author: BOLGER, Chief Justice.

text:
    John BUCKLEY, Appellant, v. AMERICAN FAST FREIGHT, INC. and Matthew S. Carroll, Appellees.
    Supreme Court No. S-16693
    Supreme Court of Alaska.
    June 21, 2019
    Michael Cohn, Weidner & Associates, APC, Anchorage, for Appellant.
    Susan Orlansky, Reeves Amodio LLC, and Eric Sanders, Law Office of Eric Sanders, Anchorage, for Appellees.
    Before: Bolger, Chief Justice, Winfree, Stowers, Maassen, and Carney, Justices.
   BOLGER, Chief Justice.

I. INTRODUCTION

A worker for a temporary employment service was injured while working for a shipping company. At the time of injury he was performing a task prohibited by the contract between the temporary employment service and the shipping company. The injury resulted in loss of the worker's hand and part of his arm. After getting workers' compensation benefits from the temporary employment service, the worker brought a negligence action against the shipping company and one shipping company employee. The superior court decided on cross-motions for summary judgment that the exclusive liability provision of the Alaska Workers' Compensation Act (Act) barred the action. We reverse the grant of summary judgment because material issues of fact preclude it.

II. FACTS AND PROCEEDINGS

John Buckley started working for Labor Ready, Inc., a temporary employment service, in 2009. According to Buckley, workers would go to the Labor Ready office in the morning for assignments, and "there would be some days that [they] would be sent out and some days when there would be no work." Workers with assignments were given a "ticket" that they presented to the company using Labor Ready's services. Labor Ready employees could get "repeat" tickets when a contracting employer wanted Labor Ready to send those employees again, but Labor Ready did not always honor such requests. Labor Ready workers had to get approval from Labor Ready to work for a specific customer even if the customer and the worker both wanted the worker to continue to work for that customer.

The "conditions of service" on the ticket prohibited Labor Ready employees from engaging in specified activities without Labor Ready's "prior written consent." For purposes of this case, the important restriction was that Labor Ready workers were not allowed "to operate dangerous machinery, mobile equipment or vehicles." Labor Ready paid the worker and provided workers' compensation coverage. The customer was required to determine whether Labor Ready's workers were qualified for the particular work assignment "during the first two hours of work" and "inform Labor Ready of any changes in work assignment." The contract provided that Labor Ready's employees were "under Customer's supervision, direction and control" and required the customer to provide safety equipment, information, and briefing to Labor Ready's employees. The contract did not specifically provide that a customer could fire a worker supplied by Labor Ready.

Labor Ready's workers did not have to report for work every day; as Buckley put it, it was "up to you to go." He testified that Labor Ready employees could call beforehand to let Labor Ready know they would not be there, but if employees did not, Labor Ready "didn't really care" and would "put somebody else" on the job. Buckley, for example, did not work for several weeks in 2011 because he was helping care for his mother.

During the time he worked for Labor Ready, Buckley reported to Labor Ready's office in the morning and picked up a ticket with his job assignment. Buckley prided himself on being a good worker and testified that Labor Ready at times sent him to work for new clients to impress the clients even if another client had requested Buckley for those days. In late 2011 Labor Ready at times assigned Buckley to work at American Fast Freight as a general laborer; he worked 17 non-consecutive days for American Fast Freight during the six weeks preceding the accident underlying this case.

Buckley enjoyed his work with American Fast Freight; "the goal was that [Buckley] wanted to go to work as an employee of American Fast Freight ... and American Fast Freight was hoping to hire [him]." But Buckley also testified that Labor Ready had sent him to work elsewhere, even when American Fast Freight had requested him. When he worked for American Fast Freight his job mainly involved loading and unloading freight. On any given day he might work in the warehouse or be assigned to a particular truck to accompany the driver for deliveries. During the time Buckley was assigned to American Fast Freight he got to know some of the drivers and had established relationships with some of them. Buckley indicated he could refuse to work with a truck driver there and that he had done so.

On December 22, 2011, Labor Ready assigned Buckley to work at American Fast Freight. A driver, Denny Hawkins, told Buckley to come with him to deliver freight in the Wasilla area. Buckley grabbed "[his] stuff" - his "stuff" included a box knife, warm clothes, and an extra pair of gloves - and went out to Wasilla with Hawkins. After they completed their deliveries, Hawkins told Buckley he would treat him to lunch. Hawkins told American Fast Freight's dispatcher that he and Buckley were headed to lunch. According to Buckley, Hawkins got a call on his cell phone from another driver, Matthew Carroll, asking Hawkins for assistance, and Hawkins agreed to help him without informing the dispatcher. Carroll's tractor-trailer was stuck in a snow berm near the Frontiersman newspaper office in Wasilla, and he was unable to move it. Instead of going to lunch, Hawkins and Buckley headed to Carroll's truck.

Hawkins unhitched his trailer and drove his truck so it was facing Carroll's truck; he then attached a tow chain to the trucks. In the meantime Buckley began to dig out the stuck wheel, first using his hands and then a shovel, but Carroll's truck remained stuck. The precise sequence of events that followed is difficult to discern because witnesses gave inconsistent accounts at different times, but someone decided to use tire chains to try to gain traction. American Fast Freight drivers sometimes laid tire chains out on the ground, rather than put them around the tire, to improve traction when a truck was stuck on snow or ice: Buckley said he had seen other American Fast Freight drivers do so and had assisted them in the past; Carroll said he too had previously used chains this way and had seen others do it; and Hawkins also indicated he had done this before. Two company officials reported during the subsequent accident investigation that drivers used chains this way at times, and company officials indicated that American Fast Freight was aware of the practice - one official said he had himself used chains this way as an American Fast Freight driver.

Buckley laid a tire chain in front of the wheel and used hand and verbal signals to let the drivers know when he was clear of the truck. Carroll then tried to move the truck to engage the chain and get traction. The method was not successful, and in fact the wheel's spinning caused the tire chain to shoot out the back. The three men used the same approach four times with no success. Buckley then thought of laying a second chain behind the wheel, because he "noticed [Carroll] was rocking back a little bit." He asked Carroll where another chain was and got a second chain from one of the trucks so there would be a chain both in front of and behind the stuck wheel.

The accident happened on the fifth attempt to move the truck. The drivers reported being focused on their trucks because they were concerned about a collision if Carroll got traction. According to Buckley, he was in the process of positioning the second tire chain behind the stuck wheel when Carroll gunned the truck engine; the wheel turned and caught the tire chain Buckley was adjusting, pulling his arm under the wheel. Buckley later said he had not given Carroll "any signal or indication ... to move the vehicle." Hawkins noticed something amiss, got out of his truck, ran toward Buckley, and told Carroll to "put it in gear and spin it" because Buckley's hand was trapped. Hawkins went to the Frontiersman's office to get help. Buckley's arm was sliced just below the elbow and, in every practical sense, severed - the two parts of his arm remained barely attached. Buckley was also bleeding heavily. Frontiersman employees and the two drivers assisted Buckley. One Frontiersman employee used his belt as a tourniquet to staunch the bleeding until emergency medical personnel arrived; Buckley credited him with saving his life. Buckley had multiple surgeries, and according to American Fast Freight, his right arm was amputated above the elbow. He received workers' compensation benefits, presumably from Labor Ready given the terms of the contract between Labor Ready and American Fast Freight.

The Alaska Department of Labor & Workforce Development, Division of Labor Standards & Safety, Occupational Safety & Health (AKOSH) conducted an investigation that ultimately led to a $ 5,600 fine against American Fast Freight. American Fast Freight indicated that Buckley should not have been engaged in any activities related to freeing the truck and said "that for [the] future, [the] company has specifically prohibited temporary employees from being involved with tire chain up and stuck vehicles." According to AKOSH, the workers' actions during the incident reflected a number of violations of company policy.

In November 2013 Buckley sued American Fast Freight, Carroll, and John Does 1-5 for negligence. American Fast Freight and Carroll answered, denying liability and raising the exclusive liability provision of the Act, AS 23.30.055, as a defense. No one joined Labor Ready.

The parties filed cross-motions for summary judgment. American Fast Freight argued that it met all three tests for a special employer relationship set out in Anderson v. Tuboscope Vetco, Inc. and that Buckley's suit was barred by AS 23.30.055 on that basis. Buckley's cross-motion sought to bring his case under Estate of Milos v. Quality Asphalt Paving, Inc. , where we reversed a summary judgment on exclusive remedy grounds because a material issue of fact remained about the "work-relatedness" of the injury, i.e. whether it arose out of and in the course of employment.

Pertinent to the question of a special employment relationship, Buckley argued that (1) no contract existed between himself and American Fast Freight; (2) Tuboscope was factually distinguishable from his case for various reasons, including that he reported to Labor Ready rather than American Fast Freight; and (3) the special employment doctrine did not apply to his case because Labor Ready continued to exercise control over its employees' duties through its customer contract. And with respect to his own cross-motion for summary judgment, Buckley contended that as a matter of law the injury did not arise out of and in the course of the employment because (1) he was on an unpaid lunch break when the accident happened; (2) using the tire chains as the workers did amounted to operating dangerous machinery, a violation of the contract between Labor Ready and American Fast Freight; (3) Hawkins's and Carroll's actions violated company policy; and (4) he had personal motives for participating in the activity. Buckley supported his assertion about operating dangerous machinery with a mechanical engineer's expert opinion.

