author: BRYNER, Justice.

text:
    Miguel NUNEZ, Appellant, v. AMERICAN SEAFOODS, Appellee.
    No. S-9875.
    Supreme Court of Alaska.
    July 12, 2002.
    Lanning M. Trueb, Beard, Stacey, Trueb, Jacobsen & Stehle, LLP, Anchorage, for Appellant.
    Michael A. Barcott and Stephen C. Smith, Holmes, Weddle & Barcott, Seattle, Washington, for Appellee.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

BRYNER, Justice.

I. INTRODUCTION

After injuring himself while working aboard the E/T OcEAn Rover in Dutch Harbor, seaman Miguel Nunez sued his employer, American Seafoods, in the Alaska Superi- or Court at Dillingham. He appeals that court's order dismissing his case based on a contractual forum selection clause that required him to sue in United States District Court in Seattle, Washington. We reverse, holding that the employment contract's forum selection clause is invalid because it violates Nunez's right to sue under the Jones Act in any eligible forum.

II. FACTS AND PROCEEDINGS

Miguel Nunez was a seaman employed by American Seafoods on the fishing tender F/T OcEan Rover when he was injured in port at Dutch Harbor in 1999. Nunez was getting the gang way out when a deck rail of the OcEaAn Rover collapsed and Nunez fell twenty feet to the dock below. The fall severely injured Nunez.

American Seafoods had employed Nunez on various fishing vessels beginning in 1996. Nunez signed a fishing agreement with American Seafoods for his work on the OcEan Rover on July 20, 1999. The agreement included a forum selection clause specifying that "any legal action ... involving this contract or any incident or injury occurring aboard the Vessel ... may be brought only in the Federal District Court for the Western District of Washington at Seattle."

Nunez nonetheless filed suit against American Seafoods in superior court at Dilling-ham, alleging admiralty jurisdiction under the federal saving to suitors clause and the Jones Act. American Seafoods moved to dismiss based on the forum selection clause. Superior Court Judge Fred Torrisi heard oral arguments in Dillingham, upheld the forum clause, and granted American Sea-foods' motion to dismiss "without prejudice to refile in the U.S. District Court in Seattle." Nunez appeals.

III. ANALYSIS

A. Standard of Review

This court reviews a grant of a motion to dismiss de novo "Whether [a] forum-selection clause is enforceable is a question of law" to which we apply our independent judgment. We also review de novo whether a fishing agreement complies with relevant federal admiralty law.

B. Discussion

Nunez argues that the forum selection clause is void because it violates federal law. He argues that the Jones Act expressly incorporates the provisions of the Federal Employer's Liability Act (FELA) and that in Boyd v. Grand Trunk Western Railroad Co., the United States Supreme Court expressly interpreted section 5 of the FELA to declare void any contract provision within the Act's coverage that limits an employee's "right to bring suit in any eligible forum." " American Seafoods, citing Carnival Cruise Lines, Inc. v. Shute and M/S BrEmEn v. Zapata Off-Shore Co., counters that the Supreme Court has more recently declared maritime forum selection clauses to be presumptively valid; according to American Seafoods, Nunez has failed to overcome this presumption.

We find Nunez's arguments to be more persuasive. Carnival Cruise Lines and M/S Bremen undeniably recognize that a strong presumption of validity attaches to forum selection clauses under general maritime law. But Nunez filed his complaint under the saving to suitors clause and the Jones Act, not under general maritime law.

As we have noted in previous cases, the "saving to suitors" clause generally "means that a suitor asserting an in person-am admiralty claim may elect to sue in a 'common law' state court through an ordinary civil action. In such actions, the state courts must apply the same substantive law as would be applied had the suit been instituted in admiralty in a federal court."

In the present case, the Jones Act prescribes the substantive maritime law by providing a right of action allowing injured sailors to sue their employers for negligence. The substantive rights conferred by the Jones Act are not the same as those conferred by general maritime law: in enacting the Jones Act, Congress "intended to change the maritime law as stated in The Osceola under which an injured seaman could recover more than his maintenance and cure only in an action based on unseaworthiness and could not recover damages for negligence of master or crew in the navigation or management of the ship." " Hence, "[the substantive rules of maritime law, as modified by the Jones Act, apply[.]" "

The Jones Act accomplishes its goal of giving injured seamen a right of action against their employers by incorporating the rights conferred to railway workers under the FELA; " in relevant part, the Jones Act provides:

Any seaman who shall suffer personal injury in the course of his employment may . maintain an action for damages at law . and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway workers shall apply....

As we recognized in Brown v. State,

The [Jones Act's] language concerning the rights and remedies of railway employees has the effect of extending to sailors the provisions of the [FELA]. Most importantly, sailors have the right to sue shipowners for damages for injury or death "resulting in whole or in part from the negligence of any of the officers, agents, or employees of such [shipowner], or by reason of any defect or insufficiency, due to its negligence, in its ... equipment."

The Jones Act thus effectively places an injured seaman like Nunez in the shoes of an injured FELA railway worker:

[The Jones Act] expressly provides for seamen the cause of action-and consequently the entire judicially developed doctrine of liability-granted to railroad workers by the FELA. The deceased seaman here was in a position perfectly analogous to that of the railroad workers [in a line of cases allowing recovery without a showing of negligence] and the principles governing those cases clearly should apply here.

And as we further recognized in Brown, the Supreme Court's interpretation of section 5 of the FELA in Boyd v. Grand Trunk Western strictly curtails an employer's right to contractually limit a worker's substantive rights:

Section 5 of FELA closely limits the ability of an employer to restrict its own liability: "Any contract, rule, regulation, or device whatsoever, the purpose or intent of
The district courts shall have original jurisdiction, exclusive of the courts of the States, of:
(1) Any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled. which shall be to enable any common carrier to exempt itself from any liability created by this chapter, shall to that extent be void...." The Supreme Court has found that "Congress wanted $ 5 to have the full effect that its comprehensive phraseology implies."

The specific issue considered in Boyd was the validity of a contractual forum selection agreement limiting an injured railroad worker's choice of forum under the FELA.*"" Seetion 6 of the FELA gives injured railway workers the choice of filing their claims in a state or federal forum."" Relying on section 5's categorical prohibition of contracts exempting employers from FELA lability," Boyd invalidated the disputed forum selection agreement, holding that a worker's "right [under section 6] to bring the suit in any eligible forum is a right of sufficient substantiality to be included within the Congressional mandate of § 5" and so could not be restricted by a contractual provision."

Here, the saving to suitors clause gives Nunez a comparable right to select a state or federal forum. Because Nunez stands "in a position perfectly analogous to that of [a railroad worker under the FELA], the seope of this right to file suit in his forum of choice must be gauged under section 5, just as in Boyd. And Boyd dictates the conclusion that section 5 of the FELA requires that Nunez's right to bring suit in "any eligible forum" be deemed substantive and that any contractual provision purporting to limit it be deemed void.

Contrary to American Seafoods' position, nothing in Carnival or M/S undermines Boyd. As already indicated, Carnival and M/S Bremzn establish the presumptive validity of forum selection clauses under general maritime law, whereas Nunez brings his action under maritime law as modified by the Jones Act, which incorporates FELA. Indeed, M/S Bremzrn approvingly cites Boyd when discussing an important caveat to its rule favoring enforcement of forum selection clauses: "A contractual choice-of-forum clause should be held unenforceable if enforcement would contravene a strong public policy of the forum in which suit is brought, whether declared by statute or by judicial decision. See, eg., [Boyd]." *" If anything, then, M/S Bremzn reconfirms the vitality of Boyd's declaration that section 5 of the FELA renders forum selection clauses unenforceable.

Nor does American Seafoods cite any other persuasive authority or reason to establish that Boyd does not apply to a Jones Act claim."" American Seafoods relies heavily on Marinechance Shipping, Ltd. v. Sebastian" and its progeny to fortify its position. But these cases are inapposite, for they involve foreign sailors who were employed by foreign shippers, served on foreign flagged vessels, and were employed under contracts that called for resolution of their legal disputes in other nations; thus, these cases address problems of uniformity and comity that are unique to their international settings and do not purport to apply-or even to meaningfully consider-the Jones Act or the continued vitality of Boyd. Here, by contrast, the facts of Nunez's case lack any significant international dimension, and the Jones Act's incorporation of the FELA squarely controls the case's outcome.

The superior court's decision to enforce Nunez's forum selection clause in the present case rested largely on the court's perception that our recent decision in Bodzai v. Fjord, tacitly found Boyd inapplicable to Jones Act cases by failing to mention that decision. But Bodeai's silence on the point does not support this conclusion.

In Brown v. State, we recognized the continuing vitality of Boyd in the Jones Act context and held that "[slection 5 of FELA closely limits the ability of an employer to restrict its own [Jones Act] HabilityLI1" Nothing presented by American Seafoods has persuaded us to alter this decision.

IV. CONCLUSION

The superior court's order of dismissal is REVERSED.

      . 28 U.S.C. § 1333 (1988).

      . 46 U.S.C.App. § 688 (1988).

      . Hutton v. Realty Executives, Inc., 14 P.3d 977, 979 (Alaska 2000).

      . Bodzai v. Arctic Fjord, Inc., 990 P.2d 616, 618 (Alaska 1999).

      . Bjornsson v. U.S. Dominator, Inc., 863 P.2d 235, 237 (Alaska 1993).

      . 338 U.S. 263, 70 S.Ct. 26, 94 L.Ed. 55 (1949).

      . Id. at 265, 70 S.Ct. 26.

      . 499 U.S. 585, 111 S.Ct. 1522, 113 LEd.2d 622 (1991).

      . 407 U.S. 1, 92 S.Ct. 1907, 32 LEd.2d 513 ° (1972).

