text:
    Richard BRANDON, Appellant, v. STATE of Alaska, DEPARTMENT OF CORRECTIONS, Appellee.
    No. S-10056.
    Supreme Court of Alaska.
    July 18, 2003.

      Richard Brandon, pro se, Palmer.
    Timothy W. Terrell, Assistant Attorney General, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

CARPENETI, Justice.

I. INTRODUCTION

Richard Brandon alleges that the Department of Corrections violated his federal and Alaska constitutional rights to an impartial factfinder and to due process generally by allowing a single hearing officer to decide his disciplinary hearing in violation of the version of the Alaska Administrative Code that was in effect at the time. He also requests that we hold that this error is a violation of the Smith v. Cleary final settlement agreement. We find no constitutional violation, and because any violation of the Cleary agreement was harmless error, we decline to reach the Cleary issue.

II. FACTS AND PROCEEDINGS

A. Facts

On October 22, 1999 Richard Brandon, an inmate at the Spring Creek Correctional Center in Seward, was searched and found to have tobaceo in his pocket. Because smoking tobaceo is forbidden in state correctional facilities, Brandon was charged with a violation of 22 Alaska Administrative Code (AAC) 05.400(c)(7) (Supp.2003), which is a "high-moderate" infraction on the state's scale of minor, low-moderate, high-moderate, and major infractions. A disciplinary hearing was conducted by a single hearing officer on November 8, 1999. Brandon called no witnesses and conceded his possession of the tobaceo, but pled not guilty and argued only that he should have been charged with a lesser infraction. He was found guilty and sentenced to fifteen days of punitive segregation, which was suspended for 180 days.

The rules regarding the composition of disciplinary hearing bodies in Alaska correctional institutions have a somewhat complicated history. Beginning in 1977 all but minor infractions were heard by three-member panels pursuant to 22 AAC 05.450(a); a single hearing officer was used only to adjudicate minor infractions. Section VIL.C of the Final Settlement Agreement (FSA) of Smith v. Cleary, a 1990 class action settlement governing numerous aspects of prison conditions in Alaska, refers repeatedly to these two possible types of board composition but does not specify when a three-member panel is required. The final Order of the Cleary FSA also states that "llf any provisions herein are in conflict with existing provisions of Title 22 of the Alaska Administrative Code ... the terms of this Order shall supercede the conflicting provisions." In February 1997, apparently believing that the Cleary FSA absolved it of its duties to follow the AAC, the Department of Corrections (DOC) altered its internal Policy and Procedure manual and began using three-member panels to adjudicate only major infractions, and in 1999 amended 22 AAC 05.450(a) to reflect this change. Even though the DOC had already been using this system for some time, it cireulated a notice to inmates of the amendment to 22 AAC 05.450(a) and informed them that the changes would take effect on November 18, 1999. As noted above, a single hearing officer presided over Brandon's hearing on November 8, 1999, five days before the regulatory change took effect.

B. Proceedings

Brandon appealed the guilty finding to the Spring Creek superintendent on the sole ground that his hearing had been conducted by a single hearing officer instead of the three-member committee required by the version of 22 AAC 05.450(a) in force at the time of his infraction and hearing. The superintendent denied this request on the grounds that the Cleary FSA "clearly permits the use of [either] a disciplinary committee or hearing officer for disciplinary hearings," that the final Order of the FSA supercedes Title 22 of the AAC, that Brandon's constitutional ability to defend himself had not been adversely affected, and that any error was harmless under 22 AAC 05.610. Brandon appealed to the Director of the Division of Institutions, who agreed with the superintendent and noted that "the regulations have now been changed to bring them into compliance with Cleary."

Brandon appealed to the superior court. Superior Court Judge Donald D. Hopwood denied the appeal but found that the DOC's alteration of the disciplinary tribunal structure could have been found by the Cleary court to reflect a misunderstanding of the Cleary FSA. Brandon appeals the constitutionality of the single hearing officer procedure and asks this court to rule that 22 AAC 05.450(a) was altered in violation of the Cleary FSA.

III - STANDARD OF REVIEW

Judicial review of prisoner disciplinary decisions is governed by AS 38.80.295, which provides in relevant part:

(a) A prisoner may obtain judicial review by the superior court of a final disciplinary decision by the department only if the prisoner alleges specific facts establishing a violation of the prisoner's fundamental constitutional rights that prejudiced the prisoner's right to a fair adjudication....
(b) A disciplinary decision may not be reversed
(1) unless the court finds that the prisoner's fundamental constitutional rights were violated in the course of the disciplinary process, and that the violation prefu-diced the prisoner's right to a fair adjudication; [or]
(2) because the department failed to follow hearing requirements set out in state statutes and regulations, unless the prisoner was prejudiced by the denial of a right guaranteed by the Alaska Constitution or United States Constitution....

We have previously held that we have jurisdiction to review DOC administrative decisions which implicate an inmate's procedural due process rights. Whether an inmate has received procedural due process is an issue of constitutional law that we review de novo. The scope and effect of the Cleary final settlement agreement are contract issues that we review de novo.

IV. DISCUSSION

Brandon argues that he was denied due process under both the federal and state constitutions because a single hearing officer cannot be guaranteed to be an impartial adjudicator and because the DOC failed to follow its own regulations in force at the time of his hearing. He also argues that the 1999 amendment of 22 AAC 05.250(a) occurred in violation of the Cleary final settlement agreement § IX.B.4.b.

A. Brandon's - Constitutional - Rights Were Not Violated in the Disciplinary Hearing.

Brandon argues that his disciplinary proceeding violated his right to due process of law under the U.S. and Alaska Constitutions, both of which prohibit the state from depriving citizens of "life, liberty, or property, without due process of law." In this case, the deprivation of liberty that the state imposed was a suspended sentence of fifteen days of punitive segregation.

The extent of the due process guarantees of the federal and state constitutions have been interpreted differently by the United States Supreme Court and this court. As early as Baker v. City of Fairbanks, we noted that

[while we must enforce the minimum constitutional standards imposed upon us by the United States Supreme Court's interpretation of the Fourteenth Amendment, we are free, and we are under a duty, to develop additional constitutional rights and privileges under our Alaska Constitution if we find such fundamental rights and privileges to be within the intention and spirit of our local constitutional language and to be necessary for the kind of civilized life and ordered liberty which is at the core of our constitutional heritage.

A comparison of the relevant holdings of this court and the United States Supreme Court in the area of prison disciplinary proceedings shows that we have interpreted the due process guarantee under the Alaska Constitution more broadly than the United States Supreme Court has interpreted the identical provision of the United States Constitution.

In McGinnis v. Stevens, we held that under the Alaska Constitution punitive segregation of a prison inmate following a major disciplinary infraction is a deprivation of liberty sufficient to trigger the right to due process. In that case we set out the parameters of state constitutional due process rights to be afforded to prisoners in disciplinary proceedings: Subject to certain limitations, inmates accused of major disciplinary infractions are entitled to a disciplinary hearing marked by the right to call witnesses and produce documentary evidence, the right to confront and cross-examine witnesses, the right to counsel if the disciplinary hearing may be followed by a felony prosecution, the right to have the hearing recorded, a " 'substantially more probable than ... innocence' " standard for adjudicating guilt, and a fair and impartial hearing which may be conducted by employees of the prison system.

The United States Supreme Court later reached a different and much narrower conclusion in Sandin v. Conner. There, the Court found that because punitive segregation is almost indistinguishable from administrative segregation and protective custody, it "did not present the type of atypical, significant deprivation in which a State might conceivably create a liberty interest" and therefore did not implicate any particular federal due process rights. Accordingly, if we conclude on the basis of the Alaska Constitution that Brandon's constitutional claims have no merit, we need not reach the issue whether DOC's actions implicate due process considerations under the U.S. Constitution. We turn then first to a consideration of Brandon's state constitutional claims.

