author: GREENWOOD, Judge.

text:
    2003 UT App 3
    STATE of Utah, Plaintiff and Appellee, v. Konai BLOOMFIELD, Defendant and Appellant.
    No. 20020249-CA.
    Court of Appeals of Utah.
    Jan. 9, 2003.

      Ronald J. Yengich and Vanessa Ramos-Smith, Yengich, Rich & Xaiz, Salt Lake City, for Appellant.

      Mark L. Shurtleff, Atty. Gen., and Kenneth A. Bronston, Asst. Atty. Gen., Salt Lake City, for Appellee.
    Before JACKSON, P.J., DAVIS, and GREENWOOD, JJ.
   OPINION

GREENWOOD, Judge.

¶ 1 Konai Bloomfield (Defendant) appeals his jury convictions of two counts of aggravated robbery, both first degree felonies, in violation of Utah Code Ann. § 76-6-302 (1999). Defendant contends there was insufficient evidence to convict, the trial court erroneously admitted a surveillance videotape, and his trial counsel was ineffective for failing to object to the admission of the surveillance videotape. We affirm.

BACKGROUND

¶ 2 About 1:30 a.m. on February 26, 2000, Defendant and two of his friends, George Afu (George) and Joe, went to Beto’s Mexican Food restaurant (Beto’s). The victims, Jose Farias (Jose) and Gabriel Calibello (Gabriel), along with their friend Rachel Redding (Rachel), were at Beto’s eating when Defendant and his friends arrived. George entered the restaurant first, followed by Defendant and, Joe, a few seconds later. Upon entering the restaurant, Defendant approached Jose and asked him “what he was looking at.” George then approached the victims’ table and said “everything is fine ... we wanted to come and get something to eat,” and then George shook Jose’s and Gabriel’s hands.

¶ 3 Defendant and his friends went to the counter to order their food. Moments later, Rachel and Jose also went to the counter to get a drink. George told Rachel and Jose to go ahead of them. During this time, Joe walked behind the table where Gabriel was sitting. Almost instantly, Defendant began beating Jose, and Joe began beating Gabriel. After Jose fell to the floor unconscious, Defendant and George continued to kick and stomp on Jose’s face and head. Defendant then bent over Jose and ripped out his eyebrow ring, saying “You won’t be needing this.” Joe joined Defendant in kicking and stomping Jose, then Joe searched Jose’s pockets. While Joe was searching Jose’s pockets, Defendant kicked Jose, turning him over. Defendant and Joe then went to where Gabriel was lying unconscious, and with Defendant standing over Joe, Joe searched Gabriel’s pockets and took his wallet. Defendant and Joe then left. Security cameras in the restaurant recorded the entire incident.

¶4 As a result of the beating, Jose suffered multiple bruises, scrapes, and contusions to his head and face. Jose had tennis shoe markings on his head and, although breathing, he remained unconscious until the next morning. Gabriel was beaten unconscious and suffered a loss of memory from the time the beating began. Gabriel was in bed for ten days, and suffered a broken nose, a severe wound on his chin that required stitches, the loss of a bridge holding two false teeth, and the loss of a natural tooth.

¶ 5 The jury found Defendant guilty on both counts of aggravated robbery. This appeal followed.

ISSUES AND STANDARDS OF REVIEW

¶ 6 Defendant contends that there was insufficient evidence presented to support his convictions for aggravated robbery. We reverse a jury verdict “when the evidence ... [and inferences therefrom are] sufficiently inconclusive or inherently improbable that reasonable minds must have entertained a reasonable doubt that the defendant committed the crime of which he [or she] was convicted.” State v. Waldron, 2002 UT App 175,¶ 10, 51 P.3d 21 (quotations and citation omitted) (second alteration in original).

¶ 7 Defendant also argues that the trial court committed plain error in admitting the surveillance videotape without first laying a proper foundation. To establish plain error, a defendant must establish that

(i) [a]n error exists; (ii) the error should have been obvious to the trial court; and (iii) the error is harmful, i.e., absent the error, there is a reasonable likelihood of a more favorable outcome for the appellant, or phrased differently, our confidence in the verdict is undermined.

State v. Roígate, 2000 UT 74,¶ 13, 10 P.3d 346 (citation and quotations omitted). However, if defense counsel has “made a conscious decision to refrain from objecting or has led the trial court into error, [this court] will then decline to save that party from the [alleged plain] error.” State v. Bullock, 791 P.2d 155,158 (Utah 1989).

¶ 8 Finally, Defendant argues he received ineffective assistance of counsel when his attorney failed to object to the admission of the surveillance videotape. For Defendant to establish ineffective assistance of counsel, he “must [first] show that his trial counsel’s performance was deficient, in that it fell below an objective standard of reasonableness .... [Second,] that there is a reasonable probability that the result would have been different absent the deficient performance.” State v. Finlayson, 956 P.2d 283, 293 (Utah Ct.App.1998) (citations and quotations omitted) (first alteration in original).

ANALYSIS

I. Sufficiency of Evidence

A. Taking of Property

¶ 9 Defendant initially argues that the evidence presented below does not support a finding that he took Jose’s eyebrow ring with a purpose to deprive.

Utah Code Ann. § 76-6-301 (1999) defines robbery as follows:

(a) the person unlawfully and intentionally takes or attempts to take personal property in the possession of another from his person, or immediate presence, against his will, by means of force or fear;....

(Emphasis added.)

¶ 10 Defendant contends that in order for him to be convicted of a “taking” under the robbery statute, the State must prove he had a “purpose to deprive.” Defendant argues the evidence presented at trial was limited to his ripping the eyebrow ring from Jose and throwing it at him. This evidence, Defendant asserts, at best is part of an assault and is insufficient to prove an intent to deprive. The State argues that robbery only requires the State prove that Defendant “[took] or attempted] to take personal property in the possession of another.” Id. The State contends that the “purpose to deprive" element is expressly limited to Theft as defined in Utah Code Ann. § 76-6-404 (1999). Section 76-6-404 states, “A person commits theft if he obtains or exercises unauthorized control over the property of another with a purpose to deprive him thereof.” Id. (emphasis added).

