentencing judge must not compel the defendant to take such medication unless the judge has heard medically informed expert testimony on this question, and the defendant has been given the opportunity to present their own expert testimony, and to argue for alternatives or limitations on the proposed probation condition.

In addition, because Clifton has been sentenced to serve 30 years in prison, we conclude that, in any event, it was premature for the judge to impose a probation condition compelling Clifton to take psychotropic medication. Instead, as we suggested in Kozevnikoff , the judge should have waited until closer to the time when Clifton would be released.

Accordingly, we vacate Special Probation Condition 11, and we direct the superior court to reconsider this matter. If, after hearing expert testimony, the superior court again concludes that there is a need to require Clifton to take psychotropic medication, the court should nevertheless frame the probation condition so that the final decision on this issue is delayed until nearer to Clifton's release date.

The probation condition requiring Clifton to "cooperate" with obtaining a guardian or conservator for herself

Special Probation Condition 14 requires Clifton to "cooperate with obtaining a guardian/conservator/payee as determined clinically appropriate by the IDP+ clinician." Clifton's attorney did not object to this condition of probation, and the sentencing judge did not discuss this probation condition during his sentencing remarks. But on appeal, Clifton argues that this probation condition improperly infringes her rights to liberty and privacy; she argues that the record fails to disclose any significant reason to doubt that she will be capable of managing her own affairs when she is released from prison.

Because there was no objection to this probation condition, Clifton must show that it amounts to plain error.

In its brief to this Court, the State acknowledges that there are problems with the sentencing court's directive that Clifton "cooperate" with the process of obtaining a guardian or conservator. We agree that this probation condition is problematic.

Any proceeding to appoint a guardian or conservator for Clifton against her will-i.e. , a proceeding to divest Clifton of her ordinary control over her life-would be an adversarial proceeding in which Clifton would be entitled to significant procedural rights. The challenged probation condition appears to strip Clifton of those procedural rights, by requiring her to "cooperate" with the efforts to appoint a guardian or conservator to manage her affairs.

Given the importance of the rights at stake, we conclude that this issue should be governed by rules analogous to the rules we adopted in Kozevnikoff for probation conditions that compel a defendant to ingest psychotropic medication.

In other words, before a sentencing court requires a defendant to relinquish their normal right to oppose the involuntary appointment of a guardian or conservator, the court must subject this proposed condition of probation to special scrutiny, and the court must have affirmative evidence that the defendant will be incapable of managing their own affairs when the defendant is released from prison. If the defendant has been sentenced to a lengthy term of imprisonment, then it would ordinarily be premature for a sentencing court to make this determination until near the time of the defendant's release.

For these reasons, we conclude that it was plain error for the sentencing court to impose Special Probation Condition 14. We vacate this probation condition, and we direct the superior court to reconsider this matter.

The probation conditions requiring Clifton to submit to warrantless searches for controlled substances

Three of Clifton's probation conditions deal with warrantless searches for controlled substances. Special Probation Condition 7 requires Clifton to submit to breath, urine, or blood testing for controlled substances at the request of her probation officer. Special Probation Condition 8 requires Clifton to "submit a sufficient sample of [her] bodily fluids for testing ... [at] the direction of the Probation Officer." And Special Probation Condition 9 requires Clifton to submit to searches of "[her] person, personal property, residence[,] or any vehicle in which [she] may be found, for the presence of ... illegal drugs, and/or drug paraphernalia."

In the superior court, Clifton's attorney objected to these probation conditions on the ground that the record contained no evidence that Clifton had abused controlled substances. In Clifton's pre-sentencing comments, she declared that, for religious reasons, she did not even drink alcohol, much less take controlled substances unlawfully.

Under Roman v. State , 570 P.2d 1235 (Alaska 1977), conditions of probation must be "reasonably related to the rehabilitation of the offender and the protection of the public and must not be unduly restrictive of liberty." And conditions that restrict constitutional rights are subject to special scrutiny: before imposing such conditions, a sentencing judge must affirmatively consider and have good reason for rejecting less restrictive alternatives.

Thus, in Roman , our supreme court held that a probationer or parolee is entitled to the normal protection against warrantless searches unless those searches are "reasonably ... required by the legitimate demands of [the supervising] authorities" -by which the court meant that the reason for authorizing these searches must be based on the defendant's rehabilitation and/or the protection of the public.