1. The DOC's use of a single hearing officer did not violate the guarantee of a fair and impartial tribunal under the Alaska Constitution.

In McGinnis v. Stevens we held that Alaska constitutional due process requires the use of an impartial tribunal in prison disciplinary proceedings regarding major infractions. Specifically, we found that a three-member hearing body "composed of prison officials, or prison officials and inmates," could constitute "a neutral and detached tribunal which is capable of following fair procedures and rendering fair decisions." We required a factual showing of a pattern of bias in order to overcome this presumption of impartiality. We also noted that

[slubstantial institutional interests other than criminality are involved in disciplinary hearings insofar as the disciplinary committee is required by the Division's regulations to "maintain proper control, conserve human values and the individual's dignity, as well as to promote desirable changes in attitude and behaviour on part of the offender." Insofar as knowledge of the conditions of the prison environment is important to an understanding of the significance of events which occur therein, prison officials and offenders theoretically comprise an ideal disciplinary hearing committee.

We did not, however, specifically address the significance of multiple hearing officers per se, and we did not address what process is due in proceedings involving less than major infractions.

Brandon admits that the Alaska Constitution does not explicitly guarantee multiple hearing officers. He argues instead that the use of a single hearing officer cannot guarantee as much impartiality as a three-person board because any improper biases in a single officer cannot be outvoted, and because multiple officers might deliberate more carefully. While he states that "[the circumstances here present inherent and obvious substantive prejudice," he does not in fact allege that the hearing officer in his particular case was "not a neutral and detached tribunal which [was] capable of following fair procedures and rendering fair decisions." Nor does he allege that there was "a pattern of biased disciplinary tribunals" operating in the facility where he was housed.

Because single hearing officers are not in Alaska case law presumed to be biased in prison disciplinary proceedings, and because Brandon offers no specific allegations of bias or explanation of why a high-moderate infraction requires adjudication by a committee instead of a single hearing officer, we hold that Brandon has not shown a violation of his Alaska constitutional right to an impartial factfinder as is required for a reversal under AS 38.80.295.

2. The DOC's failure to follow 22 AAC 05.450(a) did not violate the guarantee of due process under the Alaska Constitution.

The version of 22 AAC 05.450(a) in force at the time of Brandon's infraction and hearing provided that a three-member disciplinary committee should hear the case because it was classified as a "high-moderate" infraction. Instead, his case was heard by only a single hearing officer, which comported with an amended version of 22 AAC 05.450(a) that took effect a few days after the hearing. Brandon argues that DOC's failure to follow its regulation also amounts to an Alaska due process violation. While it is an established proposition that an administrative agency must follow its own regulations, this is a proposition of administrative law, not constitutional law. - Moreover, McGinnis carefully lists those due process protections that are required by the Alaska Constitution in a DOC disciplinary hearing, and neither multiple hearing officers nor the precise execution of every applicable section of the AAC are listed. Therefore, without more, Brandon's allegations do not entitle him to relief, since AS 38.30.295(b)(2) specifically distinguishes between failures to follow regulations in DOC disciplinary hearings that result in state constitutional violations and those that do not. We conclude that Brandon has not demonstrated that his constitutional rights were violated. Under these circumstances, AS 83.30.295 does not permit reversal.

B. Any Violation of the Cleary FSA Was Harmless Error.

- Brandon contends that the application of the amended 22 AAC 05.450(a) to his disciplinary hearing violated the Cleary FSA. However, at his disciplinary hearing Brandon presented no witnesses in his own behalf and admitted to his possession of the tobacco. At the time of the hearing, Brandon's sole argument was that he should have been charged with a different, lesser infraction, but Brandon does not raise this issue on appeal. Given the overwhelming and uncontroverted evidence at Brandon's hearing, and the fact that he alleges no actual bias on the part of the hearing officer in his case, we can see no reason why any violation of the Cleary FSA prejudiced his hearing. Although we are generally reluctant to find harmless error in agency proceedings, we conclude that any violation of the Cleary FSA did not affect Brandon's substantive rights.

v. CONCLUSION

Because Brandon has not shown any violation of his constitutional rights or any substantive prejudice arising from the DOC's alleged failure to adhere to the Cleary FSA, we AFFIRM the decisions of the DOC.

      . AS 33.30.015 reads in relevant part: "(a) On and after August 27, 1999, the commissioner [of Corrections] may not ... (3) allow a prisoner held in a state correctional facility operated by the state to ... (J) smoke or use tobacco products of any kind."

      . This regulation provides in relevant part that "Thligh- moderate infractions include the following: ... (7) possession, use, or introduction of contraband ... which directly threatens the security of the facility, such as excess money or unauthorized drugs." The state claims that tobacco is such contraband by virtue of its disruptive barter value in the no-smoking environment created by AS 33.30.015(a)(3)(J).

      . 22 AAC 05.400(a) provides that "[pJrohibited conduct for prisoners in state facilities is governed by (b)-(e) of this section. A violation must be punished as either a major, high- or low-moderate, or minor infraction."

      . See former 22 AAC 05.450(a) (1991) (effective Sept. 10, 1977) (providing that "[the disciplinary committee must be composed of three members appointed by the superintendent, unless the infraction charged is a minor infraction. In the case of a minor infraction, the superintendent may appoint a single member to hear the matter"); compare McGinnis v. Stevens, 543 P.2d 1221, 1228 (Alaska 1975) (holding that a three-member panel consisting of prison officials and, potentially, inmates is sufficiently impartial to adjudicate major infractions: "Insofar as knowledge of the conditions of the prison environment is important to an understanding of the significance of events which occur therein, prison officials and offenders theoretically comprise an ideal disciplinary hearing committee.").

      . 3AN-81-5274 Ci. (Alaska Super., September 21, 1990).

      . In Register 152, effective November 13, 1999, 22 AAC 05.450(a) (Supp.2003) was altered to provide in relevant part that "[the superintendent shall appoint a single hearing officer as the disciplinary tribunal to hear a disciplinary action unless the superintendent determines appointment of a three-person disciplinary committee is necessary because the disciplinary report concerns an alleged major infraction under 22 AAC 05.400(b)."

      . 22 AAC 05.610 (1991) provides: "Failure of a staff member to follow the regulations set out in this chapter does not invalidate a decision absent a showing of prejudice by the prisoner."

      . AS 33.30.295(a) (providing limited circumstances in which superior court may review final decision in prison disciplinary cases).

      . Abruska v. Dep't of Corrs., State, 902 P.2d 319, 321 (Alaska 1995).

      . Id.

      . Smith v. Cleary, 24 P.3d 1245, 1247 (Alaska 2001).

      . U.S. Const amend. XIV, § 1; Araska Const art. I, § 7.

      . 471 P.2d 386 (Alaska 1970).

      14. Id. at 401-02.

      . 543 P.2d 1221 (Alaska 1975).

      . Id. at 1236-37. The plaintiffs in McGinnis v. Stevens demanded improvements in prison disciplinary procedures that resulted in removal of statutory good time toward release and "in particular punitive segregation procedures." Id. at 1224.

      . Id. at 1229, 1236-37 (quoting internal DOC regulation). In that case we also held that there is no automatic right to appeal in such proceedings. Id. at 1236.

      . 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995).

      . Id. at 486, 115 S.Ct. 2293.

      . Baker v. City of Fairbanks, 471 P.2d 386, 401-02 (Alaska 1970).

      . McGinnis, 543 P.2d at 1228 (construing Wolff v. McDonnell, 418 U.S. 539, 571, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974) (finding similar hearing board "sufficiently impartial").

      . Id.

      . Id.

      24. Id.

      . Id.

      . Id.

      . Id. (construing Wolff v. McDonnell, 418 U.S. 539, 571, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974).

      . Brandon was notified that he was charged with violation of 22 AAC 05.400(c)(7). 22 AAC 05.400(c) lists high-moderate infractions.

      . Compare former 22 AAC 04.450 (1991) with current 22 AAC 04.450 (Supp.2003) (effective Nov. 13, 1999).