¶ 11 However, in State v. Hill, 674 P.2d 96 (Utah 1983), the supreme court “considered the State’s argument that theft [was] not a lesser included offense of robbery because theft, as defined in § 76-6-404, requires a ‘purpose to deprive’ ... the victim of the property, which is not an element of robbery as defined in § 76-6-301.” Id. at 97 n. 1. The supreme court rejected the State’s argument, concluding that the “ ‘purpose to deprive’ is inherent in the act of robbery in view of the manner of taking specified in § 76-6-301.” Id. Similarly, states with robbery statutes comparable to Utah’s have interpreted them to include a “purpose to deprive” requirement. See, e.g., State v. Morrison, 181 Ariz. 279, 889 P.2d 637, 640 (Ct.App.1995) (concluding despite absence of explicit language “robbery in Arizona requires the specific intent to deprive the victim of his property”); State v. Belue, 127 Idaho 464, 902 P.2d 489, 491 (Ct.App.1995) (same); Gregory v. State, 259 Ind. 652, 291 N.E.2d 67, 69 (1973) (holding “felonious intent” language in robbery statute infers intent to take property with purpose of “depriving the owner of its use and possession”); State v. Coleman, 373 N.W.2d 777, 781 (Minn.1985) (stating robbery and assault would be identical offenses if courts did not construe the specific intent to deprive into robbery statute); State v. Corwin, 32 Wash.App. 493, 649 P.2d 119, 122 (1982) (“The statutory elements of robbery, presuppose that intent to deprive the victim of property is a necessary element.”); State v. Plumley, 179 W.Va. 356, 368 S.E.2d 726, 728 (1988) (recognizing that intent “to feloniously deprive the owner permanently of his property, is an essential element of the crime of robbery.”).

¶ 12 Therefore, Defendant correctly asserts that the robbery statute requires the State to prove that he committed the taking with a “purpose to deprive ... the victim of the property.” Although we agree with Defendant concerning the purpose to deprive element, he did not raise this issue at trial and stipulated to jury instructions that did not include an intent to deprive element. Defendant has thus failed to preserve this claim for appeal. See State v. Davis, 965 P.2d 525, 537 (Utah Ct.App.1998) (“ ‘One who fails to make a necessary objection or who fails to insure that it is on the record is deemed to have waived the issue.’ ” (citation omitted)). Thus, we affirm Defendant’s conviction for aggravated robbery of Jose, based on his taking of Jose’s eyebrow ring.

B. Accomplice Theory

¶ 13 Defendant also argues that the evidence was insufficient to show that he participated as an accomplice in the robbery of the victims. Utah’s accomplice liability statute states:

Every person, acting with the mental state required for the commission of an offense who directly commits the offense, who solicits, requests, commands, encourages, or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable as a party for such conduct.

Utah Code Ann. § 76-2-202 (1999).

¶ 14 Defendant argues that the evidence presented suggests, at most, that Defendant was merely present during the commission of the robbery, and under the “mere presence” doctrine, Defendant cannot be liable. Defendant cites In re V.T., 2000 UT App 189, 5 P.3d 1234, in support of his argument. In In re V.T., the defendant was charged as an accomplice in the theft of a camcorder. See id. at ¶ 8. The court stated that case law requires “something more than a defendant’s passive presence during the planning and commission of a crime” to constitute encouragement. Id. at ¶ 16. “There must be evidence showing that the defendant engaged in some active behavior, or at least speech or other expression, that served to assist or encourage the primary perpetrators in committing the crime.” Id. The court ultimately found there was insufficient evidence on which to convict the defendant under an accomplice liability theory because the evidence demonstrated only that the defendant was present with his friend when the camcorder was stolen and when his friend used the telephone in an effort to sell the stolen camcorder to a pawn shop. See id. at ¶ 18.

¶ 15 Defendant argues that because he just stood by while Joe went through the victims’ pockets, his mere passive presence was insufficient to find him guilty as an accomplice. However, at trial, the State presented its theory that the robberies were preplanned by Defendant and his friends before entering the restaurant. To support its theory, the State used the surveillance videotape and witness testimony to illustrate that when Jose approached the counter, Joe moved behind Gabriel. Once in position, Defendant and Joe began to simultaneously beat the victims to incapacitate them. The State argued that Defendant was an active participant in the robberies by incapacitating Jose while Joe did the same to Gabriel, in an effort to prevent either victim from interceding to protect his friend. The State also argued that Defendant aided Joe by kicking Jose, turning him over, and allowing Joe to go through Jose’s pockets. In addition, Defendant, as a form of encouragement, stood over Joe while Joe went through Gabriel’s pockets and stole his wallet. “[W]hile mere presence at the scene of a crime affords no basis for a conviction, presence, companionship, and conduct before and after the offense are circumstances from which one’s participation in the criminal intent may be inferred.” American Fork City v. Rathe, 2000 UT App 277,¶ 7, 12 P.3d 108 (quotations and citations omitted) (alteration in original). Therefore, we conclude that sufficient evidence was presented for the jury to find that Defendant was an accomplice to the robberies.

C. Serious Bodily Injury

¶ 16 Utah Code Ann. § 76-6-302(l)(b) (1999) states, that “A person commits aggravated robbery if in the course of committing robbery, he ... causes serious bodily injury upon another.” Defendant argues that the evidence regarding Jose’s injuries was insufficient to meet the definition of serious bodily injury under Utah Code Ann. § 76-1-601(10) (1999). Section 76-1-601(10) defines serious bodily injury as “bodily injury that creates or causes serious permanent disfigurement, protracted loss or impairment of the function of any bodily member or organ, or creates a substantial risk of death.”

¶ 17 The jury viewed the surveillance video showing Jose being severely beaten, falling to the floor unconscious, and continuing to be kicked and stomped about his head and face numerous times by Defendant. In addition, Detective Huggard testified that upon arriving at the scene he found Jose unconscious with numerous bruises, scrapes, and a head contusion. Huggard testified that he considered Jose to be in “critical or nearly critical condition for the fact that he was unconscious, not alert, but still breathing.” Huggard further testified that Jose’s head appeared to have tennis shoe marks on it. Rachel also testified to the severity of Jose’s beating and that Jose did not regain consciousness until the following morning.