In opposition to Buckley's motion, American Fast Freight said that for purposes of summary judgment, it would assume several facts, including the following: Carroll and Hawkins violated employer rules; "letting Buckley handle tire chains ... violated the contract between Labor Ready and [American Fast Freight]"; and Buckley and Hawkins were on an unpaid lunch break at the time they went to assist Carroll. It argued that even if those facts were true, Buckley's lawsuit was still barred by the exclusive remedy provision.

The superior court granted summary judgment to American Fast Freight, deciding it was shielded by the exclusive liability provision of the Act. The superior court first considered the three-part test in Tuboscope , deciding as a matter of law that (1) Buckley had an implied employment contract with American Fast Freight; (2) his work was done exclusively for the benefit of American Fast Freight; and (3) American Fast Freight had the right to supervise Buckley. From these findings the court concluded that American Fast Freight was Buckley's employer and was, in addition to Labor Ready, liable for workers' compensation benefits for the accident.

The court then turned to whether Buckley's injuries arose out of and in the course of his employment with American Fast Freight and decided as a matter of law that they did. Applying factors discussed in Estate of Milos , the court decided that Buckley being on an unpaid lunch break was immaterial because of the "strong nexus between Buckley's action and his employment with [American Fast Freight]." It also decided that Buckley's injury was "reasonably foreseeable from his employment" because "[a] truck getting stuck in the snow is not an uncommon occurrence in Alaska" and "it was common practice for nearby [American Fast Freight] employees to be called to assist other drivers."

The court decided that the following facts were immaterial to the question of work-relatedness: (1) Buckley's activity was outside his job duties; (2) the activity was prohibited by the contract between American Fast Freight and Labor Ready; and (3) American Fast Freight admitted to AKOSH that Buckley was injured performing a task "outside the scope of his duties." The superior court granted summary judgment to American Fast Freight based on the exclusive remedy provision and denied summary judgment to Buckley, dismissing the case and entering final judgment against Buckley. Buckley appeals.

III. STANDARD OF REVIEW

We review a grant of summary judgment de novo. "Summary judgment is proper if there is no genuine factual dispute and the moving party is entitled to judgment as a matter of law." "[A] party seeking summary judgment has the initial burden of proving, through admissible evidence, that there are no disputed issues of material fact and that the moving party is entitled to judgment as a matter of law." If the moving party makes that showing, "the burden shifts to the non-moving party 'to set forth specific facts showing that he could produce evidence reasonably tending to dispute or contradict the movant's evidence and thus demonstrate that a material issue of fact exists.' " "[A] material fact is one upon which resolution of an issue turns." "The standard for finding a genuine issue of fact at summary judgment is lenient." Whether a person is an employee for purposes of the Workers' Compensation Act is a mixed question of law and fact.

IV. DISCUSSION

A. Material Factual Disputes Precluded Summary Judgment On The Special Employment Relationship.

The superior court granted American Fast Freight's summary judgment motion, deciding as a matter of law that American Fast Freight was Buckley's special employer under the test we adopted in Anderson v. Tuboscope Vetco, Inc. In that case we adopted a three-part test for special employment relationships from Larson's treatise on workers' compensation:

When a general employer lends an employee to a special employer, the special employer becomes liable for workmen's compensation only if:
(a) the employee has made a contract of hire, express or implied, with the special employer;
(b) the work being done is essentially that of the special employer; and
(c) the special employer has the right to control the details of the work.[ ]

When these conditions are satisfied in relation to both the general employer and the special employer, then both employers are liable for workers' compensation.

Although Tuboscope is our most recent decision about the special employment relationship, we acknowledged in Tuboscope that we had applied parts of the special employment doctrine in prior cases. In Cluff v. NANA-Marriott , we stated that "the requirements for finding an employment relationship for workers' compensation purposes between a lent employee and a special employer are stricter than the standards for finding an employment relationship between an employee and an employer where there is only one employer."

Determining whether an implied employment contract was formed involves "considering all the factors in light of the surrounding circumstances." "An implied employment contract is formed by a relation resulting from 'the manifestation of consent by one party to another that the other shall act on his behalf and subject to his control, and consent by the other so to act.' " In the special employment context, we have also noted Larson's "great emphasis on the importance of a contract for hire with a special employer" because in a special employment relationship, the employee "loses the right to sue the special employer at common law for negligence; and ... the courts have usually been vigilant in insisting upon a showing of a deliberate and informed consent by the employee before employment relation will be held a bar to common-law suit."

The parties here disagree about the existence of an implied contract of hire between Buckley and American Fast Freight. Buckley has consistently argued that his employment relationship with American Fast Freight is different from the employment relationship described in Tuboscope and that no special employment relationship existed between himself and American Fast Freight. In contrast American Fast Freight has argued that its relationship with Buckley falls squarely within the framework set out in Tuboscope .

Tuboscope involved two companies, Tuboscope Vetco, Inc. and Olsten Staffing Services, that had "a continuing contract agreement for Olsten to provide temporary employees to Tuboscope," including a category of employees called PTP ("personnel transfer plan") employees. "Tuboscope recruited, hired, placed, and directly and exclusively supervised PTP employees; Olsten provided the payroll administration, benefits, and workers' compensation coverage for PTP employees." A PTP employee was injured while working for Tuboscope; he received workers' compensation benefits from Olsten and later sued Tuboscope. After adopting the three-part test from Larson's treatise, we applied it to the facts of the case and held that Tuboscope met all of the tests.

We stated, "If the temporary employer hires, trains, employs, directs, and reserves the right to terminate the temporary employee, and the labor broker merely acts in the capacity of a payroll and benefits administrator, an employment contract exists between the temporary employer and the temporary employee." We noted in our discussion that "[t]he contract between Olsten and Tuboscope regarding PTP employees effectively provided that Tuboscope would interview, hire, train, and employ the PTP employees."

The written contract between Labor Ready and American Fast Freight lacked several of these provisions, and the only additional pieces of evidence American Fast Freight submitted to the superior court were portions of Buckley's deposition testimony, a copy of the work ticket from the day Buckley was injured, a copy of the "Conditions of Service" in its contract with Labor Ready, and copies of some invoices from Labor Ready to American Fast Freight, showing that Buckley had worked at American Fast Freight on November 21.

Unlike the worker in Tuboscope , Buckley did not "interview[ ] directly with" American Fast Freight, and no evidence shows that American Fast Freight recruited him. The uncontested facts showed that while American Fast Freight may have requested Buckley as a worker, as the superior court noted, Labor Ready was evidently not obligated to comply with the request and provide Buckley as a worker to American Fast Freight. Buckley testified that Labor Ready had sent him to work for other clients of Labor Ready, even when American Fast Freight had requested him. Buckley's testimony does not establish that American Fast Freight could hire him as that term is generally understood, nor does any testimony or other evidence indicate that American Fast Freight had discretion to refuse workers Labor Ready sent to them under the contract except where it determined within the first two hours of work that a sent worker was not qualified.

Neither the contract nor Buckley's testimony clearly indicates that American Fast Freight retained the right to fire Labor Ready workers. The written contract between Labor Ready and its clients required the client to determine within the first two hours of a day whether a worker was qualified to perform the contracted work but was otherwise silent about American Fast Freight's ability to fire Labor Ready employees. The superior court cited Buckley's deposition testimony to support its decision that American Fast Freight could fire Labor Ready employees, but when Buckley was asked directly if, when "Labor Ready guys ... messed up, they got fired on the spot," Buckley replied, "I don't really know what happened to them" and commented that he was told they were sent home.

Buckley's other testimony is equivocal; the only testimony based on his direct observation indicated that Labor Ready employees "got sent home" after they "didn't want to do that kind of work," with Buckley adding, "[T]hey would just leave and say, 'The hell with it.' They wouldn't even take the ticket." While this may permit an inference that American Fast Freight could fire the Labor Ready workers, it also permits an inference that the Labor Ready employees just left the job or that American Fast Freight determined the workers were not suitable during the first two hours of work.

There is also no evidence that Buckley specifically consented to the formation of an employment relationship with American Fast Freight. In contrast to the worker in Tuboscope , who was recruited and interviewed by the special employer, Buckley was merely sent to provide general labor to American Fast Freight and did not consistently work for that company. Although Buckley wanted to be hired permanently by American Fast Freight, nothing in the record shows Buckley understood that by working on assignment as a general laborer for Labor Ready, he was an employee of American Fast Freight at the time of his injury.

In short, viewed in the light most favorable to Buckley and making reasonable inferences in his favor, the evidence in the record does not establish as a matter of law that Buckley had an implied employment contract with American Fast Freight. We therefore reverse the grant of summary judgment on the special employment relationship.

B. Material Factual Disputes Precluded Summary Judgment On The Question Whether Buckley's Injury Happened In The Course And Scope Of Employment.