      . In dismissing Nunez's complaint, the superior court accepted American Seafoods' position.

      . Carnival Cruise Lines, 499 U.S. at 593-94, 111 S.Ct. 1522; M/S Bremen, 407 U.S. at 10, 92 S.Ct. 1907.

      . The saving to suitors clause is contained within 28 U.S.C. § 1333, which states, in relevant part:

      . Brown v. State, 816 P.2d 1368, 1370 (Alaska 1991) (quoting Shannon v. City of Anchorage, 478 P.2d 815, 818 (Alaska 1970)) (footnotes omitted).

      . Brown, 816 P.2d at 1372 (citing 46 U.S.C.App. § 688(a) (1988)).

      . Grant Gimore & CHarues L. Brack Jr, Tas Law or Apmirarty 325 (2d ed.1975) (footnote omiited) (citing, among other cases, The Osceola, 189 U.S. 158, 23 S.Ct. 483, 47 L.Ed. 760 (1903)).

      . Brown, 816 P.2d at 1371 (citing Shannon, 478 P.2d at 818).

      . 45 U.S.C. §§ 51-60 (1988).

      . 46 U.S.C.App. § 688(a).

      . Brown, 816 P.2d at 1372 (internal citations omitted) (quoting 45 U.S.C. § 51 (1988)).

      . Keman v. Am. Dredging Co., 355 U.S. 426, 439, 78 S.Ct. 394, 2 L.Ed.2d 382 (1958) (emphasis added).

      . Brown, 816 P.2d at 1373 (quoting, respectively, 45 U.S.C. § 55 (1988) and Boyd v. Grand Trunk W. RR. Co., 338 U.S. 263, 265, 70 S.Ct. 26, 94 L.Ed. 55 (1949)).

      . Boyd, 338 U.S. at 263, 70 S.Ct. 26.

      . Id. at 265, 70 S.Ct. 26; 45 U.S.C. § 56.

      . 45 U.S.C. § 55.

      . Boyd, 338 U.S. at 265, 70 S.Ct. 26.

      . Kernan, 355 U.S. at 439, 78 S.Ct. 394.

      . 407 U.S. at 15, 92 S.Ct. 1907. This passage from M/S Bremurw was also quoted approvingly by this court in Volkswagenwerk, A.G. v. Klippan, GmbH, 611 P.2d 498, 504 (Alaska 1980).

      . American Seafoods does attempt to distinguish Boyd on its facts by noting that it involved a post-injury forum selection contract. But nothing in Boyd indicates that the Court gave any weight to the timing of the contractual provision. And in any event, our case law suggests that a pre-injury contractual compromise of Jones Act rights should be deemed presumptively more questionable, not less questionable, than a post-injury compromise. See Brown, 816 P.2d at 1376.

      . 143 F.3d 216 (5th Cir.1998).

      . See, eg., Afram Carriers, Inc. v. Moeykens, 145 F.3d 298 (5th Cir.1998); Sabocuhan v. Geco-Prakla, 78 F.Supp2d 603 (S.D.Texas 1999); Valle v. Chios Venture Shipping, 1999 WL 155942 (E.D.La., March 17, 1999); Lejano v. KS. Ban-dak, 705 $.2d 158 (La.1997).

      . American Seafoods also relies on the United States District Court's decision in Willard v. The Fishing Company of Alaska, 1995 A.M.C. 1358 (D.Alaska). But Willard, too, is inapposite. There, several injured Jones Act seamen employed by a Seattle based company filed suit in the United States District Court in Anchorage; their employer relied on contractual choice-of-forum clauses to transfer venue to federal court in Washington. Because the seamen opted to bring their suits in a federal forum rather than in a state forum, the district court in Willard correctly recognized that the cases presented a question of change of venue rather than a change of forum and were therefore governed by the Jones Act's internal venue provisions-as opposed to the forum provision of the saving to suitors clause. Id. at 1359-60. As the district court also correctly observed in Willard, the Supreme Court has construed the Jones Act's venue clause to have no substantive significance. Id. at 1360. Moreover, because under the facts of Willard the Jones Act's venue clause would have required the plaintiffs in that case to file their action in Washington-the employer's residence-rather than Alaska, see 46 U.S.C.App. § 688(a), the plaintiff's election to file in a federal forum in Alaska could not have been deemed to be the selection of an "eligible forum" under Boyd.

      . 990 P.2d 616 (Alaska 1999).

      . In Bodzai we considered the validity of a forum selection clause that required Bodzai, an injured seaman, to file any claims arising "under the terms" of his employment contract in Washington. Bodzai asserted three separate admiralty claims in state court, only one of which was a Jones Act claim. Id. at 617. As an argument common to all three claims, Bodzai asserted that none arose "under the terms" of his employment contract and, consequently, none was barred by the forum selection clause. Id. at 618. In contrast, although Bodzai alternatively argued that the forum selection clause was barred by Boyd's prohibition against contractual limitations of liability, that argument only applied to his Jones Act claim. In deciding Bodzai, we addressed and resolved all three claims on their common issue, holding that none of the claims arose under the terms of Bodzai's contract. Resolving the entire case on that basis left us no occasion to reach Bodzai's alternative theory for disposing of the Jones Act claim-that the forum selection was precluded by Boyd. In that context, then, our silence concerning Bodzaf's alternative theory signaled no hidden view as to its merits.

      . 816 P.2d 1368, 1373 (Alaska 1991).


source: Caselaw Access Project

author: EASTAUGH, Justice.

license: Public Domain

text:
    Donald H. MARTIN, Appellant, v. Melinda K. MARTIN, Appellee.
    No. S-9837.
    Supreme Court of Alaska.
    July 19, 2002.
    Rehearing Denied Sept. 5, 2002.

      Peggy A. Roston, Law Office of Peggy A. Roston, Anchorage, for Appellant.
    Barbara A. Norris, Law Office of Barbara A. Norris, Anchorage, for Appellee.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

EASTAUGH, Justice.

I. INTRODUCTION

A husband appealing the property division in a divorcee contends that the trial court erred in finding that the parties intended to treat the husband's premarital business as marital property. We affirm, because the husband used marital funds to finance the business and because, at the husband's request, the wife made substantial uncompensated contributions to the business during the fifteen-year marriage. We also affirm the contested property valuations, but reverse the award of the husband's premarital camera to the wife.

II. FACTS AND PROCEEDINGS

Melinda and Donald Martin met in 1979, began living together in 1980, and married in 1985. Don began managing his sister's Anchorage health food store, Roy's Health Foods (Roy's), in 1971. Don purchased the store for $140,000 in 1980. Don has been a full-time, salaried employee of Roy's since purchase. Melinda has worked full-time for the State of Alaska since 1978. Melinda also worked at Roy's on a part-time basis from 1980 to 1999. Melinda and Don separated in January 1999 and divorced in October 2000.

In dividing the property during the divoree, the trial court determined what property was available for distribution, valued that property, and divided it "50/50" between the parties. The court characterized Roy's as marital property. Don argues on appeal that Roy's is his separate property, not subject to equitable division by the court. Don also disputes the court's valuation of the parties' weekend cabin on the Kenai Peninsula, undeveloped land in Arizona, and Alaska Airlines frequent flier mileage accounts. Finally, Don argues that the court abused its discretion by failing to award him a portion of Melinda's state employee retirement account and by awarding his Nikon camera to Melinda.

IH. STANDARD OF REVIEW

Equitable division of marital assets is a three-step process: determining what property is available for distribution, assessing the property's value, and allocating the property equitably. We review the trial court's characterization of property as separate or marital for abuse of discretion Whether the trial court applied the correct legal rule in exercising its discretion, however, is a question of law that we review de novo using our independent judgment Whether the court correctly valued the assets to be divided is a question of fact that we review for clear error Finally, we review the court's ultimate distribution of the assets under an abuse of discretion standard, and will only reverse if the distribution is clearly unjust.

IV. DISCUSSION

A. The Court Did Not Err in Holding that Roy's Health Foods Was Marital Property.

Because Don purchased Roy's Health Foods prior to marriage, Roy's would ordinarily be considered his separate property, not subject to equitable division. However, under the doctrine of transmutation, separate property can become marital property if the parties so intend. The trial court found that "[the words and acts of the parties before and during marriage establish their intent that the health foods store was a family business." (Emphasis added.) The court accordingly characterized Roy's as marital property. Don argues that despite the trial court's express finding of intent, the court improperly relied on a mixture of legal theories to reach its conclusion. Because the evidence supports the court's express finding of intent, we affirm the court's characterization of Roy's as marital.

Don argues that many of the court's findings supporting its conclusion are not relevant to the parties' intent. Indeed, the two findings immediately preceding the trial court's finding that the parties intended to treat Roy's as a family business support an active appreciation theory rather than a transmutation theory." The court noted that Don paid almost $117,000 of the promissory note on Roy's through his marital efforts and reasoned that the resulting equity increase should be considered marital property, just as it would be if Don had earned this money as take-home pay:

18. Almost $117,000 out of $140,000 purchase price of the store was paid during the marriage. This is money that [Don] generated by spending time and energy on the store. He spent his marital employment time and energy creating financial gain which he used to buy an asset. If he had not used his employment time and energy to buy the store, he would reasonably have been expected to use that time and energy generating income that would have been marital [Il.e., [Don] spent his marital time and energy generating resources to pay for approximately 80% of what he claims is a non-marital asset. '
19. There is no evidence that defendant was employed other than in the business. There is evidence that income from the business was used to support the family unit. To find that the business was non-marital would ... [be] contrary not only to a preponderance of the evidence in the case, but also contrary to the legal view of marriage as an economic unit.

These findings do not directly bear on whether the parties intended to treat Roy's as marital property. Rather, they suggest that the appreciation in Roy's should be treated as marital property because it derived from Don's marital efforts.