¶ 18 Defendant contends that the evidence establishes, at most, the offense of aggravated assault, a third degree felony; therefore, Defendant’s conviction should be reduced. However, the jury was instructed on the lesser offense of aggravated assault and the accompanying definition of “substantial bodily injury” and rejected it. Defendant argues, however, that Jose’s unconsciousness cannot constitute serious bodily injury under the statute. No Utah cases have directly addressed this question, but several suggest that a jury may find that an assault resulting in temporary unconsciousness meets the statutory definition of serious bodily injury. In State v. Peterson, 681 P.2d 1210 (Utah 1984), the supreme court affirmed a conviction for aggravated assault where the victim was choked and became unconscious, but survived, because the assault “could have caused the death or serious bodily injury of [the victim].” Id. at 1219; see also State v. Poteet, 692 P.2d 760, 764 (Utah 1984) (affirming aggravated assault conviction where victim was unconscious 15 to 18 hours and doctor testified victim could have died); State v. Fisher, 680 P.2d 35, 37 (Utah 1984) (stating strangulation causing unconsciousness indicated intention to cause serious bodily injury). We therefore conclude that it is “within the province of the jury to consider the means and manner by which the victim’s injuries were inflicted along with the attendant circumstances” in determining whether a defendant caused serious bodily injury. State v. King, 604 P.2d 923, 926 (Utah 1979). In this case, the evidence presented was sufficient for the jury to determine that Defendant’s beating of Jose caused serious bodily injury, within the meaning of section 76-1-601(10).

II. Admission of the Surveillance Videotape

A. Plain Error

¶ 19 Because no objection was made at trial, Defendant argues on appeal that the trial court committed plain error in admitting the surveillance videotape into evidence. In order to establish plain error, Defendant must establish that

(i) [a]n error exists; (ii) the error should have been obvious to the trial court; and (iii) the error is harmful, i.e., absent the error, there is a reasonable likelihood of a more favorable outcome for the appellant, or phrased differently, our confidence in the verdict is undermined.

State v. Holgate, 2000 UT 74,¶ 13, 10 P.3d 346 (quotations and citation omitted).

¶20 Defendant contends that the State failed to lay a proper foundation for the videotape to be admitted into evidence. Specifically, Defendant argues no testimony was presented that the events depicted were an accurate representation of the actual incident. Therefore, it was error to admit the videotape.

¶ 21 Utah Rule of Evidence 901 states:

(a) General provision. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.
(b) Illustrations. By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:
(1) Testimony of witness with knowledge. Testimony that a matter is what it is claimed to be.

(Emphasis added.)

¶ 22 The State sought to admit the surveillance video through the testimony of Detective Huggard. Huggard testified that upon arriving at the scene, Beto’s employees informed him that the restaurant’s surveillance video had recorded the whole incident. Huggard testified that the employees then gave him the surveillance videotape. Upon the State’s attempts to have Huggard identify a portion of the videotape, defense counsel objected for lack of foundation. The State then proceeded to lay a foundation for the videotape by playing a portion of the tape for Huggard to determine if he recognized the surveillance videotape as the one he received from the Beto’s employee. Huggard affirmed that the videotape was in fact the one he received on the night of the incident. Huggard then used a diagram of the interior of Beto’s to identify each area of the restaurant where the four cameras were located. The State played the surveillance video while Huggard identified the individuals appearing on the video, including Defendant. Defendant stipulated that he was the individual on the video. Huggard further testified that the video image was consistent with the way he found the scene when he arrived at the restaurant that evening. Specifically, Huggard testified that the video image was consistent with where he found the victims Gabriel and Jose lying and where their blood was located on the floor. The trial court then admitted the surveillance video into evidence without further objection by Defendant.

¶ 23 The events on the videotape were further corroborated by the testimony of both Rachel and Defendant. While viewing the videotape, Rachel narrated the events that were taking place and the individuals as they appeared on the screen. Defendant also used the video to testify about the events taking place on the screen. Neither Rachel nor Defendant claimed that what was on the video was not an accurate representation of what happened that night.

¶ 24 The general rule in Utah is that when “a competent witness with personal knowledge of the facts represented by a photograph [or video] testifies that the photograph accurately reflects those facts, it is admissible.” State v. Purcell, 711 P.2d 243, 245 (Utah 1985). Although it is true that Detective Huggard lacked personal knowledge as to the actual events as they occurred, he did possess personal knowledge that the surveillance videotape given to him the night of the robberies was the same one used in court, that it depicted the interior of Beto’s as he had known it to be, and that its portrayal of the victims was consistent with the location where he found the victims lying and the location of their blood. Further, the events depicted in the surveillance video were substantially corroborated by the testimony of both Rachel and Defendant, who did possess personal knowledge of the events depicted in the videotape. We believe that this testimony was “sufficient to support a finding that the matter in question [was] what its proponent claim[ed].” Utah R. Evid. 901(a). However, even if it may have been error to admit the videotape solely through Detective Huggard’s testimony, we conclude that such error was invited by Defendant. See State v. Perdue, 813 P.2d 1201, 1206 (Utah Ct.App.1991) (stating invited error defeats claim of plain error).

¶ 25 Invited error may exist when “defendant’s counsel consciously chose not to object and ‘affirmatively led the trial court to believe that there was nothing wrong with the instruction.’ ” State v. Anderson, 929 P.2d 1107, 1109 (Utah 1996) (citation omitted). When counsel consciously decides not to object as part of trial strategy, appellate courts “should refuse to consider the merits of the trial court’s ruling.” State v. Bullock, 791 P.2d 155, 159 (Utah 1989). A “defendant cannot lead the court into error by failing to object and then later, when he is displeased with the verdict, profit by his actions.” Anderson, 929 P.2d at 1109 (quotations and citation omitted).

¶ 26 In this case, after the State attempted to lay a proper foundation through Detective Huggard’s testimony, Defendant’s counsel stated he had “no objection” to the admission of the videotape. Defendant, thus, affirmatively indicated to the court he had no objection to the videotape. Additionally, during trial, Defendant used the surveillance videotape to support his theory that he did not commit aggravated robbery. Defendant’s theory was that he was guilty of, at most, assault. In cross-examining Detective Huggard, defense counsel asked, “And is it

your understanding that [Defendant] never touched Gabriel?” When Huggard responded that he didn’t know, defense counsel asked “Did you view the video tape?” When Huggard responded affirmatively, defense counsel asked “Did you see him at all touch Gabriel?”

¶ 27 Again, when cross-examining Rachel, defense counsel asked if she saw Defendant going through the victims’ pockets. When Rachel stated that she didn’t know, defense counsel asked “You saw the video, right?” Rachel responded affirmatively. The following exchange then took place:

DEFENSE COUNSEL: Did you ever see [Defendant] taking anything out of their pockets?
RACHEL: I don’t know which one it was, but I saw someone patting the [pockets], going through them.
DEFENSE COUNSEL: Was it the two people or one person?
RACHEL: If I recall, there was only one person actually going through the pockets. Not sure who.
DEFENSE COUNSEL: And the one person on the video, was that the person with the dark coat? Or the person with the white shirt?
DEFENSE COUNSEL: Did you see any of them putting their hands inside the pocket?
RACHEL: I seen [sic] one of them putting their hands in Jose’s pocket. I don’t know if this was — I seen a hand going in the pocket and I don’t know if it was from two people or one person.
DEFENSE COUNSEL: And you can’t tell by looking at the video tape, either?