      . Stosh's I/M v. Fairbanks N. Star Borough, 12 P.3d 1180, 1185 (Alaska 2000).

      . Bd. of Curators, Univ. of Mo. v. Horowitz, 435 U.S. 78, 92 n. 8, 98 S.Ct. 948, 55 L.Ed.2d 124 (1978).

      . McGinnis, 543 P.2d at 1236-37.

      . In Kalmakoff v. State, Commercial Fisheries Entry Comm'n, 693 P.2d 844, 849-50 (Alaska 1985), we explained: f
      We have employed a "harmless error" standard in reviewing administrative determinations. See North State Telephone Co. v. Alaska Public Utilities Commission, 522 P.2d 711, 715 (Alaska 1974). The relevant federal cases suggest that a court reviewing an agency decision should be much more reluctant to find "harmless error" than it would be if reviewing a lower court decision.

      . See 22 AAC 05.610, which provides: "Failure of a staff member to follow the regulations set out in this chapter does not invalidate a decision absent a showing of prejudice by the prisoner."


source: Caselaw Access Project

author: MATTHEWS, Justice.

license: Public Domain

text:
    Robert L. YATES, Appellant, v. Richard W. HALFORD and VECO Corporation, Appellees.
    No. S-10438.
    Supreme Court of Alaska.
    July 18, 2003.

      William F. Brattain II, Baker Brattain LLC, Anchorage, for Appellant.
    Thomas E. Williams, Keith A. Christenson, Eagle River, for Appellee Halford.
    Todd J. Timmermans, Price & Price, Anchorage, for Appellee VECO Corporation.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

MATTHEWS, Justice.

The question in this case is whether summary judgment was properly granted in favor of a party who had strictly foreclosed a land sale contract. We conclude that summary judgment was improper because the grounds relied on by the movant were both factually disputed and legally insufficient and the movant failed to show that he was entitled to strict foreclosure as a matter of law.

I. STATEMENT OF FACTS

A. Background

In 1994 Richard Halford sold Robert Yates real property consisting of a lodge and some seventy-four acres located near the Denali Highway. The sale was accomplished under an "Agreement for Purchase and Sale of Real Estate and Personal Property." The purchase price was $320,000, payable by means of a $6,000 deposit upon execution of the agreement, $34,000 cash at closing, and the remainder of $280,000 to be paid per the terms of a promissory note: $30,000 in principal for each of the following two years plus interest, with the balance due in August 1997. The promissory note was secured by a deed of trust on the property. Yates hoped to renovate the lodge in order to start an ecotourism venture. The agreement contained default remedies, including an option for termination of the agreement upon "written notice."

After apparently fulfilling his obligations at least through 1995, Yates defaulted on his obligations. Rather than foreclose, Halford proposed that the parties enter into a new agreement. Yates agreed and the parties on July 30, 1997, signed a new agreement-characterized as a "conveyance back and resale"-that both incorporated and made changes to the 1994 Agreement. Notably, the purchase was narrowed to only the "fifteen acres, immediately surrounding the Lodge," and the purchase price was reduced to $118,085.80. The price was payable as follows: $5,000 upon execution of the agreement; $33,085.80 at closing; followed by sixteen quarterly installments of $5,000 each plus interest. The new agreement also included a two-year option, "personal to Robert Yates," to purchase the remaining acreage for $200,000.

The parties closed the new agreement on September 16, 1997. Yates paid the required down payment and the parties signed a separate document entitled "Closing of Sale Contract," containing the following language:

The Purchaser has repaired the lodge roof and has agreed to re-roof prior to September 1, 1998.
The Purchaser represents that all the taxes are current at this time.
Thirty days after written notice of de-foult, the Seller may declare a default and repossess the property.
Both the Seller and the Purchaser agree that all other terms and conditions in the Agreement for Purchase and Sale are binding and in full effect.

(Emphasis added.)

According to Yates's subsequently filed complaint, almost three months after the closing of the sale contract Halford's attorney, Thomas E. Williams, "advised Jerald Briske, who was acting as an agent and assistant to [Yates], that [Yates] would have to pay an additional sum of $500" for attorney's and platting waiver fees. Yates claims that Briske delivered a check to Williams in that amount, drawn on the account of "Coast-Line Enterprises, Inc." and signed by Briske. Briske supports this account in an affidavit.

On January 28, 1998, four months after the closing, Williams sent Yates a letter that declared the transaction "a failure" and purported to terminate the - agreement. Williams alleged that Yates was "unable or unwilling to complete the terms of elosing" and listed multiple delinquencies, including failure to pay past due taxes as well as the quarterly payment due in December 1997.

On February 18, 1998, Yates's attorney, Joan Travostino, responded by letter claiming that termination of the contract was premature because Halford had never given thirty days written notice of default, not even in the January 28th letter. "A written notice of default states what performance is in default and what is owing. The January 28 letter does not do this." She concluded therefore that Yates still had time to cure.

Enclosed with Travostino's letter were three checks, each in the amount of $4,010. A breakdown detailed that the $12,080 covered all the back taxes, some survey work, a platting waiver fee, and the missed payment, including interest through December 15. Each check came from a different bank and referenced a different maker, Yates, Briske, and John Lutz.

On March 5 Williams refused the uncashed checks and explained why Yates was defi-client in his efforts to cure the defaults. Williams stated that the new agreement "clearly established that this sale was to be directly to Mr. Yates and should there be a subsequent sale, the loan would be accelerated." He also noted that the option to purchase the remaining acreage was "personal to Mr. Yates." Williams also accused Yates of misrepresentation concerning payment of taxes and failing to fulfill a condition of the contract:

The new sale was merely a contract to purchase. On September 16, 1997, Mr. Yates represented to Mr. Halford that the 1996 taxes had been paid. In fact, they were not paid until Mr. Halford himself paid them in 1998; therefore, the conditions of the sale contract were never completed.

Williams also implied that Yates had received adequate notice of default because "Mr. Yates and Mr. Halford had many telephone exchanges between September and the termination of the contract whereby Mr. Hal-ford told Mr. Yates that he needed to finish the details of the closing."

On April 2, 1998, Yates renewed his effort to cure the default by re-tendering $12,030. This tender was rejected. On October 20, 1998, Yates's new attorney, Marshall K. Cor-yell, advised Halford that a sum covering the December 1997 payment plus the March, June, and September 1998 payments plus other sums in dispute had been deposited with a title company and would be available to Halford upon reinstatement of the transaction. This offer was ignored. Meanwhile, on or about June 30, 1998, Halford sold all the property to VECO Corporation. When Yates learned of the sale he vacated the property.

B. Proceedings

Yates sued Halford and VECO on December 22, 1998, seeking to set aside the strict foreclosure and reinstate the sale contract.

After settlement negotiations Halford offered Yates three different settlement options, ostensibly under Alaska Civil Rule 68, requiring Yates to either pay off the debt or bring payments current on specified dates; interest was included in each option. But Yates objected to "the interest calculations" and no agreement was reached.

Depositions of Halford and Yates were taken. At his deposition Yates disclosed the existence of a "Memorandum of Understanding" between himself, Briske, and Lutz. In response to this disclosure Halford moved for sanctions against Yates. Halford argued that Yates should have disclosed these relationship earlier, and that Yates had mischar-acterized Briske's role in the complaint by referring to him as an "agent and assistant." Halford also contended that the existence of the memorandum of understanding proved that Yates had already sold the property, thus triggering the "due on sale" clause and nullifying the option to purchase the 200 acres. Halford added that, because Briske and Lutz were "real parties in interest" to the property, they were indispensable parties to the action for specific performance.

Halford attached to the motion a copy of the memorandum of understanding. Of particular concern to Halford was the following portion of the memorandum:

1. It is the intent of the Partners to obtain share equal ownership of the property and to create an appropriate business entity organized under Alaska law for the purposes of such equal ownership;
3. It is the intent of the Partners to accept an assignment of all rights and delegation of all duties heretofore held by Robert Yates under the terms of the July 30, 1997 Agreement{.]