Don further asserts that the court expressly and incorrectly disavowed any reliance on the parties' intent in reaching its conclusion. In the paragraph following its finding of intent; the court qualified its conclusion by stating that the parties' intentions were not entitled to much weight:

21. The "parties' intention" as an element of determining whether a business purchased before marriage became marital canmot reasonably be given the same weight or meaning as the "parties' intent" in determining whether a business transaction occurred between non-marital partners because spouses are not dealing with the business in an arms-length transaction.

(Emphasis added.) Melinda responds. that the court did not reject the intent standard, but merely noted that the standard should be applied more liberally in the context of a marital relationship. Both Don and Melinda are partially correct; the court properly distinguished the context of marriage from that of typical business deals, but erroneously de-emphasized the significance of the parties' intent in applying the transmutation doctrine.

Don argues that these are the same errors that caused us to reverse in Nicholson v. Wolfe. We noted in that case that the trial court erroneously relied upon equitable considerations in concluding that the husband's premarital business should be considered marital property:

The trial court did not find that the North-star assets were marital because the parties intended to treat them as such. Instead, it found that it would be unfair to treat the property as separate, since both parties had contributed significant efforts to the business during the marriage.""

We held that "[wiithout finding that the parties intended to convert [the husband's premarital business] to marital property, the trial court could not properly consider the business to be a marital asset." Accordingly, we vacated the trial court's decision and remanded with instructions to treat the husband's premarital business as separate property "unless it expressly finds an act or acts that demonstrate the parties' intent to treat the property as marital."

Melinda argues that the court satisfied Nicholson by making an express finding of intent and by noting several specific acts evinceing this intent. The trial court found that marital funds were used to finance the business and that Melinda had worked at the store for many years without pay.

As noted above, the trial court "runs together" the doctrine of transmutation, which is based on the parties' intent, with the doe-trine of active appreciation, which is based on equitable considerations. These theories are analytically distinct, and should be treated as such. But it would be unduly formalistic to reverse the trial court on this basis if the record actually supports the court's express finding of intent. Accordingly, we consider whether the court abused its discretion in finding that the parties intended to treat Roy's as a "family business."

Don argues that the record does not support the trial court's finding that the parties intended to treat Roy's as marital property. Don first argues that Melinda did not play a substantial role in the business during the marriage. The court found, however, that Melinda "contributed effort and energy to the business ... during the marriage" and worked at the store without pay "in the early and mid-1990s."

In Chotiner v. Chotiner we summarized the types of conduct that might evince an intent to convert separate property. Of particular pertinence here, we noted that separate property can become marital when the non-owner spouse lends her credit to improve the property or otherwise "devote[s] substantial efforts to its management, maintenance, or improvement." ° Conversely, we have repeatedly held that non-substantial efforts are insufficient to demonstrate the requisite intent."

Don argues that Melinda's level of involvement in the store dropped appreciably before the marriage in 1985. Nonetheless, even by the most conservative estimate she logged hundreds of hours at the store and at trade conventions over the parties' fifteen-year marriage. More importantly, she was only paid for a fraction of that time. The court found that Melinda only began receiving paychecks in 1997, after a hiatus of at least seven years, so that she could obtain social security benefits and participate in the corporation's profit-sharing plan. The majority of Melinda's work contributions, therefore, went directly to the earned surplus of the corporation.

Melinda further testified that Don demanded that she work at the store. She testified that she did so without pay because she considered it her marital obligation to help out with the family business. Although Melinda's hours at the store decreased once she moved to the day shift of her state job, she testified that she still helped out when she could, or when Don was short-staffed. Melinda testified that Don "said a couple of times, 'We have a goldmine here, we have to take care of it" " Don's failure to record her time or compensate her for her time and Melinda's willingness to fill in whenever she could without pay strongly suggest that both parties intended to treat the store as a joint enterprise.

Don alternatively argues that Melinda's contributions were not substantial because she did not play a management role at Roy's. He asserts that her tasks were mostly clerical and janitorial, Melinda, on the other hand, argues that she trained employees, often represented the store at trade conventions, and acted as decision-maker while Don was away on vacation. It is not necessary to resolve this dispute, however, because we have never held that the non-owner spouse must have equal decision-making authority to demonstrate an intent to hold property jointly. In Lundquist v. Lundquist we affirmed the trial court's finding that the parties intended to treat the husband's fishing boat as a joint asset where the wife testified that she worked on the boat as a deck hand, shopped and cooked for the crew, and tended to the business while her husband was out fishing. Like the wife in Lundquist, Melinda contributed substantial efforts that helped maintain the business and contribute to its growth. Whether these efforts were primarily oriented towards non-managerial tasks is irrelevant-the salient fact is that they substantially contributed to the business.

This case also resembles Lundquist in that marital funds were used to finance the business. Melinda documented checks totaling $31,000 written from marital accounts to Roy's in the 1990's. Don admitted to writing the checks. Accordingly, the court found that "marital funds were used in the business." Don disputes this finding, arguing that the checks were "probably" just loans to Roy's from the profit-sharing plan in which both Don and Melinda participated and that the marital bank accounts were just conduits for the loans.

Don explains that participants in the profit-sharing plan were allowed to borrow up to fifty percent of their vested balance. Because the corporation was not allowed to borrow from the plan directly, Don would borrow from the plan and loan the borrowed funds to the corporation by writing a check from a personal account. The corporation would pay him back, and he would in turn reimburse the profit-sharing plan. In Don's accountant's words, the transactions were "a wash."

But the fact that a loan is repaid does not change the nature of the transaction. Calling a repaid loan "a wash" belies the element of risk associated with every loan. Don's vested balance in the profit-sharing account was a product of his marital efforts, and therefore marital property. Accordingly, Melinda's equitable share of Don's marital efforts was placed at risk by this lending arrangement. Furthermore, Don's accountant admitted that at least one of the loans had not been repaid as of the last accounting before trial. The court's finding that marital funds were used in the business is not clearly erroneous.

We have never reversed a trial court's finding of intent to transmute when the non-owner spouse made uncompensated contributions to the premarital owner's enterprise of the magnitude present in this case. Don disputes Melinda's characterization of her contributions, but we will not reverse the court's implicit decision to credit Melinda's testimony over his. The record adequately supports the main thrust of Melinda's argument-that she assumed that she was working for the family business and that Don either shared that belief or opportunistically allowed her to persist in that belief. Accordingly, the court did not abuse its discretion by finding that Don and Melinda intended to treat Roy's as joint property.

B. The Court's Disputed Valuations Are Not Clearly Erroneous.

1. The Kenai cabin

The trial court valued the parties' Kenai cabin at $108,500. This was the value attributed in a broker's estimate Don requested in anticipation of litigation. The court noted that the parties purchased the cabin for $85,000 in 1995 and spent just over $27,000 on improvements. In rejecting Don's expert's appraisal obtained after Don rejected the broker's estimate, the court found:

It is unreasonable and therefore, not ered-itable that after the parties spent $27,000 improving a home on the Kenai, it decreased in resale value to less than the purchase price. [Melinda's] contention that $108,500 is FMV for the Kenai house and guest cabin is more credible than Defendant's self-serving appraisal obtained at his behest after rejecting a broker letter re: resale value.

Don argues that the court's finding is clearly erroneous because the broker's estimated value was just "a starting place to list the property for sale and not the present value of the property." Don also notes that his expert appraised the property at $91,000, a value greater than the original purchase price. Melinda argues that Don simply shopped for a lower value after he was dissatisfied with the broker's conclusion because he knew that he would end up owning the cabin, and therefore stood to gain by obtaining the lowest possible valuation. The trial court weighed the credibility of the witnesses and clearly agreed with Melinda. The court's insignificant error regarding the appraisal notwithstanding, its conclusion was based on professional analysis (the broker's estimate) and its evaluation of Don's motives in obtaining a second opinion. This finding is clearly within the trial court's wide latitude in finding facts, and is not clearly erroneous.

2. The Mojave property

The trial court accepted Melinda's submission of a 1998 appraisal valuing one of the parties' undeveloped Arizona parcels at $1,900. Don argues that the value of this property is actually $1,166, a figure he determined by writing to the Mojave Land Owners Association. He did not submit any doe-umentary evidence of this correspondence. The trial court's decision to rely on the appraisal obtained during the marriage rather than Don's unsupported assertion at trial is not clearly erroneous.

3. The Alaska Airlines mileage accounts

The trial court accepted Melinda's accountant's testimony that the parties' Alaska Airlines mileage was worth two cents per mile. Don argues that because the parties cannot actually sell their mileage, it has no fair market value. Melinda correctly responds that market transferability is not a prerequisite to determining value for property division purposes. Fair market value is defined as the price a willing buyer would pay to purchase the asset on the open market from a willing seller. Melinda's expert testified that a buyer could purchase Alaska Airlines mileage for two cents per mile. The fact that Don or Melinda cannot sell their mileage does not preclude the court from determining what price a buyer would pay for their mileage. Put another way, an asset need not be marketable if the court can objectively determine that it has value to its owner. Thus, the court's finding is not clearly erroneous.

C. The Court Did Not Err in Awarding All of Melinda's State Retirement Account to Melinda.

The trial court awarded Melinda her entire state retirement account. Don argues that the court abused its discretion by not awarding him a nominal amount of this account so that he would be eligible to purchase major medical benefits under AS 39.35.535(d). Assuming that Don is correct that a nominal award from Melinda's state retirement account would make him eligible for coverage, we hold that the court did not abuse its broad discretion in denying him any portion of the account. Don offered no evidence at trial that he had no other means of obtaining health insurance, nor does he offer any argument to this effect on appeal. Don essentially argues that he would substantially benefit from such an award at no cost to Melinda. But we will only reverse the trial court's disposition of the marital estate if the court has abused its discretion and produced a clearly unjust result. Because there is no evidence of such abuse or injustice here, we affirm the court's award.