¶ 28 On direct examination defense counsel asked Defendant if he remembered kicking Jose, as the video depicts. Defendant responded that he did remember. Later Defendant testified that he became scared after the attack and contacted his attorney when he found out that he had been caught on the restaurant’s surveillance video and was wanted. Finally, in closing arguments, defense counsel referred to the video to support his theory that Defendant did not plan or carry out the robbery of these victims.

And as you will see on the tape, and what they couldn’t explain is my client never touched Gabriel, never took anything, any property, had no intention to take any property .... Rachel testified .... She remembered specifically what [Defendant] said, ... even though she couldn’t tell you that one minute earlier when she was viewing the video tape whether she saw [Defendant] touch Gabriel or whether she saw [Defendant] take property from either one of them .... I would ask you, ladies and gentlemen, that you hold the future of my client in your hand, and all he wants from you is a fair shake, that you need to read all the jury instructions, remember the facts, look at the video as many times as you ivant, see what involvement my client had, if he touched Gabriel at all, took anything ....

¶29 Defendant’s use of the videotape to support his theory that he did not participate in the robberies of either victim was clearly part of counsel’s trial strategy. Defendant not only indicated to the court he had no objection to the videotape’s admission, he also used the tape himself, in an attempt to further his defense theory. Under these circumstances, Defendant invited any error and we will not consider his plain error argument.

B. Ineffective Assistance of Counsel

¶ 30 Defendant argues that his trial counsel was ineffective for not objecting to the admission of the videotape.

To be successful on this claim, defendant “must [first] show that his trial counsel’s performance was deficient, in that it ‘fell below an objective standard of reasonableness.’ ” Once that is established, defendant must show that “there is a ‘reasonable probability’ that the result would have been different” absent the deficient performance .... Furthermore, “[i]n evaluating defense counsel’s strategy under an ineffective-assistance analysis, ‘we give trial counsel wide latitude in making tactical decisions and will not question such decisions unless there is no reasonable basis supporting them.’ ”

State v. Finlayson, 956 P.2d 283, 293 (Utah Ct.App.1998) (citations omitted).

¶ 31 As discussed above, defense counsel did not object to the admission of the surveillance videotape because he used it as part of his trial strategy to support his theory that Defendant did not commit aggravated robbery. Given this strategy, there was a reasonable basis for trial counsel’s decision to allow the admission of the surveillance videotape. Therefore, because “we give trial counsel wide latitude in making tactical decisions,” id., and because defense counsel’s strategy was reasonable, Defendant has failed to show he received ineffective assistance of counsel.

CONCLUSION

¶ 32 Defendant correctly argues that the offense of robbery includes a “purpose to deprive” element. Defendant, however, did not raise this issue before the trial court and stipulated to jury instructions omitting this element. Defendant therefore is precluded from asserting it on appeal. We also examined the sufficiency of evidence on the alternative ground supporting Defendant’s conviction for aggravated robbery as an accomplice. We conclude that there was ample evidence presented that Defendant actively assisted and encouraged in the robberies of the victims. There was also sufficient evidence presented from which the jury could find that Defendant caused serious bodily injury to Jose. Finally, we determine that it was not plain error for the trial court to admit the surveillance videotape, nor was Defendant’s trial counsel ineffective for failing to object to its admission. Therefore, we affirm Defendant’s convictions.

¶ 33 WE CONCUR: NORMAN H. JACKSON, Presiding Judge, and JAMES Z. DAVIS, Judge.

      . “On appeal, we review the record facts in a light most favorable to the jury's verdict and recite the facts accordingly.” State v. Waldron, 2002 UT App 175,¶ 2, 51 P.3d 21 (quotations and citation omitted).

      . Utah Code Ann. § 76-6-401(3) (1999) defines "purpose to deprive” under the Theft statute as having "the conscious object”:
      (a) To withhold property permanently or for so extended a period or to use under such circumstances that a substantial portion of its economic value, or of the use and benefit thereof, would be lost; or
      (c) To dispose of the property under circumstances that make it unlikely that the owner will recover it.

      . Prior to the May 1, 1995 amendment, the Robbery statute read in relevant part, "Robbery is the unlawful and intentional talcing of personal property in the possession of another from his person, or immediate presence, against his will, accomplished by means of force or fear.” Utah Code Ann. § 76-6-301 (1978).

      . Defendant argues for the first time in his reply brief that the failure to instruct the jury on the element of "purpose to deprive” was plain error, conceding that counsel stipulated to the instruction that did not require the jury to find that Defendant acted with a "purpose to deprive.” Because this issue was not timely raised, we do not address it. See Brown v. Glover, 2000 UT 89, ¶ 23, 16 P.3d 540 ("Generally, issues raised by an appellant in the reply brief that were not presented in the opening brief are considered waived and will not be considered by the appellate court.”).

      . Defendant does not argue that there was insufficient evidence of an intent to deprive in the taking of the two victims’ wallets.


source: Caselaw Access Project

author: THORNE, Judge:

license: Public Domain

text:
    2003 UT App 4
    STATE of Utah, Plaintiff and Appellee, v. Troy REES, Defendant and Appellant.
    No. 20010490-CA.
    Court of Appeals of Utah.
    Jan. 9, 2003.

      H. Don Sharp, Ogden, for Appellant.
    Mark L. Shurtleff and Erin Riley, Assistant Attorney General, Salt Lake City, for Appellee.
    Before JACKSON, P.J., BILLINGS, Associate Presiding Judge and THORNE, J.
   OPINION

THORNE, Judge:

¶ 1 Troy Rees appeals from the trial court’s dismissal of his Petition for Extraordinary Relief. We reverse and remand.

¶2 Following our February 1, 2001 affir-mance of Rees’s criminal conviction for possession of marijuana with intent to distribute, see State v. Rees, 2001 UT App 27, 2001 WL 311418 (affirming Rees’s conviction based in-part upon Rees’s failure to incorporate certain record information necessary to our proper review of his claim), Rees filed a motion to resentence and a petition for extraordinary relief with his sentencing court, under the original criminal case number. In his petition for extraordinary relief, Rees’s attorney, who has represented Rees throughout his trial and appeal, essentially asserted that Rees had lost his opportunity for meaningful appellate review of the conviction due to ineffective assistance of counsel. On May 10, 2001, the trial court dismissed Rees’s petition for extraordinary relief as focused solely on issues previously adjudicated by this court. Rees now appeals this dismissal.