Buckley filed a cross-motion for summary judgment, arguing that the injury did not occur in the course and scope of his employment with American Fast Freight. Based in part on factual concessions American Fast Freight made for purposes of the summary judgment motion only, the superior court decided as a matter of law that the injury arose in the course and scope of Buckley's employment with American Fast Freight.

Buckley argues that under Estate of Milos v. Quality Asphalt Paving, Inc. there is a material factual dispute about whether the accident happened in the course and scope of employment. He points to the following facts to support his argument: (1) he was on an unpaid lunch break; (2) he was motivated to help his friends (the other truck drivers); and (3) because the workers were violating company policy and the conditions of service agreement between Labor Ready and American Fast Freight at the time of the accident, their actions should not be considered to be in the course of their employment.

American Fast Freight maintains that it met the summary judgment standard and there is no material factual dispute. It contends that Buckley's "clock status," i.e. whether he was on or off shift, was irrelevant because other factual circumstances tied his activities at the time of the accident to work with American Fast Freight: the accident occurred in the middle of the work shift, on a lunch break, and at a location that should be considered a job site because of the nature of the work. American Fast Freight argues that the activity Buckley engaged in was work-related, not purely personal, and benefitted American Fast Freight. It also asserts that the activity that caused the accident was reasonably foreseeable.

The parties agree Estate of Milos governs this case. In that case we reversed a summary judgment determining that an employee's death occurred in the course and scope of his employment. We considered the definition of "arising out of and in the course of employment" in AS 23.30.395 and also identified the following factors from our precedent as being relevant to work-relatedness: (1) "whether 'the accidental injury or death is connected with any of the incidents of one's employment' "; (2) "whether the employee's activity is 'reasonably contemplated and foreseeable by the employment situation' "; and (3) "whether the activity benefits the employer in some way."

Although our discussion in Estate of Milos focused on the employee's clock status at the time of the accident, we also considered the nexus between the activity that caused his death and his work. The accident in Estate of Milos happened at a work site when an employee rode an employer-owned ATV to the top of a gravel pile underneath a live power line; his head contacted the power line, and he was electrocuted. The parties in Estate of Milos principally disputed whether the possibility that the worker was "off-shift" at the time of the accident precluded summary judgment. But three supervisors testified that the employee's use of the ATV was unauthorized - including one who said he would have fired the employee for using it - so we also discussed the impact of the decedent's unauthorized use of the ATV on the question of work-relationship.

Like Estate of Milos , this case raises questions about clock status and violations of work rules. And as in Estate of Milos , the superior court broadly construed our precedent and determined that the work-relatedness of the accident made contested issues immaterial. We did not need to decide in Estate of Milos whether the unauthorized use of the ATV alone would have taken the accident outside of the Act's coverage because we inferred that the estate conceded that "lack of authorization ... alone" would not do so. And the employer agreed there was a genuine factual dispute about whether it authorized the ATV's use.

Turning to Buckley's case, we agree with American Fast Freight that Buckley's being on an unpaid lunch break does not determine whether the injury arose in the course and scope of employment. In Estate of Milos we agreed with the employer that an arbitrary line "making all post-shift accidents noncompensable" was undesirable. And we looked at the "sensible compromise" in Larson's treatise, which considers whether the employee's activities that led to the injury are " 'necessary' or 'reasonably incidental' to [his] work." Under this rule, the conceded fact that Buckley was on an unpaid lunch break does not take the accident outside the course and scope of employment. Larson's treatise indicates that lunchtime injuries occurring at a work site generally are compensable because the "course of employment should extend to any injury which occurred at a point where the employee was within range of dangers associated with the employment." Buckley's work at American Fast Freight on the day of the injury necessarily took him outside of the warehouse, so his work site included the locations to which he accompanied Hawkins. The accident happened at such a location, so his clock status was largely irrelevant.

Buckley's activities at the work site, however, are not so easily classified as immaterial to the Act's coverage. In Estate of Milos we discussed both the statutory definition of "arising out of and in the course of employment" and factors we had applied in earlier cases related to this definition when discussing whether there was a "sufficient nexus" between the employee's actions and his employment. Here the superior court looked at the factors from Estate of Milos but did not separately consider the underlying statutory definition. The factors complement the definition rather than displace it; we focused on them in Estate of Milos because we determined that the statutory definition "provide[d] little guidance" in resolving the question of work-relationship because of a permissible inference that the activity had not been sanctioned by the employer.

Under AS 23.30.395(2), "arising out of and in the course of employment" includes "activities performed at the direction or under the control of the employer" and "employer-sanctioned activities at employer-provided facilities." We have construed the statute broadly, as the superior court noted, but we have never addressed the question confronting us here: does an injury that happens when a worker engages in an expressly prohibited activity fall within the statutory definition of "arising out of and in the course of employment" as a matter of law? The superior court decided it was immaterial that Buckley's activities violated the contract between American Fast Freight and Labor Ready. It also deemed immaterial American Fast Freight's representations to AKOSH investigators both that Buckley's duties were "limited to loading and stacking boxes and sweeping [the] floor" and that "no one but [a] driver is allowed to put chains on." But those facts and the reasonable inferences that can be drawn from them are material to the question of work-relationship.

Our discussion in Estate of Milos suggests the outcome we reach here. In Estate of Milos the employer argued that the worker's death arose out of and in the course of his employment as a matter of law, but we questioned whether the employee's actions could meet either part of the statutory definition as a matter of law. As we said there, for an activity to fall within the statutory category of "activities performed at the direction or under the control of the employer," "the activity must, at a minimum, be authorized by the employer." Similarly, the other statutory category - "employer sanctioned activities" - presupposes that the employer allowed the activity. We cannot see how an activity that is expressly prohibited can as a matter of law fall within either category.

The superior court based its decision on its understanding of our precedent. But the cases the superior court cited involved work activities that were not expressly prohibited even if those activities were not part of the employee's regular job duties. In those cases we considered whether the activity the employee engaged in was "reasonably contemplated and foreseeable by the employment situation." For example, in applying the "remote site" doctrine, we decided that an employee's trip to town to negotiate a paycheck was reasonably foreseeable and that an injury that happened while en route was thus compensable. In Witmer v. Kellen , a case discussed by the superior court here, we decided that a car trip taken by William Witmer, the owner and sole shareholder of a corporation, with an employee of his corporation was work-related as a matter of law, despite Witmer's contention that the trip had no business purpose. We said that Witmer's "position as president and sole shareholder ... cannot be ignored" and observed that he had "a great deal of flexibility and discretion regarding his daily activities." In fact, we noted that as the employer Witmer "presumably ha[d] the sole authority to define or control his daily activities." In neither case was the employee's activity expressly prohibited by contract or otherwise.

American Fast Freight asks us to adopt a "modern rule" from Larson's treatise on workers' compensation that brings within workers' compensation coverage "any activity undertaken in good faith by one employee to assist a co-employee in the latter's performance of his work." The superior court quoted and applied this rule in deciding that Buckley's injury arose out of and in the course of employment as a matter of law. But Larson's treatise indicates that when an employee undertakes an action "outside his regular duties [that] is positively prohibited, it will probably be held to be outside the course of employment even if designed to advance the employer's work."

American Fast Freight characterizes Buckley's activities as merely "mov[ing] outside his regular job duties to assist a co-worker." But there is a difference between performing work outside one's regular duties and engaging in actions that are specifically prohibited by an employer. Larson's treatise provides a number of examples and exceptions to the general rule, and it distinguishes between violations of rules that "define the ultimate 'thing' which the claimant is employed to do" and violations of those that "describe the methods which [a claimant] may or may not employ in accomplishing that ultimate 'thing.' " Only those actions encompassed in the first category are with any consistency considered outside the scope of workers' compensation.

The distinction Larson's treatise makes is an important one. American Fast Freight argues that the Act "establish[es] a reciprocal relationship between an employer and employee" and that allowing employers and employees to avoid the Act "by claiming that a term of the employment contract was breached would invite frequent litigation," undermining the purposes of the Act. Deviations from work rules that result in injuries may still occur within the course of employment, but the broad rule urged by American Fast Freight that completely disregards the extent of the employee's departure from his duties is contrary to the statutory definition in AS 23.30.395(2), which requires a nexus between the terms of the employment and the activity resulting in the injury.

Here American Fast Freight conceded for purposes of summary judgment only that the activity leading to Buckley's injury was prohibited by the contract between American Fast Freight and Labor Ready because it involved operating dangerous machinery. Furthermore American Fast Freight's representations to AKOSH that Buckley's job duties were "limited to loading and stacking boxes and sweeping [the] floor" and that "no one but [a] driver is allowed to put chains on" permit the inference that Buckley's activities were expressly not allowed. The superior court decided that the injury was reasonably foreseeable, but our precedent requires consideration of whether the activity leading to the injury was reasonably foreseeable. Thus the question here is whether Buckley's participation in laying tire chains was reasonably foreseeable given the prohibition in the contract and American Fast Freight's apparent rule that only drivers could use chains.