D. It Was Error To Award the Nikon Camera to Melinda.

Finally, Don argues that the court abused its discretion by awarding Melinda the Nikon camera he owned before the marriage. Melinda argues that the court must have found that the parties intended the camera to become joint property. Melinda testified that she used the camera extensively throughout the marriage, that Don consented to this use, and that he rarely used it. But consent to use, without more, is not enough to evince an intent to transmute separate premarital property. Accordingly, it was error to characterize the camera as marital property, and an abuse of discretion to award it to Melinda. n

v. CONCLUSION

For these reasons, we VACATE the award of the Nikon camera to Melinda and REMAND so that the camera can be reclassified as non-marital property. We otherwise AFFIRM the findings and decree on all points.

      . Don formed a closely-held corporation to make the purchase. Don also paid his sister $30,000 to execute a non-competition agreement.

      . Lundquist v. Lundquist, 923 P.2d 42, 46-47 (Alaska 1996); Wanberg v. Wanberg, 664 P.2d 568, 570 (Alaska 1983).

      . Lundquist, 923 P.2d at 47.

      . Brown v. Brown, 947 P.2d 307, 308 (Alaska 1997).

      . Alaska R. Civ. P. 52(a) Doyle v. Doyle, 815 P.2d 366, 368-69 (Alaska 1991).

      . Brotherton v. Brotherton, 941 P.2d 1241, 1244 (Alaska 1997).

      . AS 25.24.160(a)(4) permits courts to divide property "acquired only during marriage."

      . Nicholson v. Wolfe, 974 P.2d 417, 423 (Alaska 1999) (citations omitted). Intent is demonstrated through the words and actions of the parties during marriage. Sampson v. Sampson, 14 P.3d 272, 277 (Alaska 2000).

      . The parties stipulated that the equity in Roy's at the valuation date was $125,000. The parties also stipulated that the balance on the promissory note used to purchase Roy's was almost $117,000 at the time of marriage, and that the note was completely paid by 1994.

      . Under the doctrine of active appreciation, any increase in value of separate property owing to marital efforts is considered marital property subject to equitable division. See Lowdermilk v. Lowdermilk, 825 P.2d 874, 877-78 (Alaska 1992) (holding that increase in value of husband's premarital business owing to husband's "contributions of time and energy" during marriage was marital property); Brett R. TurnER®, Eoumsce Dis-Trisution or Property § 5.22 (2d ed.1994) (explaining doctrine and collecting cases).

      . 974 P.2d 417 (Alaska 1999).

      . Id. at 423.

      . Id. (citation omitted).

      . Id. at 424.

      . See Sampson, 14 P.3d at 277 (noting that trial court's analysis "runs together the doctrines of transmutation of separate property into marital property and invasion of separate property"); Turner, Eoumasts Distrmsurion § 5.22 (explaining equitable basis of active appreciation doctrine).

      . Sampson, 14 P.3d at 277 (noting that equitable considerations have no direct bearing on whether parties intended to treat property as part of marital estate).

      . Green v. Green, 29 P.3d 854, 857 (Alaska 2001) (citation omitted).

      . 829 P.2d 829, 832-33 (Alaska 1992).

      . Id.

      . E.g., Nicholson, 974 P.2d at 424 (holding wife's limited help with bookkeeping and answering phone insufficient to support implicit finding of intent to hold husband's premarital business jointly); Brooks v. Brooks, 733 P.2d 1044, 1054 (Alaska 1987) (holding wife's "limited maintenance and management tasks" relating to apartment complex did not "rise to the level of active interest in the ongoing maintenance, management and control of the property necessary to demonstrate an intent to hold the apartment complex jointly"); Wanberg, 664 P.2d at 573 & n. 19 (holding wife's minor efforts at remodeling rental property and collecting rent insufficient to demonstrate intent to transmute property); see also McDaniel v. McDaniel, 829 P.2d 303, 306 (Alaska 1992) (Participation by both spouses in the management and maintenance of the property will not automatically transform pre-marital into marital property. Rather, the participation must be significant and evidence an intent to operate jointly.").

      . From 1980 to 1983 Melinda worked at Roy's approximately fifteen to twenty hours per week. Her hours dropped to approximately four hours per week after she switched to the day-shift in 1983, and dropped further after the parties purchased a weekend cabin on the Kenai Peninsula in 1995.

      . Melinda supports this finding by noting that Don did not keep track of Melinda's hours, so that the paychecks could not have been tied to the amount of labor she performed.

      . While Melinda's own evidence and testimony suggest that her tasks were generally non-managerial, several employees testified that she was second in command to Don at the store.

      . 923 P.2d 42, 47 (Alaska 1996).

      . Id. Don argues that Lundquist is distinguishable because the wife in that case quit other employment to work on her husband's fishing boat. Assuming this to be correct, we did not consider this fact significant enough to mention in our opinion in Lundquist, and we did not rely on it in reaching our conclusion.

      . See id. (noting wife's claim that marital funds were used to make improvements to boat as well as to pay off loan on boat).

      . In this regard, the case at bar is distinguishable from Money v. Money, in which we held that premium payments on a separate life insurance policy made from a marital account were exactly offset by policy dividends, and that therefore the wife could not claim to have contributed any funds toward maintaining the policy. 852 P.2d 1158, 1162-63 (Alaska 1993).

      . Plan participants are required to make contributions based upon a percentage of their compensation. Therefore, Don's plan balance is simply another form of income, no different for purposes of equitable division from Melinda's state retirement account.

      . See Lundquist, 923 P.2d at 47 (noting that trial court properly chose to believe wife's version of events).

      . Turner, Distersurion § 7.03, at 505.

      . AS 39.35.535(d) provides:
      [A] member's former spouse who receives a monthly benefit under a qualified domestic relations order is entitled to receive major medical insurance coverage if the former spouse
      (1) elects the coverage within 60 days after the first monthly benefit paid under the order is mailed ...; and
      (2) pays the premium established by the administrator for the coverage.

      . Brotherton v. Brotherton, 941 P.2d 1241, 1244 (Alaska 1997).


author: EASTAUGH, Justice, EASTAUGH, Justice,

text:
    ALASKANS FOR EFFICIENT GOVERNMENT, INC., an Alaskan non-profit corporation, Robert J. Monson and Mark Chryson, Appellants, v. STATE of Alaska and Fran Ulmer, in her Official Capacity as the Lieutenant Governor of Alaska, Appellees.
    No. S-10633.
    Supreme Court of Alaska.
    Aug. 7, 2002.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   EASTAUGH, Justice,

with whom CARPENETI, Justice, joins, dissenting.

Order

IT IS ORDERED:

1. This expedited appeal concerns a challenge to the lieutenant governor's ballot summary for an initiative proposing to relocate state legislative sessions to the Matanuska-Susitna Borough. In August 2001 sponsors of the relocation initiative filed a complaint with the superior court seeking a declaratory judgment that the Heutenant governor's ballot summary was neither "true" nor "impartial" as required by AS 15.45.180(a) The superior court granted summary judgment in favor of the state, ruling that the sponsors had failed to show that the summary was either untrue or biased. The sponsors appeal. Because we find the last sentence of the summary to be inaccurate and potentially misleading, we reverse and remand with directions to amend the summary's language.

2. The relocation initiative has two major features. First, it would amend AS 24.05.090, which requires legislative sessions to be held in the state capital, Juneau. The initiative would move legislative sessions from the capital to a location within the Matanuska-Susitoa Borough (or in Anchorage until facilities in the Mat-Su Borough are available). Second, the relocation initiative would amend the "FRANK Initiative," an initiative enacted in 1994 as Ballot Measure 5 and currently codified in AS 44.06.050-44.06.060.

8. The FRANK initiative requires that, before state money may be expended to relocate the capital or the legislature, voters must approve all bondable costs of the move; it also provides that the legislature shall establish a commission to determine costs required by an initiative or law that would relocate any present functions of state government; and it requires this commission to determine all bondable and total costs of relocation. A prefatory section of the FRANK initiative describes its several purposes, including "to guarantee to the people their right to know and to approve in advance all costs of relocating the capital or the legislature."

4. The relocation initiative would change these provisions of the FRANK initiative-including its statement of purposes-by deleting references to relocation of the legislature, thereby making it possible to relocate the legislature without appointing a commission, without having the commission determine the bondable and total costs of the move, and without requiring the voters to approve the total bondable costs before money is spent on the move.

5. Alaska Statute 15.45.180 requires the lieutenant governor, with the assistance of the attorney general, to prepare a "true and impartial" ballot summary for initiatives; the attorney general proposed the following summary for the relocation initiative:

This bill would move all sessions of the state legislature to the Matanuska-Susitna (Mat-Su) Borough. If facilities fit for these sessions cannot be found in that borough, sessions would be held in Anchor- - age until facilities are available in the Mat-Su Borough. The bill would repeal the requirements that before the state can spend money to move the legislature, the voters must know the total costs as determined by a commission, and approve a bond issue for all bondable costs of the move.

6. The initiative's sponsors did not object to the summary's first two sentences but took issue with its final sentence, which summarizes the changes the relocation initiative would make to the FRANK initiative. The sponsors maintained that this sentence is neither true nor impartial because it emphasizes how the relocation initiative would change one of the FRANK initiative's several purposes, while neglecting. to describe aceu-rately how the FRANK initiative itself would actually be changed. "This language is not neutral," the sponsors complained, "in that it has the effect of stating that the proponents of the initiative want to keep the costs of the legislative move secret."

7. The lieutenant governor approved the summary as initially proposed. The superior court affirmed the lieutenant governor's decision. The sponsors now appeal.