Here, Clifton's attorney asserted that the record contained no evidence that Clifton had ever abused controlled substances-and the sentencing judge made no finding to the contrary. Rather, the sentencing judge imposed these three probation conditions without analyzing whether they were justifiable under Roman . Because the defense attorney actively objected to these conditions, the judge's action was improper.

On appeal, the State argues that these probation conditions were justified because the record suggests that Clifton was taking controlled substances at the time of her offenses in this case. But the record also indicates that Clifton was taking these substances under prescription. And, more importantly, the sentencing judge made no finding as to whether Clifton's ingestion of these prescribed substances had any relationship to her criminal behavior.

The State is essentially asking this Court to decide in the first instance whether the challenged probation conditions are justified. But that was a matter for the sentencing judge to decide-and the sentencing judge never made the necessary finding under Roman .

Accordingly, we vacate Special Probation Conditions 7, 8, and 9.

We note that, toward the end of Clifton's opening brief, she declares that she also wishes to challenge Special Probation Condition 12, which requires her to "actively participate [in] and successfully complete substance abuse programming ... as recommended by [a] designated outpatient provider or at the discretion of the probation officer".

However, all of the substantive discussion contained in Clifton's briefs to this Court relates to the warrantless search requirements of Special Probation Conditions 7, 8, and 9. Clifton never addresses the treatment program requirement of Special Probation Condition 12. We therefore do not address Clifton's potential attacks on Special Probation Condition 12.

Clifton's objection to a statement in the pre-sentence report

In the "evaluation" section of Clifton's pre-sentence report, the pre-sentence investigator referred to Clifton's "methodical and meticulous efforts ... to murder the two individuals". In the superior court, Clifton's attorney objected that this characterization was materially inaccurate. The defense attorney noted that Clifton was only charged with attempting to murder one person (her direct supervisor). With respect to the other person in the room (the human resources manager), Clifton was charged with third-degree assault for placing that person in fear of imminent serious physical injury.

We agree with Clifton that the statement in the pre-sentence report is potentially confusing or misleading. Although the record supports the conclusion that Clifton was willing to kill the human resources manager (in addition to killing her direct supervisor), the record does not support the conclusion that Clifton actively attempted to kill the human resources manager.

We therefore direct the superior court to amend the challenged statement in the pre-sentence report.

Conclusion

For the reasons explained here, we vacate the five probation conditions that Clifton challenges in this appeal: Special Probation Conditions 7, 8, 9, 11, and 14. We further direct the superior court to amend the challenged statement in the pre-sentence report.

In all other respects, the superior court's judgement is AFFIRMED.

      433 P.3d at 546-48, 2018 WL 3679314 at *1-2 (Alaska App. 2018).

      433 P.3d at 1060-61, 2018 WL 6273351 at *2 (Alaska App. 2018).

      Kozevnikoff , 433 P.3d at 547-48, 2018 WL at 3679314 at *2.

      Id. , 2018 WL 3679314 at *2.

      State v. Ranstead , 421 P.3d 15, 23 (Alaska 2018).

      Roman , 570 P.2d at 1240.

      Peratrovich v. State , 903 P.2d 1071, 1079 (Alaska App. 1995).

      Roman , 570 P.2d at 1237.

      Roman , 570 P.2d at 1240, as later interpreted in State v. Thomas , 133 P.3d 684, 685-86 (Alaska App. 2005).


text:
    STATE of Alaska, Petitioner, v. Jeremy D. SIMILE, Respondent.
    Court of Appeals No. A-13315
    Court of Appeals of Alaska.
    February 8, 2019
    Bailey J. Woolfstead, Assistant District Attorney, Juneau, and Jahna Lindemuth, Attorney General, Juneau, for the Petitioner.
    Frank Singh III, Assistant Public Defender, Juneau, and Quinlan Steiner, Public Defender, Anchorage, for the Respondent.
    Before: Mannheimer, Chief Judge, and Allard and Wollenberg, Judges.
   Judge MANNHEIMER.

The State of Alaska has petitioned us to clarify the provisions of newly amended AS 12.55.110 -the statute that governs a court's sentencing authority over defendants who receive a wholly or partially suspended sentence and are placed on probation, if the court later finds that the defendant violated their probation.

In 2016, the legislature amended this statute, placing new limits on the amount of suspended jail time that a court can impose when the court revokes a defendant's probation. See SLA 2016, ch. 36, § 84 (effective January 1, 2017).