We recognize that American Fast Freight might have benefitted from the workers' actions had the accident not happened and had they freed Carroll's truck, but we cannot disregard an employer's interest in exercising some control over its employees' activities. We are unable to adopt a rule of law that brings expressly prohibited activities within the statutory definition of "arising out of and in the course of employment." There may be factual situations that could bring this type of action within the scope of the Act - Larson's treatise summarizes cases illustrating the fine lines courts have drawn between rules about duties and rules about methods - and it is certainly possible that as a matter of fact Buckley's injury was not a violation of the contract or was otherwise sanctioned by his employer. But because we are reviewing a ruling on summary judgment that was granted on conceded facts, we must assume that the actions leading to the injury were prohibited. We hold that such actions are not as a matter of law within the Act's scope.

V. CONCLUSION

We REVERSE the grant of summary judgment to American Fast Freight and REMAND the case to the trial court for further proceedings consistent with this opinion.

      AS 23.30.001 -.400.

      The sequence of phone calls was disputed by the participants in this accident, as was American Fast Freight's knowledge of Carroll's problem. This case is unusual in that the superior court granted summary judgment to American Fast Freight on both its motion for summary judgment and Buckley's cross-motion for summary judgment. See note 9, infra . We review all facts in the light most favorable to Buckley as the non-prevailing party on both motions. See Rockstad v. Erikson , 113 P.3d 1215, 1222 n.19 (Alaska 2005) ("Reviewing a grant of summary judgment, this court views all facts in the light most favorable to the non-prevailing party , not the non-moving party." (emphasis in original) (citing Ellis v. City of Valdez , 686 P.2d 700, 702 (Alaska 1984) )).

      A diagram made by Hawkins shortly after the accident indicates that the rear driver-side drive wheel of Carroll's tractor was stuck.

      9 P.3d 1013 (Alaska 2000).

      For Buckley's lawsuit to be barred under AS 23.30.055, American Fast Freight must have been his employer and the injury must have arisen out of and in the course of the employment. See AS 23.30.010(a), .045, .055.

      145 P.3d 533 (Alaska 2006).

      Tuboscope Vetco, Inc. , 9 P.3d at 1017.

      145 P.3d at 537-41.

      The superior court wrote that it granted American Fast Freight's summary judgment motion and denied Buckley's cross-motion. But the court in fact also granted summary judgment to American Fast Freight on the issue presented in Buckley's cross-motion for summary judgment, whether the injury arose out of and in the course of the employment. Rather than proceeding to trial on the issue raised in Buckley's motion - the more common result of denial of summary judgment - the court dismissed the case and ordered American Fast Freight to file a proposed final judgment.

      Estate of Milos , 145 P.3d at 536.

      Mitchell v. Teck Cominco Alaska Inc. , 193 P.3d 751, 757 (Alaska 2008).

      Id. at 760 n.25.

      Christensen v. Alaska Sales &Serv., Inc. , 335 P.3d 514, 517 (Alaska 2014) (quoting State, Dep't of Highways v. Green , 586 P.2d 595, 606 n.32 (Alaska 1978) ).

      Id. at 519.

      Estate of Milos , 145 P.3d at 537.

      Nickels v. Napolilli , 29 P.3d 242, 247 (Alaska 2001).

      9 P.3d 1013, 1017 (Alaska 2000).

      Id. (quoting 3 Arthur Larson & Lex K. Larson, Larson's Workers' Compensation Law § 48.00, at 8-434 (1997)).

      Id.

      Id.

      892 P.2d 164, 168 (Alaska 1995).

      Childs v. Kalgin Island Lodge , 779 P.2d 310, 314 (Alaska 1989).

      Id. (quoting 9 W. Jaeger, Williston on Contracts § 1012, at 4-5 (3d ed. 1967)).

      Cluff , 892 P.2d at 172.

      Id. (quoting 1B Arthur Larson , The Law of Workmen's Compensation §§ 48.11 to 48.12, at 8-440 (1992)).

      We disagree with American Fast Freight's contention that "Buckley waived the right to claim on appeal that there were disputed facts." Buckley argued that Tuboscope was factually distinguishable from his case because, among other reasons, Buckley did not report directly to American Fast Freight. He also contended that the special employment doctrine should not apply to his case. Whether these arguments are viewed as a dispute about material facts or the legal conclusions to be drawn from the facts, we consider the point adequately preserved. Furthermore the party moving for summary judgment must provide sufficient admissible evidence to establish its right to judgment as a matter of law; it is only when the moving party makes this showing that the nonmoving party must provide evidence to show a factual dispute. See Christensen v. Alaska Sales & Serv., Inc. , 335 P.3d 514, 517 (Alaska 2014).

      Anderson v. Tuboscope Vetco, Inc. , 9 P.3d 1013, 1015 (Alaska 2000).

      Id.

      Id. at 1016.

      Id. at 1017-19.

      Id. at 1018.

      Id.

      See id. at 1015, 1018 (noting that injured worker "was recruited, interviewed, and placed in his position by Tuboscope").

      Buckley raised this issue in the superior court, arguing in his opposition to summary judgment that he "did not report directly to [American Fast Freight] ... and was still subject to assignment to other entities that contracted with Labor Ready."

      "Hire" means "[t]o engage the labor or services of another for wages or other payment." Hire , Black's Law Dictionary (10th ed. 2014).

      "Fire" means "[t]o discharge or dismiss a person from employment; to terminate as an employee." Fire , Black's Law Dictionary (10th ed. 2014).

      The superior court cited generally to Buckley's deposition testimony, including testimony about a "rumor," which Buckley could not verify, that some Labor Ready employees "got picked up at the job site they were on" and sent home. In this part of the deposition, Buckley also repeated statements made to him by a truck driver for American Fast Freight.

      Tuboscope Vetco, Inc. , 9 P.3d at 1015.

      For purposes of summary judgment only, American Fast Freight conceded the following: Buckley's injuries resulted in part from negligence on the part of American Fast Freight and its employees; Carroll and Hawkins violated company rules when they tried to free the truck on their own and when they allowed Buckley to help; allowing Buckley to use tire chains violated the contract between American Fast Freight and Labor Ready because it involved operating dangerous equipment; and Buckley and Hawkins were on an unpaid lunch break at the time of the accident.

      145 P.3d 533 (Alaska 2006).

      Id. at 541.

      In relevant part, AS 23.30.395(2) defines "arising out of and in the course of employment" as including "activities performed at the direction or under the control of the employer; and employer-sanctioned activities at employer-provided facilities; but excludes ... activities of a personal nature away from employer-provided facilities."

      Estate of Milos , 145 P.3d at 538 (quoting M-K Rivers v. Schleifman , 599 P.2d 132, 134-35 (Alaska 1979) ).

      Id. (quoting M-K Rivers , 599 P.2d at 136 ).

      Id. (citing Luth v. Rogers & Babler Constr. Co. , 507 P.2d 761 (Alaska 1973) ).

      Id. at 539-41.

      Id. at 535.

      Id. at 537.

      Id. at 535, 538-40.

      See id. at 536 (noting that superior court determined estate's factual contentions were immaterial because of strong relationship between employer's actions and worker's accident).

      Id. at 538 n.11.

      Id. at 539 n.16.

      Id. at 540.

      Id. (quoting 2 Arthur Larson & Lex Larson, Larson's Workers' Compensation Law § 21.06[1][a] (2005)).

      2 Arthur Larson et al., Larson's Workers' Compensation Law 13-1 (2018); see id. §§ 13.01[5], 13.05 (providing explanation of work-relationship of accidents happening on unpaid lunch breaks and reasons for applying same rules to lunch breaks as those that apply to time before and after work).

      145 P.3d at 538-39, 541 (quoting AS 23.30.395(2) ).

      Id. at 538-39.

      Id. at 538-39.

      Id. at 539 n.16.

      M-K Rivers v. Schleifman , 599 P.2d 132, 136 (Alaska 1979).

      Id. at 134-36.

      884 P.2d 662, 666-67 (Alaska 1994).

      Id. at 666.

      Id.

      3 Larson , supra note 55, § 27.01[1], at 27-2.

      Id. § 27.01[4], at 27-6; see also id. § 33.01[4][a], at 33-7 (observing that modern rule that brings work done outside regular duties within compensation coverage "assumes that no prohibition is thereby infringed").

      Id. §§ 27.01[4], 33.01[4], 33.02[1].

      Id. § 33.02[1], at 33-10; see also Merchant v. Pinkerton's Inc. , 50 N.Y.2d 492, 429 N.Y.S.2d 598, 407 N.E.2d 443, 445 (1980) (distinguishing between "rule defin[ing] what the employee's duties are" and one defining "how those duties are to be performed").

      3 Larson , supra note 55, § 33.01[4], at 33-7.

      See Estate of Milos v. Quality Asphalt Paving, Inc. , 145 P.3d 533, 538 (Alaska 2006) ; M-K Rivers v. Schleifman , 599 P.2d 132, 136 (Alaska 1979) ; Marsh v. Alaska Workmen's Comp. Bd. , 584 P.2d 1134, 1136 (Alaska 1978).