8. Renewing their initial objection to the proposed summary, the sponsors complain on appeal that "[the ballot language makes it appear that the sponsors are trying to prevent the voters from knowing the costs of the move." The sponsors suggest that this appearance is misleading and that the summary's last sentence conveys this appearance in two ways. First, the sponsors claim that the summary overemphasizes the relocation initiative's effect on only one of the FRANK initiative's stated purposes-guarantecing that voters have a right to know the costs of a move-by saying that the initiative would repeal the requirement that the voters "must know the total costs" of the move. In the sponsors' view, the summary should ignore proposed changes to the FRANK initiative's purpose section "because the purpose section is not an enactment of positive law, but is merely legislative history." Second, the sponsors contend, the summary too narrowly focuses on only one of the ways in which the relocation initiative would amend the FRANK initiative: the summary states that the initiative would repeal the requirement that voters approve bondable costs of the move but fails to make clear that the initiative also would repeal the requirements that a commission would be established and that 'this commission would have to determine the total and bondable costs of relocation.

9. In response, the state argues that the summary's focus on removing the people's right to know the costs of the move is neither misleading nor biased. The state contends that this focus is accurate because the "voter's right to know the total costs" of relocation is one of the specific purposes of the FRANK initiative that the relocation initiative would repeal. Further, the state asserts, the focus is impartial because the relocation initiative's provisions repealing the existing requirements that the costs of the move be determined by a commission and then approved by voters would indeed have the effect of "removiing] the guarantee that the voters know the costs of a legislative session move." Finally, the state points out that the summary's language describing the FRANK initiative's purpose of guaranteeing people the right to know the cost of relocating the legislature simply tracks the language included in the FRANK initiative's ballot summary, which presumably qualified as a true and impartial description when the FRANK initiative was proposed in 1994.

10. In reviewing the adequacy of a lieutenant governor's ballot summary we apply a "deferential standard of review." This means that we will not invalidate the summary simply because we believe a better one could be written; instead, "the lieutenant governor's summary [will] be upheld unless we [cannot] reasonably conclude that the summary [is] impartial and accurate." And we must place "[the burden ... upon those attacking the summary to demonstrate that it is biased or misleading."

11. We have addressed the adequacy of a lieutenant governor's ballot summary in only one previous case, Burgess v. Alaska Lieutenant Governor. There, we turned to other jurisdictions to help delineate attributes of the "true and impartial" summary required by AS 15.45.180. We agreed with the Colorado Supreme Court that a petition summary must be "a fair, concise, true and impartial statement of the intent of the proposed measure. The summary may not be an argument for or against the measure, nor can it be likely to create prejudice for or against the measure." We also quoted approvingly the Arkansas Supreme Court's statement that a petition summary should be "complete enough to convey an intelligible idea of the scope and import of the proposed law, and that it ought to be free from any misleading tendency, whether of amplification, of omission, or of fallacy, and that it must contain no partisan coloring." And finally, we drew upon a definition of "summary" proffered by the Supreme Judicial Court of Massachusetts, which states, in relevant part:

The word carries with it the idea that, however much the subject matter may be condensed, the sum and substance of it must remain. No doubt details may be omitted or in many instances covered by broad generalizations, but mention must be made of at least the main features of the measure. And the summary must be "fair"; that is to say, it must not be partisan, colored, argumentative, or in any way one-sided, and it must be complete enough to serve its purpose of giving the voter who is asked to sign a petition or who is present in a polling booth a fair and intelligent conception of the main outlines of the measure.[]

12. Our discussion of truthfulness and impartiality in Burgess, as well as more recent discussion of the issue in decisions by other courts, indicates that the basic purpose of the ballot summary is to enable voters to reach informed and intelligent decisions on how to cast their ballots-decisions free from any partisan suasion. To accomplish this goal the summary must describe "the main features of the measure" and be "complete enough to serve its purpose"; and it must do so without being "partisan, colored, argumentative, or in any way one-sided." The summary need not recite every detail of the proposed measure; but neither may it omit a measure's more important points, for "if the information would give the elector 'serious grounds for reflection' it is not a mere detail, and it must be disclosed."

18. Applying these principles to the merits of this case, we reject at the outset the sponsors' initial contention that it is impermissible for the summary to describe changes that the relocation initiative would make to the FRANK initiative's purpose seetion. As the state correctly notes, the relocation initiative actually does propose to amend the purpose section; accordingly, it is neither per se untrue nor biased for the summary to describe these amendments, so long as the description itself is accurate and unbiased when read in the context of the summary as a whole. The critical question, then, is not whether the summary's second sentence permissibly addresses the FRANK initiative's purposes: rather, it is whether the sentence describes the relocation initiative's main effects on the FRANK initiative in a way that omits nothing of material importance and is neither partisan nor one-sided.

14. Turning to this question, we find merit in the sponsors' primary claim that the summary falls short of the mark; for in our view, the summary fails to adequately describe the actual changes that the relocation initiative proposes to make and casts the initiative's purpose in an unnecessarily negative light.

15. As already noted, the FRANK initiative currently provides that, before state money could be expended on moving the legislature, a commission would have to be appointed; it would need to determine the total and bondable costs of the move; and the voters would then need to approve the total bondable costs of the relocation. In addition to negating the FRANK initiative's statement of purpose insofar as it affects relocation of the legislature, the relocation initiative would repeal each of these affirmative requirements. Yet the summary de-seribes only one of these changes: "The bill would repeal the requirements that before the state can spend money to move the legislature, the voters must know the total costs as determined by a commission, and approve a bond issue for all bondable costs of the move." Apart from prominently stating the relocation initiative's negative effect on the existing law's purpose, this summary describes explicitly only the last of the three affirmative requirements that the initiative proposes to repeal (voter approval), while compressing the first and second (the need to appoint a commission and the need to have that commission determine the costs of relocation) into a brief, inferential mention-"as determined by a commission."

16. This eryptic phrase is ambiguous and does not fairly describe the initiative's main features When combined with its concrete statement describing the initiative's repeal of the existing law's purpose of revealing the costs of a move to the electorate, the summary's past-tense phrasing-"as determined by a commission"-can easily be read to mean that an existing commission has already determined the costs and that the initiative seeks to keep them secret. And conversely, when read together with this abbreviated statement of the initiative's effects on the existing law's actual requirements, the summary's prominent attention to the FRANK initiative's purpose and its description of that purpose as a beneficial imperative-'"the voters must know the total costs" of a move-hardly seem neutral. In short, the current summary is potentially misleading and does not accurately and fairly describe the initiative. Accordingly, we conclude that it is not true and impartial.

17. We further conclude, however, that the summary's last sentence could be revised to reflect a true and accurate statement of the relocation initiative by substituting "must be informed of" for "must know" and "as would be determined by" for "as determined by." With these changes, the last sentence would read: "The bill would repeal the requirements that before the state can spend money to move the legislature, the voters must be informed of the total costs as would be determined by a commission, and approve a bond issue for all bondable costs of the move." (Proposed changes emphasized.) If the summary's last sentence were so revised, we believe that it would not lend itself to being read as taking a negative view of the initiative's purpose and would describe with minimally adequate clarity the initiative's effects of repealing the existing law's express provisions requiring that, before money is spent on relocating the legislature, a commission would need to be appointed; that it would have to determine the total and bonda-ble costs of the move; and that the voters would then be required to approve the move's bondable costs.

18. For these reasons, we find that the ballot summary fails to meet the requirements of AS 15,45.180. We therefore REVERSE the superior court's summary judgment order, and REMAND to the Heutenant governor with directions to revise the summary as necessary to comply with this order.

Entered at the direction of the court.

EASTAUGH, Justice,

with whom CARPENETI, Justice, joins, dissenting.

I would affirm. Applying the appropriate deferential standard of review to the language of the ballot summary and considering the appellants' arguments, I think that the language of the ballot summary satisfies article XI, section 8 of the Alaska Constitution, AS 15.45.090, and AS 15.45.180, and that the changes this court proposes are, at most, unnecessary improvements.

Our review is deferential Our deference should derive in part from the expertise inherent in developing language that adequately summarizes ballot propositions and that voters can easily understand. The responsibility for developing that language is vested by constitution and statute in the Heutenant governor. We should assume that the executive branch by exercising that responsibility has developed some institutional skill in preparing summaries. In comparison, the judicial branch only infrequently reviews these summaries Alaska Statute 15.60.005 strongly implies that technical expertise is involved in crafting summaries. That statute specifies a readability test for certain election materials, including this ballot summary, and precludes the courts from enjoining the conduct or results of an election for a failure to satisfy the test. The current proposition apparently satisfies this statute. This court does not even attempt to determine whether the summary as modified will satisfy AS 15.60.005, and instead leaves it to the lieutenant governor to apply that statute on remand. The expertise the executive branch will bring to that exercise helps confirm why our review should be deferential.

The court's order acknowledges the deferential standard of review, but it is hard to square that acknowledgment with the modifications the order proposes. They appear, at best, to be mere improvements, not changes essential to remedy any alleged defects. They certainly do not adopt the intrusive (and unjustified) changes the appellants propose. The subtlety of the court's changes suggests that the court is not being as deferential as it should be.

As to the merits, I agree with the decision of the superior court. The ballot summary focuses on the core effect of the present proposition: it will overturn the fundamental purpose of the FRANK Initiative. That fundamental purpose is codified as AS 44.06.050, and was not merely part of the initiative's legislative history. It guarantees to the people "their right to know and to approve in advance" all costs of relocating the capital or the legislature. The current ballot summary approved by the lieutenant governor appropriately described this core right and made it a prominent part of the summary.