Yates did not contest the existence of an understanding between himself, Briske, and Lutz. Rather, he argued that Halford had always been fully aware of the relationship and that any nondisclosure was an irrelevant oversight. Yates attached an affidavit from Briske detailing his numerous contacts with Halford regarding the property. Briske added:

Another associate, JOHN LUTZ, and I have had an agreement in place since September, 1997 with Mr. Yates whereby we would become partners in the Susitna Lodge operation after Mr. Yates purchased the property and exercised his option on the additional acreage around the Lodge under the terms of the 1997 Agreement Mr. Yates had with Mr. Halford to buy the property. At no time have we ever claimed a current interest in the property....

(Emphasis in original.) Finally, Yates attached a segment of Halford's deposition where Halford acknowledged having a conversation with Lutz about the property and hearing, "by rumor," that Briske had made a $500 payment on behalf of Yates.

Superior Court Judge John Reese denied Halford's motion for sanctions. The order stated:

Defendant Halford requests sanctions for plaintiffs failure to disclose his relationship to Lutz and Brisk{e]. The record does not disclose a close enough relationship to the property by these two men to make their non-disclosure a requirement under Civil Rule 26. The motion is DENIED.

Halford subsequently moved for summary judgment, premising the motion partly on the court's ruling that Lutz and Briske were not closely associated with the property:

[The motion for sanctions] was denied by the Court. In making that decision, the Court effectively made the determination that Mr. Yates' ostensible "partners" are not indispensable parties to the Plaintiff's case. That determination thereby became "the law of the case."

Halford contended that Yates "has admitted at deposition that he didn't and doesn't have the financial ability to complete the transaction he is trying to enforce." According to Halford, two quotes in Yates's deposition indicated that Yates "was not in a financial position to accomplish the necessary renovation without borrowing from some source." Halford then cited a "recognized requirement" of Alaska case law:

It is axiomatic that to obtain specific performance, a buyer must prove not only that he was ready, willing and able to perform at the time the contract was entered into but that he continued ready, willing and able to perform at the time suit was filed and during the prosecution of the specific performance action.

Halford concluded that, because Yates was asking for specific performance of the contract but was not actually in a position to perform, the case must be dismissed.

At the time Yates was without counsel. He filed a motion for extension of time. In case the extension was denied, he also included in the same motion his "opposition" argument. The opposition portion of his motion focused on his current ability to pay: "Currently, I certify to the Court that my financial cireumstances have improved and that with the assistance of potential investors, I would be able to bring the Note payments current."

On August 29, 2001, the superior court granted Halford's motion for summary judgment, and subsequently entered final judgment in favor of both Halford and VECO.

Yates appeals.

II. DISCUSSION

We review grants of summary judgment de novo. It is the duty of the court to determine whether there are disputed factual issues that would preclude the entry of judgment as a matter of law. The facts offered in support of and in opposition to a motion for summary judgment will be construed in a light most favorable to the non-moving party. The burden is on a party seeking summary judgment to show that there are no genuine issues of material fact and that he is entitled to judgment as a matter of law.

In granting summary judgment, the superior court gave no reasons in support of its order. In such cireumstances we review all grounds on which the movant relied to determine whether any grounds were sufficient. In the present case Halford and VECO offered only one reason in support of their joint motion, namely that Yates was not entitled to specific performance because he lacked the financial ability to perform his obligations under the contract.

In making this argument Halford relied on the court's ruling denying sanctions against Yates to the effect that Lutz and Briske did not have a sufficiently close relationship to the property to make their nondisclosure sanctionable under Civil Rule 26. According to Halford, this ruling became "the law of the case." He argued that "Yates stands alone with respect to his purchase of this property . and it is Mr. Yates alone who must establish his financial ability to fulfill the obligations of the contract he is seeking to enforce."

But there was nothing in the court's order denying sanctions that implied that Yates would be prohibited from borrowing funds from Briske and Lutz, or from anyone else. The court's ruling was nothing more than a determination that Yates should not be sanctioned for discovery violations.

Halford and VECO also point to two passages in Yates's deposition that they contend prove that Yates lacks "the financial ability to comply with his contractual obligations." The first statement is: "But, see, because I knew from the get-go that I didn't have the ... -the clout to-to go out and borrow $500,000 to do the remodel and so on...." This is a reference concerning renovations necessary to convert the lodge to make it suitable for Yates's ecotourism plans. The only alteration of the lodge that Yates was contractually required to perform was to replace the roof, surely not the whole subject of the $500,000 remodel that Yates is referring to in the above excerpt.

The second quote is fragmented.

Q: But financially, you alone, I'm not talking about borrowing from anyone else, no matter whom, but you alone were not in a position to accomplish the renovations?
A: That's correct. That's correct.
A: Okay. Let me back up one step. The one step is, I alone could not have done this-well, it would have made a heck of a lot of difference if I'd received the $250,000 that I was going to get on the sale [of unrelated property Yates owned in Mon-tanal, and that was due in 1996. It obviously didn't happen. So without that, surely, no, I was not able to.

This fragment again is concerned with renovations rather than the purchase price. Further, the fragment is artificially limited to Yates's personal financial resources rather that what he might obtain from his prospective partners or other sources.

VECO claims that Yates admitted by implication in his pro se opposition in response to Halford's summary judgment motion that he has not at all times since the making of the 1997 Agreement been financially able to fulfill his contractual obligations. In his opposition Yates stated: "I certify to the court that my financial cireumstances have improved and that with the assistance of potential investors, I would be able to bring the Note payments current." VECO apparently assumes that by using the word "improved" Yates is here conceding that during the litigation he lacked the financial ability to bring the payments current.

VECO's argument is both factually and legally flawed. Factually, because Yates's statement contains no specific time reference and may merely be referring to cireum-stances in December of 1997 when he missed the quarterly statement and before he tendered the checks that would have brought him eurrent. Legally, because the premise that Yates must at all times during the litigation have had the ability to perform is wrong. Dismissing Yates's suit would give effect to a strict foreclosure. Our case law cautions against strict foreclosure remedies. We have never held that financial inability at an interim point in litigation disqualifies a purchaser from equitable relief that he can afford when the relief is granted. Further, Yates was acting pro se and was responding to allegations made by Halford based on quotes dealing with Yates's ability to make renovations most of which he was not contractually obliged to make. Drawing, as we must, reasonable inferences in favor of the non-movant we conclude that Yates was not admitting an inability to perform the contract after the December 1997 default.

We conclude that summary judgment was inappropriate based on the grounds offered by Halford and VECO. But we also observe that Halford's showing in support of summary judgment was deficient in other respects as well. He did not show that he had complied with the clause requiring thirty-days notice of default, or that Yates had not timely tendered a cure of any default,. Further, he did not show that this case was inappropriate for the sort of equitable relief from strict foreclosure that has frequently been approved by this court.

III. CONCLUSION

The judgment is REVERSED and this case is REMANDED for further proceedings consistent with this opinion.

      . A section entitled "DEFAULT; REMEDIES" provided in part that, in the event of a material breach or default by either seller or purchaser, the injured party had "the right to (a) demand and have specific performance of this Agreement; or (b) terminate this Agreement upon written notice without liability [to the other.]"
      Also incorporated into the 1994 agreement was a deed of trust concerning delivery of title upon fulfillment of the promissory note. Regarding default, the deed of trust read as follows:
      Upon default by Trustor in payment of any indebtedness secured hereby or in performance of any agreement hereunder, all sums secured hereby shall immediately become due and payable at the option of the Beneficiary. In the event of default Beneficiary may execute or cause the Trustee to execute a written notice of such default and of his election to cause to be sold the herein described property to satisfy the obligation hereof, and, if the written notice is executed, shall cause such notice to be recorded in the office of the recorder of each recording precinct wherein said real property of [sic] some part thereof is situated.