      3 Larson , supra note 55, §§ 27.01[4], 33.01[4], 33.02[1].


source: Caselaw Access Project

author: MAASSEN, Justice.

license: Public Domain

text:
    STATE of Alaska, Petitioner, v. Teila V. TOFELOGO, Respondent.
    Supreme Court No. S-16931
    Supreme Court of Alaska.
    June 28, 2019
    Diane L. Wendlandt, Assistant Attorney General, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for Petitioner.
    Emily Jura, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for Respondent.
    Before: Bolger, Chief Justice, Winfree, Stowers, Maassen, and Carney, Justices.
   MAASSEN, Justice.

I. INTRODUCTION

A man accidentally killed his roommate with a large knife while demonstrating martial arts moves. He pled guilty to criminally negligent homicide and stipulated to the applicability of a statutory aggravator that allows sentencing above the upper range when a crime is "committed against ... a member of the social unit made up of those living together in the same dwelling as the defendant." On appeal of the sentence, the defendant argued that the aggravator was inappropriate in the context of his case. The court of appeals agreed, concluding that the aggravator is limited to cases in which the defendant's conduct was specifically directed at the victim and had some source in the relationship between the victim and the defendant.

We granted the State of Alaska's petition for hearing. Because we conclude that the aggravator applies to the facts of this case and the sentencing court was not clearly mistaken in giving it some weight, we reverse the decision of the court of appeals.

II. FACTS AND PROCEEDINGS

Teila Tofelogo lived in a group home that provided a sober living environment for men in recovery. According to the later findings by the sentencing court, on an afternoon in November 2016 Tofelogo was "horseplaying" with what he called a "ninja knife," swinging it around while his roommate, Dennis Fathke, sat on a bed behind him. Tofelogo failed to notice when Fathke stood up and came closer, and, while making a turn with the knife, Tofelogo accidentally stabbed Fathke through the bicep and into his chest. Tofelogo summoned help and attempted to administer first aid, but Fathke died soon afterward.

Tofelogo pled guilty to criminally negligent homicide and stipulated to the applicability of AS 12.55.155(c)(18)(A), an aggravating factor that allows sentencing above the presumptive range if "the offense was a felony ... specified in AS 11.41 ['Offenses Against the Person'] and was committed against a spouse, a former spouse, or a member of the social unit made up of those living together in the same dwelling as the defendant." Tofelogo argued, however, that the aggravator should be given "little to no weight" because his conduct did "not fall into the pattern of abusive and threatening conduct typified in a domestic violence case."

The superior court sentenced Tofelogo to six years imprisonment with four suspended; the composite sentence, including the suspended time, was above the presumptive term of one to three years for first-felony negligent homicide. The increased sentence was allowed by the applicability of the aggravator, which raised the upper limit to ten years. The court said it was giving the aggravator "some weight" but "not a tremendous, [not] a lot of weight." The court noted the prevalence of domestic violence in the community, the state, and "the whole world," observing that it involves not just intra-family violence but "also includes people who are living together such as here." The court said that it would have given the factor much more weight if the offense had occurred in a more typical domestic setting - "if this offense had been committed by the defendant against his spouse, his girlfriend, his own parents, [or] his children." But despite the lack of a family relationship, the court declined to give the factor no weight at all; the court cited a "right to feel safe and secure in our own homes without someone who is living amongst us hurting us or killing us, and it doesn't have to necessarily be someone that we're related to."

Tofelogo appealed his sentence to the court of appeals, arguing, as relevant here, that aggravator (c)(18)(A) was inappropriate in the context of his case. The court of appeals agreed, reasoning that the aggravator was intended to apply to crimes of domestic violence in which "the identity of the victim and the victim's relationship to the defendant [bear on] the blameworthiness of the defendant's conduct or the defendant's degree of dangerousness." Concluding that Tofelogo's crime was not the kind the aggravator was intended to address, the court of appeals held that the sentencing court erred in giving the factor any weight at all.

The State petitioned for hearing, and we granted review.

III. STANDARDS OF REVIEW

"The existence or non-existence of an aggravating or mitigating factor is a mixed question of law and fact." Determining whether the factor applies "involves a two-step process: the court must (1) assess the nature of the defendant's conduct, a factual finding, and then (2) make the legal determination of whether that conduct falls within the statutory standard." "Any factual findings made by the court regarding the nature of the defendant's conduct are reviewed for clear error, but whether those facts establish that the conduct" falls within the factor's ambit "is a legal question." In interpreting the scope of an aggravating factor, we apply our independent judgment, interpreting the statute "according to reason, practicality, and common sense, considering the meaning of the statute's language, its legislative history, and its purpose."

If a factor is found to apply, the amount of weight to give it is committed to the sentencing court's discretion. "[W]hen the issue is one of sentencing discretion - whether and how much a defendant's sentence should be adjusted on account of an aggravating or mitigating factor - we will employ the 'clearly mistaken' standard of review." Under this standard "the sentence will be modified only in those instances where the reviewing court is convinced that the sentencing court was clearly mistaken in imposing a particular sentence." In making such a determination, we independently review the record.

IV. DISCUSSION

A. Aggravator (c)(18)(A) By Its Plain Language Applies To Tofelogo's Crime.

Alaska Statute 12.55.155(c) lists factors that "shall be considered by the sentencing court if proven in accordance with this section" and that "may allow imposition of a sentence above the presumptive range set out in AS 12.55.125." These so-called aggravators include the one central to this appeal: "the offense was a felony ... specified in AS 11.41 ['Offenses Against the Person'] and was committed against a spouse, a former spouse, or a member of the social unit made up of those living together in the same dwelling as the defendant." Tofelogo stipulated to the applicability of this factor in his plea agreement, and by its terms it appears to apply. Tofelogo agreed to plead guilty to criminally negligent homicide, a felony "specified in AS 11.41"; moreover, the crime "was committed against" his roommate, ostensibly "a member of the social unit made up of those living together in the same dwelling as the defendant." The superior court gave this stipulated factor "some weight" in sentencing.

For the reasons that follow, we conclude that the superior court correctly applied the aggravator to the facts of this case, and that the weight the court gave the aggravator did not result in a sentence that is clearly mistaken.

B. The Court Of Appeals Rejected A Literal Reading Of Aggravator (c)(18)(A).

The court of appeals agreed that "Tofelogo's case falls within the literal wording of aggravator (c)(18)(A)." It nevertheless concluded that "the rationale of this aggravator does not apply to the facts of Tofelogo's case, and the sentencing judge should not have given the aggravator any weight." The court began its analysis by stating that "[t]he crimes covered by aggravator (c)(18)(A) are a subset of the larger category of 'crimes involving domestic violence' - the category of offenses defined by AS 18.66.990(3) and (5)." The court determined that the aggravator was therefore "based on the same rationale that prompted the legislature to enact the definition of 'crime involving domestic violence': the policy of altering various provisions of law to facilitate the prosecution and punishment of crimes that occur between people who are involved with or related to each other in specified ways."

The court of appeals then discussed past decisions in which, analyzing the definition of "crime involving domestic violence," it had "pointed out that the literal wording of this definition encompasses more situations than the legislature intended - situations where it does not make any sense to treat a crime differently based on the relationship between the defendant and the victim." The court cited both Carpentino v. State and Bingaman v. State , in which it had explained that the legislature's broad definition of "domestic violence," if read "literally, ... would cover many instances where the specified relationship between the defendant and the victim is irrelevant to assessing whether the defendant is atypically dangerous or whether the defendant's conduct is atypically blameworthy." The court posed hypotheticals showing the definition's potential overbreadth: for example, an automobile accident that is categorized as a crime of domestic violence only because the victim, by chance, happens to fall under the broad definition of "household members" (the victim in the example is "the child of a former high school sweetheart"). The court concluded that such a result would contravene the "social policy underlying" the (c)(18)(A) aggravator: "to authorize courts to impose more severe sentences on defendants whose relationship to their victim makes the crime more blameworthy ," e.g., spouses and former spouses. Referring to the aggravator's additional inclusion of "a member of the social unit made of those living together in the same dwelling as the defendant," the court cautioned that if it were "[i]nterpreted literally," it "would apply to a defendant who was convicted of felony assault for causing a traffic accident that resulted in injuries to other people" who included, "by chance, ... the defendant's former spouse, or ... another resident of the defendant's dormitory or barracks." In such a case, the court reasoned, "the rationale behind aggravator (c)(18)(A) does not apply - because the identity of the victim and the victim's relationship to the defendant have essentially no bearing on the blameworthiness of the defendant's conduct or the defendant's degree of dangerousness."

Summarizing, the court of appeals cited its earlier observation that "the 'hallmark' of domestic violence is conduct whose purpose is 'to coerce, control, punish, intimidate, or exact revenge within the context of an intimate relationship .' " Crimes of domestic violence "are all implicitly premised on the assumptions that the defendant's conduct was directed at the victim, and that [their relationship] provided a motivation for the crime, or ... made the victim more vulnerable, or ... was otherwise a significant contributing factor in the crime." Concluding that these "assumptions do not apply to Tofelogo's case," the court held that "the sentencing judge should not have given the aggravator any weight."