ISSUE AND STANDARD OF REVIEW

¶ 3 Rees’s sole argument on appeal is that the trial court erred in dismissing his petition for extraordinary relief. We review the trial court’s conclusions of law for correctness and its factual findings for plain error. See Parsons v. Barnes, 871 P.2d 516, 518 (Utah 1994).

ANALYSIS

1. Jurisdiction

¶ 4 In response to Rees’s claim, the State argues that because Rees filed his petition for extraordinary relief as a motion before his sentencing court, and not as a separate civil action for post conviction relief under rule 65C of the Utah Rules of Civil Procedure, the trial court was never properly vested with jurisdiction. We disagree.

¶ 5 Generally, the State’s position, that a post conviction petition for extraordinary relief must be filed in a separate civil action under rule 65C of the Utah Rules of Civil Procedure, would be correct. See Utah R. Civ. P. 65C(a)-(b). However, in certain, very limited circumstances, a post conviction petition for extraordinary relief is properly filed under rule 65B(b) and styled as a writ of error coram nobis. See State v. Johnson, 635 P.2d 36, 38 (Utah 1981) (acknowledging the availability of coram nobis relief under rule 65B(i), now rule 65B(b) of the Utah Rules of Civil Procedure); see also United States v. Morgan, 346 U.S. 502, 505-06, 74 S.Ct. 247, 249-50, 98 L.Ed. 248 (1954) (discussing the writ of error coram nobis, its role, and the proper procedure for seeking the writ). Finally, when interpreting a document submitted to the court, rather than being confined to the document’s caption, we look to the substance of the document to determine its nature. See Renn v. Utah State Bd. of Pardons, 904 P.2d 677, 681 (Utah 1995) (“We will look to the substance of the action and the nature of the relief sought in determining the true nature of the extraordinary relief requested.”); Debry v. Fid. Nat. Title Ins. Co., 828 P.2d 520, 522 (Utah Ct.App.1992).

¶ 6 “The writ of error coram nobis is a writ used to correct fundamental errors which render a criminal proceeding irregular and invalid.” Cardall v. United States, 599 F.Supp. 912, 914-15 (D.Utah 1984) (footnote omitted). Coram nobis is a step in a criminal case, see Abel v. Tinsley, 338 F.2d 514, 515 (10th Cir.1964), “and not, like habeas corpus where relief is sought in a separate case and record, the beginning of a separate civil proceeding.” Morgan, 346 U.S. at 505 n. 4, 74 S.Ct. at 249 n. 4. Thus, a petitioner seeking relief through coram nobis should file the petition with the sentencing court. See Johnson, 635 P.2d at 38 (“The appropriate remedy in a case such as this is a motion for relief under Utah Rules of Civil Procedure, Rule 65B(i) [presently embodied in rule 65B(b)], Postconviction hearings, which in this ease should be brought in the sentencing court.”). Finally, under our interpretation of coram nobis, a defendant who has been convicted and has exhausted his normal avenues of appeal may, under the principles of coram nobis, only ask the sentencing court to modify or vacate a judgment. See Johnson, 635 P.2d at 38.

¶ 7 “Relief under the writ of error coram nobis is narrow and allowed ‘only under circumstances compelling such action to achieve justice.’ ” Cardall, 599 F.Supp. at 915 (quoting Morgan, 346 U.S. at 511, 74 S.Ct. at 252). However, “ ‘[t]he present-day scope of coram nobis is broad enough to encompass not only errors of fact that affect the validity or regularity of legal proceedings, but in addition, legal errors of a constitutional or fundamental proportion.’” Tillman v. United States, 32 M.J. 962, 965 (A.C.M.R.1991) (quoting United States v. Wickham, 474 F.Supp. 113, 116 (C.D.Cal.1979)). Included among the limited number of claims that may result in relief being granted through petitions rooted in coram nobis is ineffective assistance of appellate counsel. See Johnson, 635 P.2d at 37-38; Tillman, 32 M.J. at 966.

¶ 8 Here, while Rees’s petition for extraordinary relief fails to articulate a clear or concise claim, our reading of the petition suggests that the petition is predicated on a claim of ineffective assistance of appellate counsel. Moreover, the sole relief Rees requests in his petition is resentencing nunc-pro-tunc to permit him an opportunity to pursue a meaningful appeal. Thus, based merely on the face of the petition, we conclude that Rees’s petition for extraordinary relief is best described as rooted in the ancient writ of error coram nobis, and therefore, the petition was properly filed with Rees’s sentencing court.

II. Dismissal

¶ 9 Rees argues that the trial court erred in dismissing his claim after concluding that it had been previously adjudicated by this court. We review a trial court’s legal conclusions for correctness, and, absent a showing of clear error, we accept the trial court’s findings of fact. See Stewart v. State, 830 P.2d 306, 309 (Utah Ct.App.1992).

¶ 10 In the instant case, Rees’s petition, submitted to his sentencing court, essentially asserted that his appellate counsel was ineffective and that therefore he has been denied his right to the meaningful appeal of his conviction. After reviewing the petition, the trial court, in a short minute entry, dismissed Rees’s petition as focusing solely on issues that had been previously adjudicated by this court. The trial court’s conclusion is incorrect.

¶ 11 In his direct appeal, Rees presented three issues for our review, none of which focused on the effectiveness of his attorney at any level of the process. Moreover, in the memorandum decision addressing Rees’s direct appeal, see State v. Rees, 2001 UT App 27, 2001 WL 311418, we did not address the issue of the effectiveness of Rees’s appellate counsel. Because this issue has never been presented to this court, nor ruled upon by this court, the trial court’s conclusion is incorrect as a matter of law. Therefore, we reverse the trial court’s decision to dismiss Rees’s petition and remand this case for further consideration.

¶ 12 Because Rees’s petition presents a rarely encountered situation—a request for extraordinary relief patterned after the writ of error coram nobis—we clarify the standard under which the trial court should review the petition on remand.

¶ 13 A writ of error coram nobis is not a substitute for a direct appeal. See Tillman, 32 M.J. at 965. Rather, coram nobis is available in “limited circumstances, to modify or vacate a judgment where extra-record facts show[ ] that the defendant ha[s] been deprived of his constitutional right to a fair trial [or meaningful appeal].” Johnson, 635 P.2d at 38. Due to the rarity of petitions styled after the writ of error coram nobis in Utah, we have yet to articulate a clear standard under which trial courts should review these petitions. Therefore, we have examined the approach adopted by courts outside of Utah for assistance and conclude that the standard articulated by the Ninth Circuit Court of Appeals is best suited to our purposes.