      In the alternative, the Beneficiary may foreclose under AS 09.45.

      . Yates claimed in his deposition that $80,000 from a land sale in Montana was forwarded to Halford as payment for the land after closing.

      . Regarding the incorporation of the 1994 Agreement, the 1997 Agreement included the following paragraph:
      The parties understand and agree that by incorporating the June 22, 1994 agreement, many provisions may no longer apply, partially because of the Seller's three year possession, and because of Seller's possession between the date of signing this agreement and the closing date of September 15, 1997. The parties specifically agree to be reasonable in re-applying the June 22, 1994 contract to this contract dated July 29, 1997.

      . The option stated that it "cannot be sold or separated from the purchase and sale of the Lodge."

      . We assume by the negative tone of Williams's March 5 letter that he refused the checks. He more explicitly made this refusal in a June 23 letter.

      . Halford made another Rule 68 offer in July of 1999 to settle in exchange for payment of arrear-ages "simplified as to its terms." But this offer again included full interest and Yates again failed to accept.

      . Halford cited Sowash v. Garrett, 630 P.2d 8 (Alaska 1981).

      . VECO filed a joinder in motion for summary judgment four days later.

      9. Quoting Foster v. Hanni, 841 P.2d 164, 172 (Alaska 1992).

      . Beilgard v. State, 896 P.2d 230, 233 (Alaska 1995).

      . Drake v. Hosley, 713 P.2d 1203, 1206-1207 (Alaska 1986).

      . Beilgard, 896 P.2d at 233.

      . Powell v. Tanner, 59 P.3d 246, 248 (Alaska 2002); Braund, Inc. v. White, 486 P.2d 50, 53-54 (Alaska 1971).

      . State v. Appleton & Cox of California, Inc., 703 P.2d 413, 414 (Alaska 1985); Austin v. Fulton Ins. Co., 444 P.2d 536, 540 (Alaska 1968).

      . Kennedy Assocs., Inc. v. Fischer, 667 P.2d 174, 182 (Alaska 1983) ("[A] forfeiture of contractual rights is to be avoided, whenever possible."); Hendrickson v. Freericks, 620 P.2d 205, 212 (Alaska 1980) ([Florfeitures are not favored and never enforced in equity unless the right thereto is so clear as to permit no denial.") (quoting Shoemaker v. Shaug, 5 Wash.App. 700, 490 P.2d 439, 441 (1971)); Moran v. Holman, 501 P.2d 769, 771 (Alaska 1972) ("It is also well established in this jurisdiction that equity abhors a forfeiture and will seize upon slight circumstances to relieve a party therefrom ... where adequate compensation can be made equity discharges the forfeiture, upon such compensation being made." (quotations and citations omitted)); McCormick v. Grove, 495 P.2d 1268, 1269 (Alaska 1972) ("A trial court may in its discretion refuse to enforce the forfeiture provisions of a contract if the equities of a particular situation so dictate.").

      . Beilgard, 896 P.2d at 233.

      . See, e.g., Moran, 501 P.2d at 771, and authorities there cited.


author: STEWART, Judge.

text:
    STATE of Alaska, Petitioner, v. Barry A. ANDERSON, Respondent.
    No. A-8257.
    Court of Appeals of Alaska.
    July 18, 2003.

      John A. Scukanee, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Gregg M. Renkes, Attorney General, Juneau, for Petitioner.
    Quinlan Steiner, Assistant Public Defender, and Barbara K. Brink, Public Defender, Anchorage, for Respondent.
    Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   OPINION

STEWART, Judge.

In this case, the superior court found that the police recklessly omitted facts when applying for a warrant to surreptitiously record conversations between a police informant and suspects in a robbery and homicide. The superior court concluded that when the omitted facts were added to the facts presented to the issuing judge, there was no longer probable cause supporting the warrant. Based on our review of the record, we conclude that addition of the omitted information does not undercut the warrant. Accordingly, we reverse the superior court's order and remand for further proceedings.

Background and proceedings

On the morning of September 25, 1999, the police responded to a reported burglary at Godfather's Pizza on Benson Boulevard in Anchorage. The police found the body of the night manager, Keith Dirkes, in the walk-in freezer. Dirkes had been shot twice in the head with a .45 caliber gun. The day's cash and the back-up cash were missing from the store. The police found no signs of forced entry into the store, and two other employees who remained at the store until closing said that the front and back doors were locked when they lefts Further investigation showed that Barry A. Anderson was a former employee of that Godfather's restaurant and had worked with Dirkes. Anderson had been a closing manager and knew the restaurant's closing routine. The police learned that Anderson had been hanging around the restaurant after closing about a week before the robbery.

On October 7, 1999, an employee of a Footlocker store in Anchorage was robbed at gunpoint when he drove into the parking lot of the Northrim Bank on Old Seward Highway to drop off the night's deposit. There were two robbers, and the employee described the one without a gun as an African-American man wearing a green jacket. He described the gun as a chrome, large-caliber, semi-automatic handgun. Shortly after the police responded to this robbery report, an officer saw a car on Old Seward driven by an African-American man in a green jacket. The driver, Bert Oliver, was a former employee of Footlocker and had worked with one of the robbery victims. He consented to a search of the car and police found two black ski masks, a bullet-resistant vest, and a loaded magazine to a 45 caliber semi-automatic handgun. The police also found a package of developed film in the trunk with the name "E. Colvin" on it. Oliver said the car belonged to his friend, Eric Colvin, and, in fact, the car was registered to Colvin. Police showed a photo of Colvin found in the trunk to the victim, but the victim did not identify Colvin as a suspect. Oliver worked at the Subway shop at University of Alaska Anchorage (UAA).

On October 13, 1999, Jeff Tynes reported that someone stole a UAA van parked on campus. Tynes had been delivering pastries and collecting deposits from a coffee shop on campus and said that while he used the restroom, he left the keys in the van. He also left a money bag underneath the seat that contained a total of $3536.80.

Tynes was charged with theft after making incriminating statements that the police recorded pursuant to a Glass warrant. Tynes told the police that his cousin, Eric Colvin, worked at the Subway at UAA, and that Colvin knew the delivery schedule of the van but did not know that Tynes carried money from other deliveries. On the day of the theft, Colvin arrived at work late-an hour and twenty minutes after the theft. After that day, Colvin never returned to Subway.

On the evening of October 17, 1999, the Cash Alaska pawn shop on Spenard Road was robbed by two gunmen, one of whom brandished a silver Ruger semi-automatic pistol. One gunman took jewelry that had not yet been placed in a safe. The other gunman walked past two locked safes and directed the employees to open a third, which happened to be the only safe to which the employees had a combination. This led one of the employees to believe the gunman had inside information about the safes.

Police learned that a Ruger P90 .45 caliber handgun was missing from the Cash Alaska pawn shop on Muldoon and that Anderson, who worked at the store, had inventoried that gun about a month before the Spenard robbery. Anderson was also working at the Spenard Cash Alaska when the robbery occurred.

Police later arrested Anderson for the Spe-nard Cash Alaska robbery when he took jewelry stolen in the robbery to a jeweler to have the gems removed. The police interviewed Anderson on November 5, 1999, and he stated that he knew of a plan to rob a Cash Alaska shop by a person named "Eric." Anderson said the Cash Alaska robbery was Eric's idea, that he told Erie not to do it, but that Anderson's "cut was gonna be ... to get the [gems] taken out and just to sell 'em and I get to keep whatever." Anderson said he met with Eric four days after the robbery and that Eric gave Anderson some jewelry plus about $500 cash. Anderson also claimed that Eric committed the Footlocker robbery and the UAA theft, relating some accurate details of both crimes.

On December 9, 1999, Detective Barth interviewed Carlos Newton, a friend of Col-vin's. Newton insisted that Colvin ("Erie") was innocent and that he had heard that Anderson had committed the Cash Alaska robbery. Barth told Newton he was convinced that Colvin was involved in the Cash Alaska, Footlocker, and UAA crimes. Barth suggested that Newton wear a wire against Colvin, but Newton refused.