The objections raised by Alaskans for Efficient Government, Inc., are unpersuasive. The changes they propose would make the current summary markedly less truthful and less impartial. Their changes would simply ignore the core purpose of the FRANK Initiative, the guarantee of the right of people to know all relocation costs. The resulting inaccuracy and partiality consequently inhering in the language advanced by Alaskans for Efficient Government, Inc., justify rejection of the changes they propose.

The court's order concludes that the summary does not adequately describe the changes the initiative proposes to make and that it casts the initiative's purpose in an unnecessarily negative light. The order also concludes that the current summary is not "true and impartial,." °

I disagree with these conclusions for several reasons that need little elaboration. First, the summary is essentially true and impartial. Second, it adequately describes the changes the present proposition would make; the current summary certainly does as much now in that regard as it will if it is changed as the court's order proposes. Third, a summary limited to 100 words must necessarily be a summary. It is sufficient if it captures the essential elements of the proposal, and it did so here. Finally, the current summary does not cast the proposition in a negative light; the only possible theory that it does so requires us to assume that the word "as" in the last sentence of the summary was intended to make it appear that the proposition would conceal from voters information that already exists generated by a commission that already exists. This theory places extraordinary weight on an innocuous little word. The summary correctly described the essence of the proposition's purpose. Although adding the words "would be" will not diminish the current summary's impartiality, doing so will not enhance its impartiality either. -

The current summary is not deficient, nor are the improvements the court's order proposes critical to understanding the present proposition. I would therefore affirm.

      . AS 15.45.180(a) provides:
      If the petition is properly filed, the lieutenant governor, with the assistance of the attorney general, shall prepare a ballot title and proposition. The ballot title shall, in not more than six words, indicate the general subject of the proposition. The proposition shall, in not more than 100 words, give a true and impartial summary of the proposed law.

      . The three statutes comprising the FRANK initiative provide as follows:
      AS 44.06.050 Purpose of AS 44.06.050-44.06.060.
      The purpose of AS 44.06.050-44.06.060 is to guarantee to the people their right to know and to approve in advance all costs of relocating the capital or the legislature; to insure that the people will have an opportunity to make an informed and objective decision on relocating the capital or the legislature with all pertinent data concerning the costs to the state; and to insure that the costs of relocating the capital or the legislature will not be incurred by the state without the approval of the electorate. AS 44.06.055 Relocation expenditures.
      State money may be expended to relocate physically the capital or the legislature from the present location only after a majority of those voting in a statewide election have approved a bond issue that includes all bondable
      costs to the state of the relocation of a functional state legislature or capital to the new site over the twelve-year period following such approval. The commission established in AS 44.06.060 shall determine all bondable costs and total costs including, but not limited to, the costs of moving personnel and offices to the relocation site; the social, economic, and environmental costs to the present and relocation sites; and the costs to the state of planning, building, furnishing, using, and financing facilities at least equal to those provided by the present capital city.
      AS 44.06.060 Commission.
      The legislature shall establish a commission composed of nine members, including a chairperson and two persons from each judicial district, appointed by the governor and confirmed by the legislature, to determine the costs required by initiatives or legislative enactments authorizing relocation of any of the present functions of state government.

      . AS 44.06.055.

      . AS 44.06.060.

      . AS 44.06.055.

      . AS 44.06.050.

      . For the first time in their reply brief, the sponsors raise a third argument. They argue that by stating that the initiative repeals a requirement that the voters "approve a bond issue for all bondable costs of the move," the language inaccurately implies that it removes the constitutional requirement that voters ratify all bonds issued by the state, when the initiative only seeks to repeal the requirement of voter approval for all bondable costs of moving the legislature. We decline to address this argument because it was not raised either before the trial court or in the sponsors' opening brief on appeal. See, e.g., Kel-lis v. Crites, 20 P.3d 1112, 1114-15 (Alaska 2001) (holding that argument not raised before the trial court or in opening brief on appeal will be considered waived); Nenana City Sch. Dist. v. Cog-hill, 898 P.2d 929, 934 (Alaska 1995) ("[An argument not raised in a suit before the trial court will not be considered on appeal.").

      . Burgess v. Alaska Lieutenant Governor, 654 P.2d 273, 276 (Alaska 1982).

      . Faipeas v. Municipality of Anchorage, 860 P.2d 1214, 1217 (Alaska 1993); see also Burgess, 654 P.2d at 276 n. 7.

      . Burgess, 654 P.2d at 276.

      . Id. at 275-76.

      . Id. at 275 (quoting In re Second Initiated Constitutional Amendment Respecting the Rights of the Public to Uninterrupted Service by Public Employees of 1980, 200 Colo. 141, 613 P.2d 867, 869 (1980) (block quotation)).

      . Id. (quoting Hope v. Hall, 229 Ark. 407, 316 S.W.2d 199, 201 (1958) (block quotation).

      . Id. at 275 n. 6, 316 S.W.2d 199 (quoting Sears v. Treasurer and Receiver Gen., 327 Mass. 310, 98 N.E.2d 621, 631 (1951) (block quotation}}.

      . See, eg., Fairness & Accountability in Ins. Reform v. Greene, 180 Ariz. 582, 886 P.2d 1338, 1346 (1994) ("[The purpose of the required analysis is to assist voters in rationally assessing an initiative proposal by providing a fair, neutral explanation of the proposal's contents and the changes it would make if adopted. ... The analysis and description must eschew advocacy-argument-for or against the proposal's adoption."); Gaines v. McCuen, 296 Ark. 513, 758 S.W.2d 403, 406 (1988) ("The ballot [summary] must accurately reflect the general purposes and fundamental provisions of the proposed initiative, so that an elector does not vote for a proposal based on its description in the ballot [summary], when, in fact, the vote is for a position he might oppose."); Advisory Opinion to Attorney Gen. re Term Limits Pledge, 718 So.2d 798, 803 (Fla.1998) (holding that the purpose of requiring the explanatory statement "is to provide fair notice of the content of the proposed amendment so that the voter will not be misled as to its purpose, and can cast an intelligent and informed ballot") (internal quotation omitted; citation omitted).

      . Mass. Teachers Ass'n v. Sec'y of the Commonwealth, 384 Mass. 209, 424 N.E.2d 469, 480 (1981); Sears, 98 N.E.2d at 631.

      . Gaines, 758 S.W.2d at 406 (internal citation omitied); see also People v. Flores, 178 Cal.App.3d 74, 223 Cal.Rptr. 465, 470 (1986) ("[Glenerally, the title and summary preceding an initiative need not contain a complete catalog or index of all provisions within the initiative."); Tinsley v. Superior Court of San Mateo, 150 Cal.App.3d 90, 197 Cal.Rptr. 643, 654 (Cal.App.1983) ("I has been consistently held that a ballot summary need not contain a reference to 'auxiliary or subsidiary' matters; a statement of the major objectives or 'chief points' of the measure is satisfactory."); Mass. Teachers Ass'n, 424 N.E.2d at 480 (" 'No doubt details may be omitted or in many instances covered by broad generalizations, but mention must be made of at least the main features of the measure.' ") (quoting Sears, 98 N.E.2d at 621), Mun. Servs. Corp. v. Kusler, 490 N.W.2d 700, 703 (N.D.1992) ("[The ballot title need not encompass every possible effect of the measure nor must it convey possible problems that may arise upon implementing the measure.").

      . See AS 44.06.055-.060.

      . While this language reflects our view of the least intrusive modification that would be permissible in terms of the numbers of additional words that would be needed to make the current summary reflect a true and impartial description of the initiative, we have not attempted to rate the wording under AS 15.60.005's readability standards and do not purport to require the lieutenant governor to adopt this precise wording. The lieutenant governor is free to make appropriate adjustments to the existing language necessary to conform to AS 15.60.005's standards as long as the substance of our proposed changes is maintained.

      . Order at 735. See Burgess v. Alaska Lieutenant Governor, 654 P.2d 273, 276 (Alaska 1982). As the court's order observes, "This means that we will not invalidate the summary simply because we believe a better one could be written; instead, 'the lieutenant governor's summary [will] be upheld unless we [cannot] reasonably conclude that the summary [is] impartial and accurate."" Order at 735.

      . Alaska Const. art. XI, § 4 ("'The Heutenant governor shall prepare a ballot title and proposition summarizing the proposed law...."); AS 15.45.180(a) ("[The lMeutenant governor, with the assistance of the attorney general, shall prepare a ballot title and proposition.").

      . "We have addressed the adequacy of a lieutenant governor's ballot summary in only one previous case ...." Order at 735.

      . AS 15.60.005 states:
      Readability of certain election materials.
      (a) The policy of the state is to prepare a ballot proposition that is clear, concise, and easily readable. The form of each ballot proposition shall be scored under (c) of this section. The policy of the state is to prepare a ballot proposition that is scored at approximately 60.
      (b) Each neutral summary prepared for the voter's pamphlet shall be scored under (c) of this section. The policy of the state is to prepare a neutral summary that is scored at approximately 60.
      (c) A ballot proposition or neutral summary shall be scored using the following procedures:
      (1) disregard numbers;
      (2) multiply the average sentence length in words by 1.015;
      (3) multiply the average number of syllables for each 100 words by .846;
      (4) subtract the total of (2) and (3) from 206.835.
      (d) A court may not enjoin the conduct or results of an election for a failure to comply with (a) or (b) of this section.

      . AS 15.45.180 requires a ballot summary to comply with AS 15.60.005.

      . Order at 737 n. 19.

      . Order at 735.

      . AS 44.06.050.

      . Order at 736-737.

      . Order at 737.