¶ 14 In Hirabayashi v. United States, 828 F.2d 591 (9th Cir.1987), after setting forth a detailed account of facts concerning the internment of people of Japanese ancestry during World War II — facts central to the petitioner’s claim — the Ninth Circuit Court of Appeals addressed the nature of coram nobis petitions and established a four-part test that a petitioner must satisfy before coram nobis type relief can be granted. See id. at 594-98. These factors include a showing by the petitioner that (1) an error was made during the proceedings that was unknown to the petitioner at the time; (2) a more traditional avenue of relief is not available to the petitioner; (3) valid reasons exist for the failure to attack the error in a previous proceeding; and “(4) the error was of such a fundamental nature as to render the proceedings irregular and invalid.” Tillman, 32 M.J. at 965 (citing Hirabayashi, 828 F.2d at 604); see also Hale v. United States, No. 99-07, 1999 WL 1087020, *2, 1999- CCA LEXIS 303, at ⅜6 (A.F.Ct.Crim.App. Nov. 9, 1999). In addition to these factors, we would add that the petitioner must also satisfy the requirements set forth in rule 65B and establish that the claim has neither been previously adjudicated, nor is it frivolous on its face. See Utah R. Civ. P. 65B(b)(5).

¶ 15 Thus, to succeed in his petition in the trial court, Rees must first make a threshold showing that his petition contains issues that have not been adjudicated previously and presents issues that are not frivolous on their face. The trial court must then determine whether (1) an error was made during Rees’s appeal that was unknown to him; (2) no more traditional avenue of relief is available

to Rees; (3) valid reasons exist for Reess failure to attack the error in a previous proceeding; and “(4) the error was of such a fundamental nature as to render the proceedings irregular and invalid.” Tillman, 32 M.J. at 965 (citing Hirabayashi, 828 F.2d at 604). If the trial court finds that Rees is able to satisfy each of these requirements, the court must then grant Rees’s petition and reenter his sentence nunc-pro-tunc.

CONCLUSION

¶ 16 Rees’s petition for extraordinary relief is properly filed under rule 65B(b), the successor rule to the writ of error coram nobis. Therefore, the court responsible for imposing sentence on Rees for his underlying conviction is vested with jurisdiction over Rees’s petition. Moreover, Rees’s claim, that he has been denied his right to a meaningful appeal because of the ineffective assistance of his appellate counsel, was not the subject of any prior adjudication in this court; thus, the trial court erred in dismissing Rees’s petition on that basis. Finally, should Rees prevail, the trial court’s authority is limited to merely resentencing Rees nunc-pro-tunc.

¶ 17 WE CONCUR: NORMAN H. JACKSON, Presiding Judge and JUDITH M. BILLINGS, Associate Presiding Judge.

      . While Rees's counsel failed to actually adopt this term, the thrust of the petition is found in paragraphs seven through ten, wherein Rees’s counsel admits having failed to diligently supervise certain, possibly material, aspects of Rees’s appeal.

      . While we are aware that rule 65C of the Utah Rules of Civil Procedure, dealing specifically with post conviction petitions for extraordinary relief, was enacted after State v. Johnson, 635 P.2d 36 (Utah 1981) was decided, this fact has no impact on our present decision. First, rule 65B(b) applies to post conviction petitions asserting claims for wrongful restraint on personal liberty not governed by rule 65C. See Utah R. Civ. P. 65B(b)(l). Second, our supreme court, at least obliquely, reaffirme'd its Johnson holding, and the survival of coram nobis type relief, in both State v. Jiminez, 938 P.2d 264, 265 (Utah 1997), and State v. Hallett, 856 P.2d 1060, 1062 n. 2 (Utah 1993).

      . We find it concerning that counsel representing Rees in this matter, and arguing that Rees's appellate counsel was ineffective, is the same attorney who represented Rees throughout his criminal trial and appeal. However, because our rules only restrict such behavior on appeal, see State v. Garrett, 849 P.2d 578, 580 n. 3 (Utah Ct.App.1993), we cannot dismiss Rees’s claim on this basis. However, we urge both Rees and his counsel to review rule 1.7(b) of the Utah Rules of Professional Conduct concerning the conflict of interest implicated in allowing counsel to argue his own ineffectiveness.


author: PER CURIAM.

text:
    2003 WY 6N
    In the Matter of Twenty Two Firearms, and Assorted Ammunition Components. James Elmer DOBSON, Appellant (Interested Party), v. Steve J. STAHLA, Sheriff of Crook County, Appellee (Plaintiff).
    No. 02-55.
    Supreme Court of Wyoming.
    Jan. 17, 2003.
    Pro se, Representing Appellant.
    Bill Rice, Deputy County and Prosecuting Attorney of Crook County, Sundance, Wyoming, Representing Appellee.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   PER CURIAM.

[¶ 1] The pro se appellant, James Elmer Dobson (Dobson), a convicted felon, appeals from a Judgment of Forfeiture that ordered the sale of twenty-two firearms and assorted ammunition components seized from him. Concluding that Dobson’s brief is unsupported by the record, cogent argument, or citation to pertinent authority, we summarily affirm this appeal pursuant to W.R.A.P. 1.03.

ISSUES

[¶ 2] Dobson presents the following questions for review:

I. Are adversarial proceedings still legal in the State of Wyoming?
II. Is the transfer of personal property by and through a Power of Attorney legal in the State of Wyoming?
III. Is the Constitution of [the] United State of America, and the Constitution of the State of Wyoming still recognized by the Supreme Court for the State of Wyoming?

FACTS

[¶3] On December 13, 2001, the Sheriff of Crook County filed, in the district court, a Petition for Order to Show Cause. The petition alleged that the sheriff was in possession of twenty-two firearms and various ammunition components seized from Dobson. It further alleged that Dobson was a convicted felon and, as such, return of the firearms and ammunition to Dobson would be illegal pursuant to 18 U.S.C. § 922(d)(1). The petition requested that the district court issue an order for Dobson to show cause why the firearms and ammunition should not be “sold or forfeited and sold at public auction or transferred to the use of the Crook County Sheriffs Office.” One week later, the district court, relying on Wyo.Stat.Ann. § 7-2-105 (LexisNexis 2001), issued the requested order to show cause.