On December 15, 1999, Detective Vanderv-eur interviewed Newton again. Newton indicated that he heard that Anderson shot Dirkes during the Godfather's robbery/homicide. Detective Vanderveur informed Newton that there was a $15,000 reward for information leading to the conviction of the Godfather's perpetrator. The police again suggested Newton wear a wire to speak with Colvin, but Newton suggested that they have Colvin wear a wire and speak with Anderson instead. Detective Vanderveur told Newton to tell Colvin to contact him or the District Attorney through his attorney if he wished to cooperate, and Detective Vanderveur gave Newton his card and the District Attorney's phone number.

Eventually, Colvin contacted the police and was interviewed again on January 14, 2000. Colvin told Detective Vanderveur that he had been present when Anderson and another man, Carlos Adams, described the Godfather's robbery/homicide. They said that Dirkes let Anderson and Adams in the store because Dirkes knew Anderson. According to Colvin, Anderson said he looked for both shell casings after shooting Dirkes, but found only one. Colvin reported that Anderson obtained the gun from the Muldoon Cash Alaska after an inventory.

Colvin also said that Adams told him that Anderson wanted the gun discarded, and Colvin drove Adams north of Anchorage where Adams threw the gun in the Knik River, Colvin described where Adams disposed of the gun and later led the police to that location. The police recovered the gun, a Ruger P90 .45 caliber pistol, later confirmed as the weapon used to kill Dirkes. There was no clip in the weapon when it was found.

Colvin and the State entered into a plea agreement. The agreement provided that Colvin's unrelated forgery charges would be reduced to one misdemeanor charge and that he would serve no additional jail time in exchange for his cooperation in electronic surveillance of Anderson and others. A clause provided that the agreement would be void if the State determined that Colvin had participated in "any armed robbery, including the robbery of the Godfather's Pizza on September 25, 1999, or the robbery of Cash Alaska on October 17, 1999."

Assisted by the District Attorney's office, Detective Vanderveur applied for a Glass warrant to record conversations between Colvin and Anderson. The affidavit filed with the application included some, but not all, of the facts described above. Both Van-derveur and Colvin testified in support of the warrant. Vanderveur did not mention anything about the Footlocker robbery or the UAA theft in his affidavit or testimony; in particular, he did not mention that Colvin had been implicated by Anderson in both crimes. - Vanderveur told Superior Court Judge Elaine M. Andrews that Colvin had a criminal record but failed to mention that a 1996 robbery charge was for armed robbery with a handgun; that charge had been reduced to misdemeanor assault. Vanderveur did not provide Judge Andrews with a copy of Anderson's November 5th statement, Col-vin's December 8th statement, or either of the interviews with Newton. Vanderveur did not inform Judge Andrews that police had suspected that the Godfather's, Footlocker, Cash Alaska, and UAA incidents were connected and that Colvin's name had come up in the Cash Alaska, Footlocker, and UAA investigations.

Judge Andrews issued the Gloss warrant, explicitly finding that Colvin's testimony was corroborated by the fact that he led the police to the murder weapon and that he had known that only one shell casing remained at the seene of the crime.

Anderson moved to suppress his recorded statements under State v. Malkin, arguing that the Glass warrant was invalid because Detective Vanderveur intentionally or recklessly omitted material facts. An evidentiary hearing was held before Superior Court Judge Michael L. Wolverton on February 15-16, March 80, and April 9-10, 2001. Judge Wolverton did not find that any facts were intentionally omitted, but he found that certain facts were recklessly omitted and granted Anderson's motion. Judge Wolver-ton suppressed the wired conversations seized when the Glass warrant was executed. The State appeals this ruling.

Discussion

In Lewis v. State, we described the Malkin analysis as follows:

[O]nce a misstatement or omission is established, the burden of proving that it was neither reckless nor intentional shifts to the state. A failure to meet this burden will vitiate the warrant if the misstatement or omission is material, that is, if deletion of the misstated information from or inclusion of the omitted information in the original affidavit would have precluded a finding of probable cause. A non-material omission or misstatement-one on which probable cause does not hinge-requires suppression only when the court finds "a deliberate attempt to mislead [the magistrate]."

We employ differing standards of review in this analysis. A finding that an officer recklessly omitted or misstated facts will be upheld unless we are convinced the finding is clearly erroneous. However, we exercise independent judgment on the question whether the evidence presented in support of the warrant (after adding reckless omissions under Malkin ) is sufficient to establish probable cause.

Judge Wolverton found that Detective Vanderveur recklessly omitted material facts in his search warrant affidavit and testimony before Judge Andrews. Among the facts Judge Wolverton found were omitted included the fact that, in addition to the Cash Alaska robbery, Anderson had also implicated Colvin in the UAA theft and the Footlocker robbery. He found that Vanderveur recklessly failed to inform Judge Andrews that the police believed there might be a connection between all of these crimes, including the Godfather's robbery/homicide, and that police reports in the UAA theft and Footlocker robbery (which Vanderveur never read nor provided to Judge Andrews) mentioned that Colvin had connections with both of these crimes. Judge Andrews was not informed that Colvin also had a connection to the same type of weapon believed to have been used in the Godfather's and Cash Alaska incidents. Judge Wolverton also found that the police recklessly omitted the fact that the weapon recovered with Colvin's assistance had no "clip" (magazine) and that a magazine for the same caliber handgun was found in Colvin's car shortly after the Footlocker robbery.

In addition to Colvin's connection to the UAA and Footlocker crimes, Judge Wolver-ton found that other facts bearing upon Col-vin's credibility had been omitted: that in his first interview, Colvin lied about knowing Anderson, refused to take a polygraph test, and was informed that Anderson had implicated him in the UAA and Footlocker crimes; that information corroborating Colvin's testimony had been disclosed to Anderson, who later spoke to Colvin; and that Colvin may have been motivated to cooperate with police only after his friend, Newton, related information Newton had learned during an interview with Detective Barth. The information Newton may have told Colvin included the existence of a substantial cash reward for information on the Godfather's robbery/homicide, that police "knew" Colvin was responsible for the Footlocker and UAA crimes, and that the gun clip seized from Colvin's car matched the murder weapon (which has not been established).

The State does not dispute that Detective Vanderveur omitted information in his warrant affidavit and testimony, but contends that the omitted facts were immaterial or that Judge Wolverton erred when he found the officer recklessly omitted the facts. Most of these findings depend on Judge Wol-verton's view of the credibility of the witnesses who testified over the course of several days of evidentiary hearings.

Even so, two of Judge Wolverton's findings are clearly erroneous. First, Judge Wolverton's finding that Anderson spoke to Colvin after the police told Anderson that they had recovered a shell casing at Godfather's is not supported by the record before us. At the warrant hearing before Judge Andrews, Colvin denied having had any contact with Anderson or Adams after being arrested for the forgeries. Colvin also repeatedly denied having had any conversations with Anderson during his January 14 statement to police. Colvin explained that he could not have spoken with Anderson after returning from Alabama because Anderson was already incarcerated and even though he had seen Anderson in custody at the jail, Colvin did not think that Anderson saw him or knew he was there. No evidence contradicts this testimony before Judge Andrews, and Colvin did not testify before Judge Wol-verton. Therefore, we conclude that the trial court's finding that "police had in fact disseminated some of Colvin's so-called corroborative details through interviews with ... Barry Anderson ... {whol later spoke with Colvin" is clearly erroneous.

Additionally, Judge Wolverton's finding that Judge Andrews was not informed that the handgun recovered with Colvin's assistance had no "clip" or magazine in it is clearly erroneous. Detective Vanderveur noted this fact in the affidavit he filed in support of the warrant.