C. The Plain Language Of Aggravator (c)(18)(A) Shows A Reasonable Purpose Not Contradicted By Legislative History.

Our disagreement with the court of appeals centers on its conclusion that aggravator (c)(18)(A) cannot be interpreted literally consistent with its purpose. We begin with the statutory language itself; we agree with the court of appeals that read literally it applies to Tofelogo's case. As for the statute's purpose, the language reasonably implies a legislative intent to make more blameworthy crimes committed against not only spouses and former spouses but also persons in their own living spaces - where they may legitimately have a heightened expectation of safety and security, especially with regard to danger from members of their own "social unit." Such a purpose - grounded in the language the legislature chose to use - is reasonable in and of itself. Finding a reasonable purpose does not require us to add implicit requirements such as those the court of appeals read into the aggravator: that the defendant and the victim also share a special, intimate, spouse-like relationship, and that the crime arose out of that relationship. In fact, as the State points out, the court of appeals has in the past affirmed sentencing courts' application of aggravator (c)(18)(A) to living situations that did not have those characteristics.

We follow a "sliding scale approach to statutory interpretation, in which 'the plainer the statutory language is, the more convincing the evidence of contrary legislative purpose or intent must be.' " To support the court of appeals' interpretation of (c)(18)(A), Tofelogo cites the legislative commentary that accompanied the aggravator's passage. The legislature noted that the factor

is applicable to crimes involving domestic violence. Its scope is restricted to crimes against the person (AS 11.41) directed against a spouse, a former spouse or a member of the social unit comprised of those living together in the same dwelling as the defendant. Its addition reflects a legislative determination that crimes against the person involving domestic violence represent one of the more serious criminal justice problems in Alaska.[ ]

According to Tofelogo, this language evinces a legislative intent that the aggravator "be 'restricted' to violent crimes that are 'directed against' a spouse/former spouse or someone with whom the defendant lives, and that 'involve domestic violence.' " But we read the commentary as simply paraphrasing the aggravator's language, not narrowing its literal scope by a deliberate choice of slightly different words (e.g., "crimes ... directed against" the victim as opposed to crimes "committed against" the victim). Tofelogo advances no other legislative history to support his interpretation of (c)(18)(A), and the court of appeals cited none. The legislative history does not convince us that the aggravator should be read other than literally.

D. The Breadth Of Aggravator (c)(18)(A) Allows The Sentencing Court To Consider The Parties' Relationship When Weighing The Factor.

The (c)(18)(A) aggravator preexisted AS 18.66.990(3) 's definition of "crimes involving domestic violence" to include crimes "committed against a 'household member.' " However, we agree with the court of appeals that the crimes covered by (c)(18)(A) are functionally a "subset" of those covered by the later definition, at least in the sense that the aggravator applies to fewer crimes than those covered by the definition and any crime included in the aggravator necessarily falls within the definition as well. "Household member" is broadly defined, including such categories as "adults or minors who live together or who have lived together," "adults or minors who are dating or who have dated," and "adults or minors who are related to each other up to the fourth degree of consanguinity." The court of appeals has consistently held this definition to be broader than necessary to effectuate the domestic violence statutes' underlying rationale, and for that reason it has decided that some situations technically covered - such as criminally negligent conduct that impacts relatives only by chance - should not be treated as crimes of domestic violence for purposes such as limiting a defendant's ability while on bail to return to a home shared with the victim or requiring batterer's intervention treatment.

But we disagree that aggravator (c)(18)(A) is overbroad as applied to Tofelogo's case. The statute provides that an aggravator, if proven, "shall be considered by the sentencing court" and "may allow imposition of a sentence above the presumptive range." A finding that an aggravator applies does not dictate the aggravator's weight. Once the sentencing court has concluded that the facts bring the case within the aggravator's literal language, the weight the court gives the aggravator is a matter of discretion. If the court finds, for example, that it was purely a matter of chance that the defendant and the victim were members of the same social unit "living together in the same dwelling," it may give the aggravator less weight than it would have if the defendant had directed the crime against an intimate partner for purposes of intimidation or coercion.

Take the example given by the court of appeals, in which a defendant "was convicted of felony assault for causing a traffic accident that resulted in injuries to other people[,]" including, "by chance, ... the defendant's former spouse, or ... another resident of the defendant's dormitory or barracks." If these facts are proven, the court should consider the aggravator because by its plain language it applies; under the circumstances, however, the court may decide to give the aggravator little weight because, in the court of appeals' words, "the identity of the victim and the victim's relationship to the defendant have essentially no bearing on the blameworthiness of the defendant's conduct or the defendant's degree of dangerousness." The tenuousness of the relationship goes to the weight of the aggravator, but it does not allow a court to ignore the aggravator's plain language in determining whether it applies.

E. The Sentencing Court Was Not Clearly Mistaken In Giving Aggravator (c)(18)(A) Some Weight.

The sentencing court discussed the basis for aggravator (c)(18)(A), noting the prevalence of domestic violence in society but observing that such crimes are not limited to family members: "It also includes people who are living together such as here." While emphasizing the "right to feel safe and secure in our own homes without someone who is living amongst us hurting us or killing us," the court differentiated Tofelogo's situation from one involving a spouse, girlfriend, or other family member; in such a case, the court said, it "wouldn't have batted an eye to give [Tofelogo] most of" the allowable maximum. In short, the court explicitly recognized the applicability of the factor, acknowledged that the circumstances were not those of the typical domestic violence crime (where the factor might apply more forcefully), and because of the parties' relationship gave the factor only "some weight," "not a tremendous [amount] of weight." The court sentenced Tofelogo to six years (with two to serve), three years above the presumptive range for a first-felony, criminally negligent homicide, but well below the allowable ten-year maximum.

This sentence was supported by the record. As the sentencing court noted, Tofelogo was swinging a very sharp, 12-inch-long knife in close proximity to Fathke, his roommate, in an enclosed, shared living space. Tofelogo specifically acknowledged the risk, whether jokingly or not; he reportedly told Fathke, "I'm a killer, dude. You got to watch out." There is no indication that Fathke desired this interaction: he was lying on his bed and stood up just before he was stabbed. Regardless of Tofelogo's intent, his willingness to engage in this dangerous and intimidating behavior may certainly be read as implicating the aggravating factor's purpose.

Given the court's reasoned consideration of the aggravator's purpose, its applicability to the facts of this case, and the resulting sentence well within permissible bounds, we cannot say that the sentence was clearly mistaken.

F. A Remand Is Necessary For Consideration Of Tofelogo's Other Sentencing Issue On Appeal.

Tofelogo appealed not only the sentencing court's application of aggravator (c)(18)(A), but two other issues as well: (1) the sentencing court's rejection of the proposed "least serious" mitigator, which the court of appeals affirmed, and (2) the sentencing court's decision to give "unjustified weight to Tofelogo's prior criminal history," which the court of appeals did not reach "[g]iven the fact that Tofelogo must be re-sentenced," and "Tofelogo's attorney [could] address this matter at the resentencing." Our disposition of the petition would reinstate and affirm the sentence imposed by the superior court, except that the "prior criminal history" issue remains undecided and may affect the sentence. We must therefore remand to the court of appeals for its further consideration of that issue. Depending on its resolution of that issue, the court of appeals may then either remand to the superior court for re-sentencing consistent with this opinion or reinstate and affirm the sentence.

V. CONCLUSION

We REVERSE the decision of the court of appeals and REMAND for consideration of the "prior criminal history" issue.

      AS 12.55.155(c)(18)(A).

      Tofelogo v. State , 408 P.3d 1215, 1216-20 (Alaska App. 2017).

      See AS 12.55.125(d)(2)(B) (providing for presumptive term of one to three years "if the offense is a first felony conviction, the defendant violated AS 11.41.130, and the victim was ... 16 years of age or older").

      See AS 12.55.125(d) (providing that "a defendant convicted of a class B felony may be sentenced to a definite term of imprisonment of not more than 10 years"); AS 12.55.155(a)(1) (providing that if "the low end of the presumptive range is four years or less, the court ... may increase the active term of imprisonment up to the maximum term of imprisonment for factors in aggravation").

      See Tofelogo , 408 P.3d at 1216. Tofelogo also argued that the sentencing court erred by relying on his prior criminal history, but the court of appeals did not reach that issue and it is not before us on the State's petition. See id. at 1220.

      Id. at 1219.

      Id . at 1220.

      Michael v. State , 115 P.3d 517, 519 (Alaska 2005).

      Id.

      Id.

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

      See, e.g. , Woods v. State , 667 P.2d 184, 188 (Alaska 1983) ("The weight to be assigned to this aggravating factor is a question which is committed to the sentencing court's discretion.").

      Lepley v. State , 807 P.2d 1095, 1099 n.1 (Alaska App. 1991).

      McClain v. State , 519 P.2d 811, 813-14 (Alaska 1974) ; see also State v. Wentz , 805 P.2d 962, 964-68 (Alaska 1991) ("[T]he sentence imposed by the trial court may be reversed only where the appellate court, after independent review of the record, 'is convinced that the sentencing court was clearly mistaken in imposing a particular sentence.' " (quoting State v. Graybill , 695 P.2d 725, 729 (Alaska 1985) )).