Under the new version of AS 12.55.110, some violations of probation are now classified as "technical violations". This term, which is defined in subsection (h)(2) of the statute, refers to any violation of probation that neither constitutes a new criminal offense nor a failure to complete treatment for sex offenders or batterers.

Subsections (c) and (d) of AS 12.55.110 now limit a court's sentencing authority in instances where a defendant has committed only a technical violation of probation. These two provisions of the statute draw a distinction between (1) technical violations of probation that qualify as "absconding" and (2) all other technical violations of probation.

We have placed the word "absconding" in quotation marks because subsection (h)(1) of AS 12.55.110 defines this word in a non-standard way. As defined in subsection (h)(1), a probationer "absconds" if the probationer fails to report to a probation officer within five working days after their release from custody upon their completion of an active term of imprisonment, or if the probationer fails to attend a scheduled meeting with a probation officer and then fails to make contact with the probation officer within 30 days following the missed meeting.

Subsection (d) of AS 12.55.110 declares that if the defendant's technical violation of probation is an act of "absconding", then the court may not impose more than 30 days of the defendant's suspended jail time.

Subsection (c) of AS 12.55.110 declares that court's sentencing authority is even more circumscribed if the defendant's probation is revoked for a technical violation that does not include "absconding". For these less serious technical violations, the sentencing court can impose no more than:

(1) three days' imprisonment for a first probation revocation;
(2) five days' imprisonment for the second probation revocation; or
(3) ten days' imprisonment for the third probation revocation.

However, for a fourth or subsequent technical violation, AS 12.55.110(c)(4) declares that there is no limit on the court's sentencing authority. The court can impose any or all of the defendant's remaining suspended jail time.

In the present case, the State petitioned to revoke the defendant's probation based on two separate allegations: an allegation that the defendant had committed absconding, and an allegation that the defendant had committed a separate fourth technical violation of probation.

Because these two allegations were presented to the sentencing court in the same petition to revoke probation, the question arose whether the court's sentencing authority was governed by subsection (d), the provision that limits sentences for absconding to 30 days' imprisonment, or instead by subsection (c), the provision that grants the court unrestricted sentencing authority if the defendant is found to have committed a fourth or subsequent technical violation of their probation.

The superior court ruled that its sentencing authority was limited to the 30 days specified in subsection (d) as the upper sentencing limit for an act of absconding. We conclude that this ruling is mistaken.

First, it is clear from the structure of subsections (c) and (d) that the legislature viewed the act of absconding as an aggravated type of technical violation. Even though a court's sentencing authority is normally limited to just a few days' imprisonment for a first, second, or even a third technical violation of probation, the legislature gave courts the authority to impose up to 30 days' imprisonment in instances where that first, second, or third technical violation constituted an act of absconding.

But the legislature also declared that when the defendant commits a fourth or subsequent technical violation of probation, there should be no special constraints on the court's sentencing authority. In these circumstances, the legislature wanted to give courts full authority to impose any portion, or all, of the defendant's remaining suspended jail time.

This policy would be defeated if, in cases where the petition to revoke the defendant's probation included an additional allegation of absconding, the court's sentencing authority was capped at 30 days.

Moreover, imposing a 30-day cap on the court's sentencing authority in these circumstances would stand the legislature's classification system on its head. As we have explained, the legislature intended for absconding to be treated as an aggravated type of technical violation-a circumstance that significantly increases the court's sentencing authority beyond the authority that the court would otherwise have when the court sentenced a defendant for a first, second, or third technical violation.

But under the superior court's interpretation of the statute, the defendant's commission of an act of absconding would be a mitigating factor that limited the sentencing court's authority when the defendant's probation was being revoked for a fourth or subsequent technical violation. This result is simply inconsistent with the legislature's aims.

We also note that the superior court's interpretation of the statute would almost certainly lead to the elevation of form over substance. If, as the superior court ruled, the addition of an absconding allegation would operate to place a 30-day limit on a defendant's sentence for a fourth or subsequent technical violation of probation, the State could simply refrain from adding the absconding allegation to its petition-adopting the strategy of waiting to apprise the court of the defendant's act of absconding until the time came to argue what sentence the defendant should receive for the other technical violation(s).

For these reasons, we GRANT the State's petition for review and we REVERSE the ruling of the superior court. We hold that when the court revokes a defendant's probation for a fourth or subsequent technical violation, AS 12.55.110(d) does not limit the sentencing court's authority even when the State's petition to revoke probation contains an additional allegation of absconding.