We turn next to the question whether including the remaining omissions in the evidence supporting the warrant "would have precluded a finding of probable cause." Although the State argues that Judge Wolver-ton erroneously found the remaining omissions to be reckless and material, we need not address these claims. We conclude that adding the remaining omissions found by Judge Wolverton to the evidence presented to Judge Andrews does not preclude a finding of probable cause.

In State v. Joubert, the Alaska Supreme Court ruled that probable cause "requires only a fair probability or substantial chance of criminal activity, not an actual showing that such activity occurred." Probable cause is an objective standard.

The evidence presented to Judge Andrews showed there were no signs of forcible entry at Godfather's. The employees who remained at the store until after it was closed to walk-in customers indicated that the front and back doors were locked when they left, which suggests that Dirkes opened the door to his attackers after closing. Dirkes knew Anderson because Anderson was a former employee at that Godfather's restaurant and had worked with Dirkes. Anderson himself had been a closing manager and knew the closing routine, so he understood when the store was closed and when the other employees would be gone. And Anderson had been seen hanging around the restaurant after closing about a week before the robbery.

There was also evidence that Anderson was involved in the Spenard Cash Alaska robbery. Anderson was working there when the robbery occurred. The employees told police that a gunman stole some jewelry that had not yet been put into a safe. Although there were three safes at the back of the store, the gunman directed them to open the only safe for which the employees had the combination. Anderson was arrested for the Cash Alaska robbery after police learned he had taken jewelry stolen in the robbery to a jeweler to have the gems removed. And during the subsequent police interview, Anderson admitted he was aware of a plan to rob a Cash Alaska pawn shop by "Eric," but claimed that he only had the jewels because Eric had given them to him.

Other information connected Anderson to the handgun that killed Dirkes and that the police thought was used during the Cash Alaska robbery. One of the employees present during the Cash Alaska robbery said the robbers brandished a silver "Ruger semi-auto pistol." A Ruger P90 .45 caliber handgun turned up missing from the Muldoon Cash Alaska pawn shop after Anderson inventoried the guns at that location, about a month before the Spenard Cash Alaska robbery and about a week before the homicide. With Colvin's assistance, the police recovered a gray Ruger P90 .45 caliber pistol from the Knik River and confirmed it as the weapon used to kill Dirkes.

Colvin told the police and testified before Judge Andrews that Anderson had admitted his involvement in the homicide in front of several people. - Colvin testified that Anderson said he looked for the two shell casings after shooting Dirkes but could find only one. At that time, the police had not publicly announced that only one shell casing had been discovered at the seene.

Judge Andrews described Colvin as an informant from the criminal milieu. She knew that Colvin had a record of crimes of dishonesty and that his first statements to the police were not truthful. Judge Andrews acknowledged that there were objective reasons to doubt Colvin's credibility, but when Colvin testified, Judge Andrews questioned him closely about the plea agreement and warned him that the police may have more information than he might realize. She added that if he was not telling the truth, he would be "in very significant trouble" and loge the benefits of the plea agreement.

In earlier cases, we have noted that an informant's eredibility can be bolstered when the informant aids the authorities and takes the risk that the authorities will discover that the information the informant has provided is not true. And Colvin not only cooperated with the authorities, he took the additional step of appearing before Judge Andrews and testifying under oath so that the State might obtain the authorization to record conversations between Colvin and Anderson. Judge Andrews thought that the physical evidence, the Ruger handgun and the single shell casing found at Godfather's, were "very persuasive pieces of physical corroboration[.]" She knew there were reasons to distrust Colvin's account, but under the circumstances, she credited his information and issued the warrant.

The facts that Judge Wolverton found were omitted recklessly provide additional information that could be used in an analysis of Colvin's credibility. But based on our review of the record, we conclude that the evidence presented to Judge Andrews, when combined with the omissions identified by Judge Wolverton, still demonstrates "a fair probability or substantial chance" that Anderson was connected with the Godfather's homicide. The police investigation showed that Dirkes had been shot twice with A5 caliber bullets. Anderson was connected to the Godfather's restaurant and to the 45 caliber Ruger handgun missing from the Muldoon Cash Alaska. Anderson knew Dirkes because he had been a co-worker with Dirkes at Godfather's and, because Anderson had also been a night manager at Godfather's, he was familiar with the closing routine. Anderson had been seen around the restaurant at closing a few days before the homicide. There was no sign of forced entry, which tended to show that Dirkes let the person who killed him inside the restaurant because he knew the person. Anderson also had worked at the Muldoon Cash Alaska where he had inventoried the missing 45 caliber Ruger handgun shortly before the homicide.

Colvin testified that Anderson admitted his involvement in the Godfather's robbery and homicide. He said that Anderson told him that he shot Dirkes twice but recovered only one of the shells This meshed with the police investigation. And Colvin led the police to a place on the shore of the Knik River where Colvin saw a cohort of Anderson's throw a handgun in the water. The police searched this place and found the murder weapon. While the additional facts added to the evidence are relevant to an analysis of Colvin's credibility, "the very persuasive pieces of physical corroboration" cited by Judge Andrews still remain. Based on our analysis of the evidence presented to Judge Andrews and the additional facts that must be added pursuant to Judge Wolverton's findings, we conclude that the additional facts do not preclude a finding of probable cause. Accordingly, we reverse the superior court's order suppressing the taped conversations obtained when the police executed the (Hlass warrants.

Conclusion

The order of the superior court suppressing the taped conversations obtained when the Glass warrants were executed is REVERSED.

      . See State v. Glass, 583 P.2d 872 (Alaska 1978), on reh'g, 596 P.2d 10 (Alaska 1979) (holding that the Alaska Constitution requires police to obtain judicial authorization before secretly recording a person's private conversations}.

      . 722 P.2d 943 (Alaska 1986).

      . 862 P.2d 181 (Alaska App.1993).

      4. Lewis, 862 P.2d at 186 (quoting Malkin, 722) P.2d at 946 & n. 6) (citations omitted).

      . See Lewis v. State, 9 P.3d 1028, 1033 (Alaska App.2000); Blank v. State, 3 P.3d 359, 365 (Alaska App.2000); McLaughlin v. State, 818 P.2d 683, 685-86 (Alaska App.1991).

      . - See Lewis, 9 P.3d at 1033.

      . - Lewis, 862 P.2d at 186.

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

      . Id. at 1119 (quoting Van Sandt v. Brown, 944 P.2d 449, 452 (Alaska 1997)).

      . Reeves v. State, 599 P.2d 727, 741 n. 44 (Alaska 1979).

      . See Gustafson v. State, 854 P.2d 751, 757 (Alaska App.1993); State v. Bianchi, 761 P.2d 127, 131 (Alaska App.1988).

      . See McLaughlin, 818 P.2d at 686 (an informant's appearance before a magistrate and willingness to submit to an oath and questioning by the magistrate provides a sound basis for assessing the informant's credibility).

      . See Joubert, 20 P.3d at 1119 (quoting Van Sandt, 944 P.2d at 452).


author: COATS, Chief Judge.

text:
    Michael D. AULT, Appellant, v. STATE of Alaska, Appellee. Clara McDonald, Appellant, v. State of Alaska, Appellee.
    Nos. A-8371, A-8409.
    Court of Appeals of Alaska.
    July 18, 2003.

      Robert B. Downes, Downes, MacDonald & Levengood, Fairbanks, for Appellants.
    Jason Gazewood, Assistant District Attorney, Teresa Foster, District Attorney, Fairbanks, and Barbara J. Ritchie, Acting Attorney General, Juneau, for Appellee.
    Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   OPINION

COATS, Chief Judge.

Michael D. Ault and Clara McDonald were each convicted of misdemeanor driving under the influence of an alcoholic beverage (DUI). Each had prior DUI convictions, so they were subject to the mandatory minimum sentencing provisions of AS 28.35.030(b). The district court found that under AS 28.35.030, as amended in 2001, it had to take into account all the appellants' prior DUI convictions, even those that had occurred more than ten years prior to the appellants' eur-rent offenses. Ault and McDonald appeal, claiming that the district court erred when it considered all their prior DUI convictions. Based on the legislative history of the 2001 amendment, we agree with the district court.