      McClain , 519 P.2d at 813.

      AS 12.55.155(f) sets out the procedure by which the State is required to present a listed factor for the sentencing court's consideration.

      AS 12.55.155(c)(18)(A).

      AS 11.41.130 defines criminally negligent homicide and classifies it as a class B felony.

      See AS 12.55.155(c)(18)(A).

      Tofelogo v. State , 408 P.3d 1215, 1220 (Alaska App. 2017).

      Id.

      Id. at 1217.

      Id.

      Id.

      42 P.3d 1137 (Alaska App. 2002) (opinion on rehearing).

      76 P.3d 398 (Alaska App. 2003).

      Tofelogo , 408 P.3d at 1217-18.

      Id. at 1218 (quoting Bingaman , 76 P.3d at 412 ).

      Id. at 1219 (emphasis added).

      Id. (quoting AS 12.55.155(c)(18)(A) ).

      Id.

      Id. (emphasis added) (quoting Bates v. State , 258 P.3d 851, 862 (Alaska App. 2011).

      Id. at 1219-20.

      Id. at 1220.

      See id.

      The State cites several cases recognizing "the added seriousness when an offense is committed in the victim's home," including Amarok v. State , 789 P.2d 377, 380 (Alaska App. 1990) (observing that while sexual assault was a "serious threat to [the victim's] personal safety and personal privacy[,] ... [the accompanying] burglary violated [the] victim's significant and distinctly different right to privacy in her own home, thereby resulting in incrementally greater harm").

      The sentencing court recognized this as the "right to feel safe and secure in our own homes without someone who is living amongst us hurting us or killing us."

      Tofelogo , 408 P.3d at 1219.

      See, e.g. , Pruett v. State , 742 P.2d 257, 259, 262 (Alaska App. 1987), (rejecting argument that social unit "factor should be limited to spouses and children" and affirming sentencing court's application of it to defendant's abuse of her live-in housekeeper), overruled on other grounds by State v. Wentz , 805 P.2d 962 (Alaska 1991) ; Komakhuk v. State , 719 P.2d 1045, 1046, 1048 (Alaska App. 1986) (holding that sentencing judge "did not abuse his discretion in finding that AS 12.55.155(c)(18) covers a living situation such as" that of defendant who shot his two adult housemates).

      Adamson v. Municipality of Anchorage , 333 P.3d 5, 11 (Alaska 2014) (quoting McDonnell v. State Farm Mut. Auto. Ins. Co. , 299 P.3d 715, 721 (Alaska 2013) ).

      Senate Journal Supp. No. 44 at 25, 1980 Senate Journal 1418; House Journal Supp. No. 79 at 26, 1980 House Journal 1749.

      Aggravating factor (c)(18)(A) was first codified in 1980. See Ch. 102, §§ 39-41, SLA 1980. The definition of "crimes involving domestic violence" was codified in 1996. See Ch. 64, § 33, SLA 1996.

      See Tofelogo , 408 P.3d at 1217 (citing AS 18.66.990(5)(A) and (B) ).

      AS 18.66.990(5)(B), (C), (E).

      See, e.g. , Bingaman v. State , 76 P.3d 398, 407-12 (Alaska App. 2003) ; Carpentino v. State , 42 P.3d 1137, 1140-41 (Alaska App. 2002).

      See Tofelogo , 408 P.3d at 1218-19 (citing Williams v. State , 151 P.3d 460, 467-68 (Alaska App. 2006) ).

      See id. at 1219 (citing Cooper v. District Court , 133 P.3d 692, 707 (Alaska App. 2006) ).

      AS 12.55.155(c) (emphasis added).

      See , e.g. , Woods v. State , 667 P.2d 184, 188 (Alaska 1983) ; Lepley v. State , 807 P.2d 1095, 1099 n.1 (Alaska App. 1991).

      Tofelogo , 408 P.3d at 1219 (citing AS 11.41.220(a)(1)(B) ).

      Id.

      See AS 12.55.125(d).

      AS 12.55.155(d)(9) ("the conduct constituting the offense was among the least serious conduct included in the definition of the offense").

      Tofelogo , 408 P.3d at 1216.

      Id. at 1220.


text:
    Kathryn DODGE, Appellant and Cross-Appellee, v. Kevin MEYER, Lieutenant Governor of the State of Alaska, and Gail Fenumiai, Director of the Alaska Division of Elections, Appellees, and Barton LeBon and the Alaska Republican Party, Intervenors and Cross-Appellants.
    Supreme Court Nos. S-17301/17311
    Supreme Court of Alaska.
    July 5, 2019
    Patrick W. Munson, Boyd, Chandler, Falconer & Munson, LLP, and Thomas P. Amodio, Reeves Amodio, LLC, Anchorage, for Appellant and Cross-Appellee.
    Katherine Demarest, Laura F. Fox, and Margaret Paton-Walsh, Assistant Attorneys General, Anchorage, and Kevin G. Clarkson, Attorney General, Juneau, for Appellees.
    Stacey C. Stone and Molly A. Magestro, Holmes Weddle & Barcott, PC, Anchorage, for Intervenors and Cross-Appellants.
    Before: Bolger, Chief Justice, Stowers, Maassen, and Carney, Justices, and Fabe, Senior Justice. [Winfree, Justice, not participating.]

      Sitting by assignment made under article IV, section 11 of the Alaska Constitution and Alaska Administrative Rule 23(a).

   BOLGER, Chief Justice.

I. INTRODUCTION

This recount appeal arises from the 2018 Alaska House of Representatives race in District 1. Following a recount the election was certified, with Kathryn Dodge receiving 2,662 votes and Barton LeBon receiving 2,663. Dodge filed this recount appeal pursuant to AS 15.20.510. On January 4, 2019, we issued an order affirming the recount decision and indicated that this opinion would follow.

II. FACTS AND PROCEEDINGS

In the November 6, 2018 general election, Dodge and LeBon ran for the House District 1 seat in the Alaska House of Representatives. On November 26 the State Division of Elections (the Division) certified the election result as a tie, with each candidate receiving 2,661 votes. The tie triggered an automatic recount. The recount was held on November 30, and representatives of each candidate and political party had the opportunity to observe and challenge the Division's vote-counting decisions. The Division counted two additional votes for LeBon and one additional vote for Dodge; the State Elections Director (the Director) certified LeBon as the winner by one vote.

During the recount on November 30, Dodge challenged four ballots. She argued that one ballot, excluded as "overvoted" because it contained markings in more than one oval, should have been counted for her; that two counted ballots should have been excluded because they had been cast by individuals who were not residents of the district; and that one ballot, excluded due to the voter's registration in another district, should have been counted because the voter's registration in the other district was inadvertent. LeBon challenged the same overvoted ballot as Dodge, but he argued it should have been included as a vote for him. LeBon also challenged five additional ballots. The Director maintained her original vote-counting decisions in the face of these nine challenges.

On December 5 Dodge filed this recount appeal challenging the Director's recount decisions on the four ballots Dodge had challenged. LeBon and the Alaska Republican Party filed a motion to intervene on December 7 and then cross-appealed on December 10, requesting review of the six ballots LeBon had challenged. We appointed Superior Court Judge Eric A. Aarseth to serve as a special master to conduct hearings and other proceedings as necessary to make a report with recommended findings of fact and conclusions of law. Judge Aarseth held an evidentiary hearing on December 20 and issued his recommendation report on December 21. He recommended that "all decisions of the Director in conducting the recount for House District 1 be upheld." The parties then filed briefing with objections to Judge Aarseth's report and responses to the objections.

III. STANDARD OF REVIEW

This case does not present any factual disputes but instead involves only statutory interpretation. "We exercise independent judgment when interpreting statutes which do not implicate an agency's special expertise or determination of fundamental policies," such as the election statutes at issue here. "[W]e adopt 'the rule of law that is most persuasive in light of precedent, reason, and policy.' "

IV. DISCUSSION

A. Record Considered On Recount Appeal

One preliminary issue in this appeal is whether we may consider only the record developed during the recount or if we may also consider new evidence introduced by the parties during this appeal. Dodge argues that we should consider evidence submitted after the conclusion of the recount. In response the State argues that the record should be limited to the materials available to the Director at the time of the recount. We need not determine the scope of the evidence we may consider in a recount appeal, however, for we would affirm the Director's recount decision even if we considered the evidence admitted at the hearing.

B. The Over-Marked Ballot

Alaska Statute 15.15.360 provides the rules that govern how the Division counts ballots. A voter is limited to marking a ballot "only by filling in, making 'X' marks, diagonal, horizontal, or vertical marks, solid marks, stars, circles, asterisks, checks, or plus signs that are clearly spaced in the oval opposite the name of the candidate." Alaska Statute 15.15.360(a)(4) additionally states that "[i]f a voter marks more names than there are persons to be elected to the office, the votes for candidates for that office may not be counted." And AS 15.15.360(b) provides that "[t]he rules set out in this section are mandatory and there are no exceptions to them. A ballot may not be counted unless marked in compliance with these rules." Nonetheless we have emphasized that "the crucial question in determining the validity of ballot markings is one of voter intent."