[¶4] On February 7, 2002, the matter came before the district court for a hearing. Dobson personally appeared. Following the hearing, the district court entered its Judgment of Forfeiture, which ordered that the firearms and ammunition “shall be sold at public auction pursuant to W.S. 7-2-105(k).” Dobson appealed. In his brief, the sheriff asserts that he has retained the weapons and ammunition pending resolution of this appeal.

DISCUSSION

[¶ 5] We have often stated ... that we expect pro se litigants to comply with the Wyoming rules of appellate procedure in the same way that trained lawyers are expected to perform. Stone v. Stone, 842 P.2d 545, 547 (Wyo.1992); Hamburg v. Heilbrun, 889 P.2d 967, 968 (Wyo.1995); Korkow v. Markle, 746 P.2d 434, 435 (Wyo.1987); Pinther v. Webb, 983 P.2d 1221, 1223 (Wyo.1999). While we may make allowances for pro se litigants, they are not excused from the requirement that their brief be supported by cogent argument and citations to pertinent authority. Baker v. Reed, 965 P.2d 1153, 1154 (Wyo.1998).

Stone v. Stone, 7 P.3d 887, 890-91 (Wyo.2000). “For more than thirty-five years, this Court has summarily affirmed cases or issues in cases that are not presented with cogent argument or pertinent authority.” Hamburg v. Heilbrun, 891 P.2d 85, 87 (Wyo.1995); see also State ex rel. Reece v. Wyoming State Board of Outfitters and Professional Guides, 931 P.2d 958, 959 (Wyo.1997). In addition, “[u]nder this court’s long-standing precedent, this court will not frame the issues for the litigants and will not consider issues not raised by them and not supported by cogent argument and authoritative citation.” State v. Campbell County School District, 2001 WY 90, ¶ 35, 32 P.3d 325, ¶ 35 (Wyo.2001).

[¶ 6] In addition to failing to comply with various provisions of W.R.A.P. 7.01 regarding content of the brief, Dobson’s brief is not supported by cogent argument, citation to pertinent authority, or the record on appeal. With respect to “issues” one and three, they are nothing more than vitriol. Clearly, adversarial proceedings are legal in this state, and the cited constitutions remain the law of this state. As for issue number two, Dobson relies on a power of attorney appended to his brief. The power of attorney is not part of the record on appeal, and Dobson has made no attempt to have the record supplemented or modified. See W.R.A.P. 3.04. Because the power of attorney is not properly part of the record on appeal, Dobson is precluded from relying on it. See Basolo v. Gose, 994 P.2d 968, 969-70 (Wyo.2000). Even if the power of attorney were part of the record on appeal, Dobson presents no cogent argument to establish how the power of attorney (in which Dobson grants power of attorney to relatives) would preclude the judgment of forfeiture.

[¶ 7] Furthermore, Dobson’s brief does not cite to a single case, perhaps with good reason. A recent Wyoming case, Taylor v. State, 7 P.3d 15 (Wyo.2000), clearly supports the district court’s ruling. There, this Court wrote:

[W]e agree that 18 U.S.C. § 922(d)(1) prevented the return to Taylor of the illegally seized items. 18 U.S.C. § 922(d)(1) states that it is “unlawful for any person to sell or otherwise dispose of’ any firearm or ammunition to any person who is under indictment or convicted of a crime punishable by imprisonment for a term exceeding one year. Since Taylor’s pending charge fell within the prohibitions of this section, Taylor could not lawfully demand the return of the firearms and ammunition.
The same reasoning applies to Taylor’s second request for return of these items at sentencing. As a convicted felon, Taylor was not entitled to possess firearms or ammunition. 18 U.S.C. § 922(g); see also United States v. Bagley, 899 F.2d 707, 708 (8th Cir.1990), cert, denied, 498 U.S. 938, 111 S.Ct. 343, 112 L.Ed.2d 307 (1990). Therefore, the district court did not err in ordering these items to remain in the possession of law enforcement, subject to Wyo. Stat. Ann. § 7-2-105 (Lexis 1999)

7 P.3d at 23-24. Under this precedent, Dob-son, as a convicted felon, was not entitled to possess firearms or ammunition, and he has cited to no authority that establishes otherwise.

[¶ 8] Finally, even if this Court were to decipher Dobson’s arguments, we have no means of reviewing the evidence received at hearing. Dobson failed to provide this Court with a transcript to review, and he has made no attempt to prepare a statement of the evidence. In the absence of a transcript or an approved statement of the hearing as provided under W.R.A.P. 3.03, “the regularity of the trial court’s judgment and the competency of the evidence upon which that judgment is based must be presumed.” Burt v. Burt, 2002 WY 127, ¶ 7, 53 P.3d 101, ¶ 7 (Wyo.2002); Thomas v. Thomas, 983 P.2d 717, 721 (Wyo.1999). The responsibility for presenting a sufficient record fell upon Dob-son, and he has failed to fulfill that responsibility. Feaster v. Feaster, 721 P.2d 1095, 1096 (Wyo.1986).

[¶ 9] With no transcript to review, no cogent argument, and no citation to pertinent authority, we conclude that the district court’s Judgment of Forfeiture must be, and hereby is, summarily affirmed pursuant to W.R.A.P. 1.03.


author: EASTAUGH, Justice.

text:
    Alfred W. HOLDING, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee.
    No. S-10401.
    Supreme Court of Alaska.
    Jan. 31, 2003.
    Lawrence A. Pederson, Paul J. Nangle & Associates, Anchorage, for Appellant.
    Linda J. Johnson, Deputy Municipal Attorney, and William A. Greene, Municipal Attorney, Anchorage, for Appellee.
    Before FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

EASTAUGH, Justice.

I. INTRODUCTION

The Municipality of Anchorage licenses the operation of “adult-oriented establishments.” By ordinance it forbids persons from advertising adult-oriented establishments unless they are licensed to operate or maintain the business. The municipality issued Alfred Holding five citations for violating this ordinance by advertising for adult-oriented establishments he was not licensed to operate or maintain. Holding challenged the ordinance on its face and as applied to him. A hearing officer found against him and the superior court affirmed. We affirm, because Holding had no vested property right to advertise that somehow would have given him “grandfather rights” to advertise the establishments notwithstanding the prohibition. We also reject his claim that the ordinance unconstitutionally interfered with his rights of commercial free speech, because we conclude that the restriction directly advances a substantial government interest and is no more restrictive than necessary to advance that interest.