Facts and discussion

Ault was arrested for DUI on February 16, 2002. On May 22, 2002, he pleaded no contest to one count of misdemeanor DUI His only prior conviction for DUI was in 1984. District Court Judge Joseph W. Miller sentenced Ault to the mandatory minimum term for a second-time DUI offender. On appeal, Ault claims that he should have been considered a first-time DUI offender.

MceDonald was arrested for DUI on April 30, 2002. On July 3, 2002, she pleaded no contest to this charge. She had prior DUI convictions in 2000, 1982, and 1981. Judge Miller sentenced her as a fourth-time DUI offender. On appeal, she claims that she should have been considered a second-time DUI offender.

The appellants claim that when the legislature amended AS 28.35.030 in 2001, it did not intend courts to count DUI offenses that were more than ten years old in determining mandatory minimum DUI sentences. But the legislative history of the 2001 amendment does not support the appellants' position; in fact, the history demonstrates that the legislature intended mandatory minimum DUI sentences to be based on all of a defendant's prior DUI convictions.

The former version of AS 28.35.0830 had two "look back" periods: one was five years, and the other was ten. The five-year "look back" was used to determine whether a defendant was guilty of a felony-under this "look back," a person who was convicted of DUI and had been previously convieted "two or more times within the five years preceding the date of the present offense was guilty of a class C felony."

The ten-year "look back" was used to define "previously convicted." Under former AS 28.85.0380, "previously convicted" meant "having been convicted of [driving under the influence, refusal to submit to a chemical test, or operating a commercial vehicle while intoxicated] in this or another jurisdiction, within 10 years preceding the date of the present offense." This ten-year "look back" was used to determine mandatory minimum sentences for both misdemeanor and felony DUI convictions. Under this definition, any DUI conviction that occurred more than ten years before a defendant's present offense was not considered when determining mandatory minimum misdemeanor or felony DUI sentences.

Alaska's drunk driving laws, however, were significantly revised in 2001. During the 2001 session, Representative Norman Rokeberg sponsored House Bill 4. Among other things, the legislation amended the name of the offense to "driving under the influence" rather than "driving while intoxicated," reduced the legal limit for the statutory breath alcohol content from .10 to .08 percent, expanded the felony "look back" period from five years to ten, and redefined "previously convicted" by removing the language that limited consideration of previous convictions to the prior ten years.

Addressing the proposed changes' to the two "look back" periods, Representative Rokeberg said that the bill phased in a ten-year "look back" period to determine if a person was guilty of a felony, replacing the then-current five-year "look back" period. He said that the bill drafters had initially considered repealing both "look back" periods but had rejected that idea because the fiscal notes went "right through the roof." That is, it would be too expensive for the state to treat all third-time DUI offenders as felons.

In addition, Representative Rokeberg told the House Transportation Committee that House Bill 4 was based on recommendations made by the Municipality of Anchorage's DUI Prevention Task Force. He reaffirmed this statement two months later when he told the Senate Judiciary Committee that House Bill 4 was the result of the Task Force's recommendations.

The Municipality of Anchorage DUI Task Force "Final Report" called for making all "third and subsequent DUIs felonies by eliminating 'look back' provisions." In the report's discussion section, the Task Force said:

This recommendation emphasizes the increased focus on repeat offenders. Present state law (AS 28.85.0830) provides for five-year and ten-year parameters that exclude consideration of prior offenses when considering charges and sentencing for drunken driving convictions. The consensus of the Task Force is that the elimination of the previous convictions is not in the public interest. - Repeat offenders should be held to a level of lifelong accountability.

Additionally, in a later section of the Task Force's final report, the "Current Laws" subcommittee repeated the recommendation that the State "[albandon [the] 10 years framework regarding previous convictions" and that "[all third and subsequent lifetime [DUIs] be felonies."

The view that the 2001 amendments to the DUI laws would bring life-long accountability for DUI convictions was emphasized by at least one witness who addressed the fiscal costs involved in imposing a life-long "look back." In March 2001 the Department of Corrections's Program Coordinator/Legislative Lisison, when explaining the fiscal impact of House Bill 4's life-long "look back," said that:

Under [the] current statute, a person who commits a second offense within ten years is considered a second-time offender, but if that person's first offense had occurred further back than ten years, he [or] she is treated as a first-time offender. Section 32 would remove that ten-year look-back; thus all second offenses would be treated as such, regardless of how long ago they occurred.

The fact that the amended statute would create a life-long "look back" was also made clear when the senate addressed this new legislation. During Senate Judiciary Committee discussion of House Bill 4, Committee Chairman Robin Taylor asked whether removing the "ten year" language from AS 28.35.030(0)(4) meant that the "look back" period would apply forever. Assistant Attorney General Dean Guaneli confirmed that the proposed bill would remove this ten-year period, thus making defendants responsible for all their prior DUI convictions.

Based on this history, we conclude that when the legislature amended AS 28.35.030 in 2001, it intended to expand the five-year "look back" used to determine felony offenses, and to completely repeal the ten-year "look back" used to define "prior convictions." By removing the ten-year period from the definition of "previous conviction," the legislature created a life-long "look back" for DUI sentencing purposes.

Our conclusion is supported by the fact that had the legislature not redefined "prior conviction" to extend back beyond ten years, a significant section of the current statute would be superfluous or meaningless. Currently, AS 28.35.0830 provides misdemeanor penalties for first-, second-, third-, fourth-, and more than fourth-time DUI offenders. But, under the interpretation urged by Ault and McDonald, there could not be third-, fourth-, or more than fourth-time misdemeanor convictions. If both the misdemean- or and the felony sentencing relied on the same ten-year "look back," all third-time DUI offenders within this "look back" would be chargeable as felons. As written, the current misdemeanor sentencing provisions are meaningful only if courts are supposed to take into account all of a defendant's prior DUI convictions. By repealing the ten-year period from the definition of "prior convie-tions," the legislature ensured that the statute's misdemeanor and felony sentencing see-tions were consistent with each other.

Appellants also claim that because the "legislative history demonstrates that even the [legislators] were unsure of the effect that was made by [the] change in the law," this change should be strictly construed in their favor. However, the legislative history shows that the legislature was fully aware that the amended statute would create a lifelong "look back" for DUI sentencing purposes.

Accordingly, Judge Miller correctly took into account all of Ault's and McDonald's prior DUI convictions when sentencing each of them to their mandatory minimum terms of incarceration. Ault was a second-time DUI offender, and McDonald was a fourth-time DUI offender.

Conclusion

The decisions of the district court are AFFIRMED.

      . AS 28.35.030.

      . Former AS 28.35.030(n) (2000).

      . Former AS 28.35.030(0)(4) (2000).

      . Former AS 28.35.030(n) (2000).

      . Former AS 28.35.030(0)(4) (2000).

      . Id.

      . Former AS 28.35.030(b)(1) and (n)(1) (2000).

      . See Committee Minutes, House Transportation Standing Committee (February 22, 2001).

      . Id.

      . See Committee Minutes, Senate Judiciary Committee (May 5, 2001).

      . Final Report of the DUI Prevention Task Force, Municipality of Anchorage, at 5 (October 30, 2000).

      12. Id. at 8 (emphasis added).

      . Id. at 37.

      . Id.

      15. Committee Minutes, House Judiciary Committee (March 16, 2001) (testimony of Candace Brower) (emphasis added).

      . See Committee Minutes, Committee (May 5, 2001). Senate Judiciary

      . See id.

      . See 2A Norman J. Singer, Sutherland Statutory Construction § 46.06, at 181-90 (6th ed. 2000) ("A statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void, or insignificant, and so that one section will not destroy another unless the provision is the result of obvious mistake or error.").

      . AS 28.35.030(b)(1)(A)-(F).