Dodge challenges the exclusion of a ballot that is marked with filled-in ovals for both LeBon and Dodge, but also an X over the oval for LeBon. Dodge argues it is more probable that the X was intended to cancel the mark for LeBon than the X was intended to emphasize it. But the voter's intent is not clear since both the X and filled-in oval are valid marks for selecting a candidate, and the voter used valid marks in the ovals for each candidate. Thus the ballot has been over-marked, and we agree with the Director's decision not to count this ballot.

C. Ballots Challenged Based On The Voter's Registration

Under the Alaska Constitution, "[v]oters in state and local elections must be residents of the election district in which they vote." Residence is defined by statute as "that place in which the person's habitation is fixed, and to which, whenever absent, the person has the intention to return." The legislature has created a presumption of residency under AS 15.05.020(8) : "The address of a voter as it appears on the official voter registration record is presumptive evidence of the person's voting residence. This presumption is negated only if the voter notifies the [D]irector in writing of a change in voting residence."

1. Norma Knapp's registration

Norma Knapp has been registered to vote in House District 1 since 2010. Before the recount Dodge presented evidence that Knapp's address appeared to be for a car repair business and not a residence, and at the hearing before the special master, Dodge testified over objection that an employee at the business told her Knapp resides in New Mexico. Dodge argues that this evidence demonstrates that Knapp is not a valid resident of the district where she voted, and thus her vote should not have been counted. But AS 15.05.020 explicitly provides that the address on the official voter registration record must be presumed valid unless the voter provides written notice of a change of address. And we have liberally construed a voter's residence. We therefore agree with the Director's decision to count this ballot based on the presumptive validity of Knapp's registration.

2. David Odom's registration

David Odom has been registered to vote in House District 1 since 2004. Before the recount Dodge presented evidence that Odom's registered address appeared to be for an office in an industrial park, not a residence. At the hearing before the special master, Dodge filed an affidavit from Odom stating that he did not reside in House District 1 before the election. The special master ruled that this affidavit was inadmissible hearsay. Odom did not testify at the hearing.

Dodge does not challenge the special master's hearsay ruling in her briefing of objections to the master's decision. Rather she argues that the hearing was an administrative proceeding, in which the rules of evidence do not apply. But Alaska Evidence Rule 101 states that the evidence rules apply in all proceedings in the courts unless explicitly provided otherwise. We therefore agree with the master's decision that Odom's affidavit was inadmissible. And we agree with the Director's recount decision based on the presumptive validity of Odom's registration.

3. Robert Beconovich's registration

In November 2016 Alaska voters approved the permanent fund dividend automatic voter registration ballot initiative. The initiative amended AS 15.07.070 so that the Division may use a permanent fund dividend (PFD) application to complete a voter's registration. If an individual submits a PFD application using an address different from that of his or her voter registration, the statute requires the Division to mail the voter a notice that allows the voter to decline to be registered, maintain his or her existing voter registration, or register to vote at a different address. Failure to respond to this notice requires the Division to register the voter using the address provided in the PFD application.

Before 2017 Robert Beconovich was registered to vote in House District 1. But in his 2017 and 2018 PFD applications, Beconovich provided his work address, which was outside District 1. The Division updated his registration using this new address. So when Beconovich reported to the polling station, he filled out a questioned ballot for the District 1 race. The Director refused to count Beconovich's questioned ballot because he was not registered to vote in House District 1 at the time of the election. At the hearing before the special master, Beconovich testified that he had not intended to change his voting registration and that he did not recall receiving a notice from the Division allowing him to decline this update.

Dodge argues that the initiative only requires registration of PFD applicants who have not been registered before. But language within the initiative clearly expresses an intent to make it easier for a voter to update a registration. The initiative's findings note that "PFD applicants who ... wish ... to update their voter registration[ ] must submit information to the State a second time, ... and the State can use PFD-application data to ensure voter-registration data are current." The statute this initiative amended also recognizes that PFD application information should be used to update a registration. Alaska Statute 15.07.070(k)(1)(B) requires the Division to send a notice to "each applicant not already registered to vote at the address provided" in the PFD application, detailing how a voter can "maintain an existing voter registration ... at a valid place of residence." Thus the initiative's requirements apply to both unregistered and currently registered individuals.

Dodge also argues that Beconovich's PFD application could not have changed his voting registration. She points out that even though an applicant verifies that he or she will be registered to vote at the "residential address" provided, the application itself only asks for a "physical address," not a "residential address." She also relies on the fact that Beconovich did not recall receiving an opt-out notice. In response the State relies on the language of AS 15.07.070 which requires the Division to update a voter's registration based on his or her PFD application.

In Willis v. Thomas , we affirmed the Director's decision not to count questioned ballots from voters whose registrations were purged after notice, pursuant to a statutory scheme. The Division's decision to change Beconovich's registration was based on a similar statutory scheme. Both require the Director to send a notice to the voter that his or her registration may be changed. And in both the Director must change the registration if no response is given to the notice. In light of this precedent and our presumption that agency officials have faithfully performed their duties, we agree that Beconovich's registration was properly updated based on his PFD applications. We therefore affirm the Director's decision not to count Beconovich's questioned ballot for the House District 1 race.

D. LeBon's Additional Challenges

LeBon raises a number of issues with respect to other ballots. He argues that we should affirm the Director's decision based on these challenges because they offset any votes that Dodge's challenges could generate. But since we agree with the Director's decisions to deny Dodge's challenges, we are not required to consider whether LeBon's challenges would generate any additional votes for him.

V. CONCLUSION

We AFFIRM the Director's decision certifying the election for the office of State Representative District 1.

      See Press Release, Alaska Div. of Elections, Election Officials Certify House District 1 Race as a Tie (Nov. 26, 2018), http://www.elections.alaska.gov/doc/info/HD1RaceIsTie.pdf.

      AS 15.15.460 provides: "If two or more candidates tie in having the highest number of votes ... [t]he director shall immediately proceed with the recount of votes ...."

      See Election Summary, Alaska Div. of Elections, Official Recount Results (Nov. 30, 2018), http://www.elections.alaska.gov/results/18GENR/data/results1rc.pdf; Press Release, Alaska Div. of Elections, House District 1 Candidate Barton LeBon Prevails By One Vote During Recount (Nov. 30, 2018), http://www.elections.alaska.gov/doc/info/HD1RecountResults.pdf.

      See AS 15.20.510.

      We are grateful to Judge Aarseth for his careful consideration of the issues presented and the timely preparation of his report.

      Cissna v. Stout , 931 P.2d 363, 366 (Alaska 1996).

      Edgmon v. State, Office of Lieutenant Governor, Div. of Elections , 152 P.3d 1154, 1156 (Alaska 2007) (quoting Guin v. Ha , 591 P.2d 1281, 1284 n.6 (Alaska 1979) ).

      See infra subsections IV.C.2 and IV.C.3.

      AS 15.15.360(a)(1).

      Willis v. Thomas , 600 P.2d 1079, 1085 (Alaska 1979).

      Fischer v. Stout , 741 P.2d 217, 221 (Alaska 1987) (citing Alaska Const. art. V, § 1 ; AS 15.05.010(4) ).

      AS 15.05.020(2).

      Fischer , 741 P.2d at 221 ("A residence need only be some specific locale within the district at which habitation can be specifically fixed. Thus, a hotel, shelter for the homeless, or even a park bench will be sufficient.").

      See Alaska R. Evid. 802 -804.

      See Initiative Petition List, Alaska Div. of Elections , http://www.elections.alaska.gov/Core/initiativepetitionlist.php#15pfvr (last visited June 17, 2019) (describing the initiative and results under the petition ID "15PFVR").

      AS 15.07.070(k).

      AS 15.07.070(l ).

      600 P.2d 1079, 1084 (Alaska 1979).

      Compare AS 15.07.070(k), with AS 15.07.130(b).

      Compare AS 15.07.070(l ), with AS 15.07.130(b).

      See Wright v. State , 501 P.2d 1360, 1372 (Alaska 1972) ("Where no evidence indicating otherwise is produced, the presumption of regularity supports the official acts of public officers, and courts presume that they have properly discharged their official duties." (quoting Gallego v. United States , 276 F.2d 914, 917 (9th Cir. 1960) )); see also Finkelstein v. Stout , 774 P.2d 786, 790-92 (Alaska 1989) (finding evidence sufficient to overcome the presumption of regularity), abrogated on other grounds by Nageak v. Mallott , 426 P.3d 930 (Alaska 2018).

      Dodge contends that Beconovich's vote must be counted because "[a] voter's franchise will not be withdrawn unless the voter's intent to have it withdrawn is clearly and unambiguously expressed." Fischer v. Stout , 741 P.2d 217, 224 (Alaska 1987). But here, the Division did not withdraw Beconovich's right to vote; the Division simply updated his registration address as required by the PFD initiative. The Division's decision to change his voter registration was proper. And since by this change he was no longer registered in House District 1, his vote could not be counted in the District 1 election.