      . Thus, the order states that, "When combined with its concrete statement describing the initiative's repeal of the existing law's purpose of revealing the costs of a move to the electorate, the summary's past-tense phrasing-'as determined by a commission -can easily be read to mean that an existing commission has already determined the costs and that the initiative seeks to keep them secret." Order at 736-737. I think the summary cannot "easily be read" to have that meaning.
      The sponsors' appellate briefs do not seem to argue that this language is susceptible to the reading the court attributes to it. Perhaps the court's reading derives from appellants' relatively cryptic argument that implies that the sponsors have been unfairly blamed for trying to hide the relocation costs. But the ballot proposition, if it passes, will do away with the need to appoint a public commission charged with determining relocation costs. Given this purpose, it seems incorrect to argue that the summary is inaccurate. And this purpose also seems to be inconsistent with an argument implying that it is unfair to blame the appellants for trying to prevent voters from knowing the costs of a relocation.


author: CARPENETI, Justice.

text:
    William HUNT, Appellant, v. UNIVERSITY OF ALASKA, FAIRBANKS, Appellee.
    No. S-10115.
    Supreme Court of Alaska.
    Aug. 9, 2002.
    Rehearing Denied Oct. 25, 2002.

      William Hunt, pro se, North Pole.
    Paul B. Eaglin, University of Alaska Office of the General Counsel, Fairbanks, for Ap-pellee.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

CARPENETI, Justice.

I. INTRODUCTION

William Hunt applied for and was denied outright admission to the Elementary Education Program by the School of Education at the University of Alaska Fairbanks. Instead, he was granted conditional acceptance. After he was unable to fulfill the conditions of his acceptance, the university removed Hunt from his student teaching class. Hunt appealed this decision to the university academic appeals committee, which found that the School of Education acted in accordance with its published guidelines for admission. Hunt then appealed to the superior court, which upheld the decision of the academic appeals committee and awarded the university $3,000 in attorney's fees. Because the university complied with its regulations in denying Hunt admission, we affirm that deci-gion.

II. FACTS AND PROCEEDINGS

William Hunt is an aspiring elementary education teacher at the University of Alaska Fairbanks (UAF). After being injured while working as a mechanic in 1995, Hunt enrolled at UAF using his workers' compensation benefits to pay for his education. When his workers' compensation benefits ended, Hunt relied on temporary public assistance to pay for his education and the expenses of raising his children as a single parent. Due to the constraints of the welfare program, Hunt needed to obtain his degree by May 2000.

In early 1999, Hunt applied for admission to the School of Education (SOE) at UAF, three years after first enrolling at the university, as is customary for elementary education majors. Admittance to the SOH is required for an elementary education major to take the methods block and student teaching classes (the so-called "professional year") needed to obtain a bachelor's degree in education. \

While Hunt apparently excelled in math and science classes, his language and reading skills were not nearly as strong. The committee of faculty members who reviewed his SOE application (which consisted of his tran-seripts, recommendations, and timed and un-timed writing samples) rated his writing skills as marginal at best. Rather than'rejecting Hunt outright, the committee recommended that Hunt be allowed to take the Praxis exam, a test of basic reading, writing, and math skills, after which a decision on his acceptance into the SOE would be made.

When Hunt entered UAF, the Praxis exam was not required for admission to the SOE. In 1998, the state began to require passing scores on the Praxis exam for teacher certification. In the 2000-2001 UAF catalog, students were, for the first time, required to report their Praxis scores to the SOE when applying for admission to the elementary education program.

Hunt took the Praxis exam in spring 1999 and failed the reading and writing portions. The SOE informed Hunt that, unless he retook and passed the Praxis exam, he would be unable to proceed into his professional year. As he did not believe he was required to take the exam under his catalog year of 1996-1997 and the exam was offered only in Anchorage that summer, Hunt requested a waiver of the exam. Hunt was eventually granted a partial waiver that allowed him to take the Fall 1999 methods classes on the conditions that he pass the Praxis exam before beginning student teaching in Spring 2000 and that he attend the Writing Center at UAF to further develop his language skills.

Hunt took the exam again in Fall 1999 but did not receive a passing score. After passing his methods classes and submitting an essay for student teaching that exhibited better writing skills than those exhibited in his initial application to the SOE, Hunt again applied to the student teaching program. Though Hunt began student teaching in January 2000, he was informed by the SOE that he was unable to continue with his student teaching because he had failed to fulfill the condition of passing the Praxis exam. He was then removed from the class.

Hunt appealed the SOE's decision to UAF. A university-wide academic appeals committee held a hearing on Hunt's case in February 2000. In that hearing, it was established that Hunt's approval to student teach was contingent only on his passing of the Praxis exam. The appeals committee decided to uphold the requirement that Hunt pass all three parts of the Praxis exam before he began student teaching.

Hunt appealed this decision to the superior court. Superior Court Judge Pro Tem Mark I. Wood held that UAF complied with its catalog in requiring Hunt to pass the Praxis exam before student teaching. Finding that UAE's decision to require Hunt to pass the exam was a reasonable exercise of its discretion, the court held that the final decision of the academic appeals committee was not arbitrary or unreasonable. Judge Wood later granted UAF attorney's fees in the amount of $3,000. Hunt now appeals.

III. STANDARD OF REVIEW

In administrative appeals, we directly review the agency action in question. Review of whether UAF complied with its own regulations is limited to a determination of whether the decision was arbitrary, unreasonable, or an abuse of discretion An abuse of discretion is found "when we are left with a definite and firm conviction, after reviewing the whole record, that the trial court erred in its ruling." "In matters of academic merit, curriculum, and advancement, courts afford university faculty and administrators substantial discretion."

We review the imposition of an attorney's fees award under an abuse of discretion standard.

IV. DISCUSSION

A. UAF Was Entitled To Require Hunt To Pass the Praxis Exam as a Condition of Admission to the Elementary Education Program.

Hunt argues that UAF ignored all the factors that demonstrated he was ready and able to complete his professional year. He claims that UAF arbitrarily and capriciously based its decision solely on whether he passed the Praxis exam. He claims that the university failed to comply with the terms of the UAF catalog because successful completion of the Praxis exam is not required in the catalog.

The UAF catalog requires that, to be admitted to the SOE, a student must "formally apply for admission to the Fairbanks elementary education program...."

The Elementary Education Program is a selective teacher education program.... Admission to UAF as a degree student majoring in education does not automatically qualify a student for admission to the Elementary Teacher Education Program. Admission to the Program is based on a comprehensive system that includes more than one measure and is used by the education faculty to assess the personal characteristics, communications, and basic skills proficiency of candidates preparing to teach.[ ]

Applicants are measured on multiple factors, which are weighed and assessed by various means, and include, but are not limited to, "faculty rating forms, letters of reference, university transcripts, writing samples, and evaluations from University-sponsored practicum placements."

Hunt's overall grade point average of 3.58 on a 4.0 seale exceeded the 2.7 GPA required for admission. Though he received no grades lower than a "C," Hunt's lowest grades were in his English courses. In his application for admission to his professional year, Hunt received recommendations from Pat Wise, a teacher at North Pole Elementary School who had worked with Hunt when his daughters were in her class, and Dan File, Assistant Principal at North Pole Middle School.

Wise recommended that Hunt be admitted to the methods classes at UAF, stating that his earnestness, concern, and knowledge of typical school programs would be beneficial. However, Wise also stated that Hunt needed more experience in classrooms. She found his area of weakness to be language presentation, stating that he needed to practice correct grammatical and written skills Because of his conscientiousness and willingness to learn and practice, Wise felt that Hunt would be able to succeed in a methods class with proper guidance so as to avoid any language hindrances.

File's recommendation was more reserved. He found Hunt to be extremely reliable and motivated, dedicated to his goal of achieving a teaching certificate, as well as a dedicated single father of three girls. File's concern centered on Hunt's ability to deal with middle school students. He felt that Hunt may be a better fit at "the intermediate grades" and that Hunt's lack of experience would work itself out in his methods classes and student teaching.

Also as part of the application process, Hunt wrote three untimed essays and one timed, extemporaneous essay. These essays, as well as the other aspects of his application, were reviewed by a three-member committee that made admissions decisions.

All three committee members ranked Hunt's interpersonal, intercultural, and professional indicators on the high end of the seale. His basic written communication/literacy skills, however, were an area of concern for the evaluators. For his extemporaneous writing sample, one evaluator circled both "marginal" and "fail," another circled between "marginal" and "fail," and the dast circled "marginal." One evaluator found "weakness apparent in all areas and especially in written communications." Another found "serious writing problems-grammar, sentence structure, spelling, ete." The other evaluator found Hunt to have "writing difficulties-mechanical/grammar."

For his untimed application essays, Hunt received similar scores of marginal to fail. One evaluator was "surpris[ed] (and discour-agled]) to find errors in essays prepared with plenty of opportunity and time to make corrections, proof-read, etc."

In their final recommendations, two evaluators did not choose between the "admit" and "reject" options, and the third chose "reject." One of the undecided evaluators stated that Praxis scores were needed before a decision could be made. The other, who placed a question mark next to each option, stated that "[wlith writing marginal, it's important to receive Praxis scores before making a determination about methods." The final evaluator, who chose to reject Hunt, stated that "[thhis is tough-he still lacks necessary skills and knowledge for the profession-He certainly is progressing."

Ultimately, in April 1999, the SOE conditionally accepted Hunt into the Elementary Education Program. His acceptance into the methods blocks was "contingent upon passing scores on PRAXIS I, successful completion of all remaining required courses, availability of practical placements, and resources in the School of Education. In addition, the School of Education require[d] that [Hunt] attend the Writing Center to further develop and refine [his] writing skills" As noted above, Hunt failed the Praxis exam in both the spring and fall of 1999.

Although the Praxis exam was not a requirement of admission to the Elementary Education Program during Hunt's catalog year, Hunt's demonstrated weaknesses in the areas of language and communication gave UAF a justifiable reason to require that he pass the Praxis exam before admittance. The requirements state that the measures listed are merely examples that do not encompass everything the admissions committee may consider. Rather than requiring Hunt to pass the Praxis exam as a newly-created requirement to the program, the committee sought to give Hunt a chance to enter the program in spite of his weak language skills With the Praxis exam, the committee afforded Hunt an objective opportunity to demonstrate his capacity for reading and writing.

Furthermore, the choice of the Praxis exam as this objective measure was appropriate. In July 1998, a new requirement for those seeking an initial regular teacher certificate took effect-successful completion of a competency examination by the standards established by the state. The competency exam chosen by the state was the Praxis exam. As such, the committee's decision to require Hunt to pass the Praxis exam as a condition of his admission to the SOF was not an abuse of discretion. Rather, it was a legitimate choice of an objective measurement of his skills that he would have been required to pass in order to be licensed in the state. Requiring Hunt to pass the exam before applying for his license merely gave Hunt an extra chance to be admitted to the program when he otherwise would have been denied admission based on his application. The university thus complied with the terms of the UAF catalog and did not abuse its discretion in conditioning Hunt's admission on his successful completion of the Praxis exam.

B. There Is No Evidence that UAF Violated Hunt's Equal Protection Rights.

Hunt argues that he was treated differently than other students who had applied for admission to the SOE. Citing Jones v. Central Peninsula General Hospital Hunt argues that the SOE's decision to admit certain students into the Elementary Education Program while not admitting him was unlawful. He asserts that UAF has acknowledged that it is unacceptable for UAF to arbitrarily and capriciously grade students. This standard, Hunt argues, should be applied to the subjective decisions of the SOE on admissions to the professional year.

However, the record before us does not support Hunt's claim. Hunt rests his argument on a spreadsheet of test scores, majors, and GPAs. It is unclear from this spreadsheet which students were admitted to the professional year, which had successfully completed the methods block, and which were allowed to student teach. Furthermore, in regard to the students Hunt discusses in his brief, there is no indication who was admitted to the professional year or any evidence of the other aspects of their application, ie., writing samples, evaluations, or grades. To determine whether Hunt's equal protection rights were violated, evidence would be needed of students with marginal/failing SOE applications who were admitted to the program notwithstanding a failing seore on the Praxis exam. Based on this record, Hunt has failed to show that he was treated differently from students in a similar situation.

C. Because UAF Complied with Its Catalog, We Need Not Decide Whether the Catalog Created a Contract between Hunt and UAF.

Hunt argues that UAF's policy of allowing him to pick the catalog he wanted to use to guide him through his final year created a contract. In Bruner v. Petersen, we found that, because the University of Alaska Anchorage had complied with the provisions of the course catalog and the student handbook, we did not have to reach the question of whether the catalog and handbook resulted in a contract between Bruner and the University.

The decision to admit a student to the SOE is a subjective one, involving the consideration of many factors. We have held that where matters of "academic merit, curriculum, and advancement" are concerned, university faculty and administrators should be afforded "substantial discretion." "'When judges are asked to review the substance of a genuinely academic decision ... they should show great respect for the faculty's professional judgment.'" '" Therefore, the SOE committee's decision to not admit Hunt to the SOE due to his weak writing skills, and the academic appeals committee's review of that decision, should be afforded deference. As Hunt has not presented any evidence indicating that the decision was made for a reason other than his language abilities and because we hold that UAF complied with its catalog, we need not decide whether the catalog created a contract between Hunt and UAF.

D. UAF Did Not Violate the Alaska Statutes and UAE's Policies.

Hunt argues that UAF has violated several Alaska statutes and university poli-cles and regulations by forcing him to take the Praxis exam before being admitted to the teaching program. Specifically, Hunt points to AS 14.40.170(b), which provides that the Board of Regents may "adopt reasonable rules, orders, and plans" for the government of UAF. Hunt states that UAF complied with this requirement by adopting a policy allowing students to choose any catalog in effect when enrolled as a degree-seeking student, with a seven-year limit on the catalog year.

Further, Hunt argues, the state has adopted a policy of protecting students by prohibiting misleading literature." He claims this policy was violated by UAE's requirement that he take the Praxis exam. Hunt also argues that UAF violated AS 14.48.060(b)(4) * by changing his graduation requirements and that he would not have enrolled had he known this was going to happen.

UAF's requirement that Hunt take the Praxis exam before admitting him to the Elementary Education Program was not an additional requirement that was misleading to Hunt or a changing of the requirements Hunt needed in order to graduate from UAF. Rather, the requirement of the Praxis exam was an alternative measure the committee employed to give Hunt a chance to enter the program because without it he would have been denied admission. Instead of changing requirements in the middle of his UAF career, therefore, UAF gave Hunt an extra, alternative opportunity to fulfill the established requirements for entry into the teaching program.

E. The Superior Court Did Not Err in Awarding UAF Attorney's Fees.

Hunt challenges the superior court's order that he pay $8,000 in legal fees to UAF. He argues that the award of attorney's fees is based on the superior court's finding that UAF did not act arbitrarily or capri-clously and did not breach a contract with Hunt. As this finding by the court was incorrect, Hunt argues, the award of attorney's fees should be reversed.

Hunt does not, and could not, dispute that UAF was the prevailing party in the action, instead basing his appeal on the claim that the superior court erred in its underlying decision and therefore erred in its award of fees. In the superior court, Hunt did not offer any other reason to deny fees to UAF. Rather, in his opposition motion to UAF'"s fee request, Hunt argued that the trial court should apply the standard of Civil Rule 82, providing for an award of thirty percent of reasonably and necessarily incurred costs and fees.

Attorney's fees were awarded in this case pursuant to Alaska Rule of Appellate Procedure 508(e). Such fees should only partially compensate a party for its fees. In awarding fees, a court may exercise its sound discretion in making awards that are justified and reasonable. While Hunt argued to the superior court that if fees were to be awarded, no more than $4,779 should be granted, the superior court only awarded UAF $3,000. Because Hunt offered no other reason, either before us or the court below, for challenging the award, we affirm the superior court's award of attorney's fees.

v. CONCLUSION

Because UAF complied with its catalog requirement when it required Hunt to pass the Praxis exam before admitting him to the Elementary Education Program, and because the court awarded UAF fees less than the amount suggested by Hunt, we AFFIRM the decision of the superior court in all respects.

      . The methods block is a hands-on class where students learn to teach particular subjects to students. During the blocks (usually one for each subject elementary educators are responsible for), students prepare lesson plans and work with teachers in a classroom setting.

      . A student's degreé requirements are established by choosing the requirements listed in the catalog for one of the academic years in which he or she is enrolled as a degree-seeking student.

      . Northern Alaska Envtl. Ctr. v. State, Dep't of Natural Res., 2 P.3d 629, 633 (Alaska 2000).

      . Nickerson v. Univ. of Alaska Anchorage, 975 P.2d 46, 50 n. 1 (Alaska 1999) (quoting Szefner v. Univ. of Alaska, 944 P.2d 481, 484-85 n. 2 (Alaska 1997)).

      . Peter Pan Seafoods, Inc. v. Stepanoff, 650 P.2d 375, 378-79 (Alaska 1982).

      . Bruner v. Petersen, 944 P.2d 43, 48 (Alaska 1997).

      . Id. at 49.

      . University or Auasa, Farreanx®s 1996-97 Annuar CaraLog 79.

      . Id. at 81.

      . Id.

      . AS 14.20.020() states, in part:
      Beginning on July 1, 1998, a person is not eligible for an initial regular teacher certificate unless the person has taken and successfully completed a competency examination or examinations designated, at the time the person took the test, by the board.

      . 4 Alaska Administrative CoCode 12. 4 Alaska Administrative (AAC) 12.010(b)(5) (2002) states:
      [Flor an applicant as to whom the provisions of AS 14.20.020(i) apply, the official scores on the required Praxis I: Academic Skills Assessments demonstrating that the applicant meets or exceeds the following Alaska qualifying scores [for the computer based exam] on the competency examinations:
      (A) reading: 322;
      (B) writing: 321; and
      (C) math: 318.

      . 779 P.2d 783, 789 n. 6 (Alaska 1989) (recognizing that contractual covenant of good faith and fair dealing requires employers to treat similarly situated employees equally).

      . 944 P.2d 43 (Alaska 1997).

      . Id. at 48.

      . Id.

      . Id. (quoting Regents of Univ. of Mich. v. Ewing, 474 U.S. 214, 225, 106 S.Ct. 507, 88 LEd.2d 523 (1985)).

      . AS 14.40.170(b)(1) provides, in part:
      The Board of Regents may adopt reasonable rules, orders, and plans with reasonable penalties for the good government of the university and for the regulation of the Board of Regents....

      . AS 14.48.010(a)(4) provides, in part:
      It is the purpose of this chapter to provide for the protection, education, and welfare of the citizens of the state, its postsecondary educational institutions, and its students, by
      (4) prohibiting misleading literature, advertising, solicitation, or representation by educational institutions or their agents....

      . AS 14.48.060(b)(4) states, in part:
      [TJhe institution provides a catalog or brochure containing information describing the programs offered, program objectives, length of program, schedule of tuition, fees, and all other charges and expenses necessary for completion of the course of study, cancellation and refund policies, and other material facts concerning the institution and the program or course of instruction that are reasonably likely to affect the decision of the student to enroll, together with any other disclosures specified by the commission by regulation; and this information is provided to prospective students before enrollment. ...

      . Alaska Rule of Appellate Procedure 508(e) provides:
      Attorney's fees may be allowed in an amount to be determined by the court.... If the court determines that an appeal or cross-appeal is frivolous or that it has been brought simply for purposes of delay, actual attorney's fees may be awarded to the appellee or cross-appellee.

      . Carr-Gottstein Props. v. State, 899 P.2d 136, 148 (Alaska 1995).

      . Id.