II. FACTS AND PROCEEDINGS

Alfred Holding owns real properties within the Municipality of Anchorage on which five adult-oriented businesses are operated: Fantasy’s Escort Service, Toyko Club, Alaskan Trapline, Playmates, and Oasis. Holding is not licensed to operate adult-oriented businesses. He leases the properties to third persons who obtain the proper licenses and operate the businesses. He visits the businesses at least once a day to ensure that there are no drugs or alcohol, and removes persons running the businesses from the premises if they break the law. He has only an oral lease with each of the business operators. Holding places and pays for the businesses’ telephone lines and advertising.

The Municipality of Anchorage issued Holding five citations for violating a code subsection forbidding persons from advertising adult-oriented businesses unless they are licensed to operate those businesses. He was fined $75 for each violation. Holding admitted to the officers who issued the citations and in his request for a hearing that he had paid for the businesses’ advertising. He claimed that enforcement of the code subsection violated his “grandfather rights” to advertise the businesses and unconstitutionally impaired his rights of free speech.

A municipal hearing officer ruled that even though Holding had been providing telephone service and advertising to the leased businesses before the code section was adopted, Holding had “failed to provide any evidence” that he had grandfather rights that would preclude applying the license requirement. The hearing officer, relying on Central Hudson Gas & Electric v. Public Service Commission, also held that Holding’s First Amendment commercial free speech rights were not violated because “there is no prohibition of advertising, only a requirement that a license be obtained before the advertisement is purchased.” The hearing officer therefore ordered Holding to pay the $375 fine for the five violations of AMC 10.40.050.

Holding appealed to the superior court, which affirmed. It held that the code provision Holding cited in support of his claim of grandfather rights — AMC 21.55.030 — applied only to nonconforming land uses and did not entitle Holding to the relief he sought. The superior court found that Holding owned the five businesses, and that Holding did not present evidence sufficient to prove that the licensing code subsection AMC 10.40.050, which “promote[s] the public health and welfare,” abridged Holding’s livelihood. It held that, at most, the code subsection challenged by Holding requires him to obtain a license. It held that the code does not take his property or impede his businesses.

Finally, the superior court held that Holding’s First Amendment commercial speech rights were not violated because Holding was not prohibited from advertising; he was only prohibited from advertising without a license. It held that Holding did not have an interest in advertising for a business he claimed he did not own and that, even if he did have an interest, it would not be enough to overcome the municipality’s interest in keeping track of who owns and runs adult-oriented businesses by requiring licenses.

Holding appeals.

III. DISCUSSION

A. Standard of Review

We review questions of law, including matters of statutory interpretation, by employing our independent judgment where the questions of law do not involve agency expertise. When the question does implicate agency expertise, we apply the reasonable basis standard in which “ ‘a reviewing court ... considers] factors of agency expertise, policy, and efficiency.’ ” We independently review questions of constitutional law. We review an administrative agency’s findings of fact for clear error, “reversing them only if they are not supported by substantial evidence on the whole record.”

B. Holding’s Claim of a Grandfather Right To Advertise

Holding argues that enforcing AMC 10.40.050(B)(5) against him reduces the value of businesses that existed before passage of the code subsection. He asserts that he has a vested right in the advertising he provides to the five businesses operating on his properties, and that his practice of advertising is protected against enforcement because it is a “nonconforming use.” He argues that the value of his property interest would be diminished if he is unable to provide his tenants with the valuable business attributes of continuity in established business names, telephone numbers, and advertising. The code subsection’s restriction on his ability to offer continuous advertising — -which he asserts is available only if he contracts and pays for it — thus allegedly violates Holding’s grandfather rights.

We perceive no right to pursue a preexisting “nonconforming use” in this case. The municipality’s code provision expressly addressing the issue protects only nonconforming uses of land. It does not apply to off-site advertising of business names and telephone numbers. And, as the municipality argues, AMC 10.40.050 granted no grandfather rights.

The municipality notes the seeming tension between Holding’s contentions that he does not own, operate, or control the businesses and his claim of vested property rights in the telephone numbers and in advertising the businesses.

Holding’s assertion that he does not own or operate the businesses is fatal to his claim that he has a vested interest in being able to advertise them personally. Holding’s valid interest in maximizing the rental value and profitability of his properties does not mean that he has a protectable property right that frees him from any governmental regulation whatsoever.

The cases Holding relies on do not justify reversal. Holding quotes Bidwell v. Scheele to support his argument that vested rights are protected against state action by the Fourteenth Amendment of the United States Constitution and article I, section 7 of the Alaska Constitution. But Holding has no vested rights here. Holding also relies on Frontier Saloon, Inc. v. Alcoholic Beverage Control Board. We there recognized that due process protects an interest in a lawful business. The business in that case was a bar whose alcohol distribution was regulated by the Alcoholic Beverage Control Board. We held that due process protected the license to sell alcohol, in part because of the economic loss that would result from suspending the license.

Bidwell and Frontier Saloon do not stand for the proposition that enforcing AMC 10.40.050(B)(5) against Holding deprives him of a vested interest in advertising businesses that he is not licensed to operate or maintain.

Holding seems to suggest that enforcement of the advertising prohibition by the municipality would result in a compensable governmental taking of his property. In Ba-lough v. Fairbanks North Star Borough, we held that the borough’s rezoning and subsequent denial of grandfather rights to a landowner who used her property as a junkyard did not constitute an unconstitutional taking. First, we held that there was no per se taking because “[wjhile the ... decision to deny Balough grandfather rights would terminate her right to use her property as a junkyard, the decision did leave her with economically feasible use[s] of her property.” Second, we held that the government’s action did not amount to a taking because it was a legitimate response to residents’ concerns about safety and aesthetics, because the rezoning did not create the costs Balough incurred, and because the rezoning did not interfere with reasonable investment-backed expectations.

In this case, there was no per se taking because the subsection does not interfere with Holding’s ability to lease his properties. The enforcement of the subsection also does not constitute a taking under the three-step analysis. The government’s interest in regulating adult-oriented businesses by knowing who owns and operates them is legitimate. The subsection has no legally significant economic impact on Holding because he may continue to lease his property, even though it may be on somewhat less valuable terms. There is no unavoidable economic loss to the businesses: if Holding is not allowed to advertise without a license, he can either obtain a license to operate and then continue to advertise, or the tenant can take on the advertising expenses. Lastly, it does not interfere with reasonable investment-backed expectations.

We conclude that there is no merit to Holding’s claim that enforcing the prohibition violated his grandfather rights. Holding’s interest in preserving continuity of telephone numbers and advertising accounts did not vest rights in him that rendered the subsection unenforceable as to him.

C. Holding’s Commercial Free Speech Rights

Holding next argues that restricting his ability to advertise interferes with his rights of commercial free speech as protected by article I, section 5 of the Alaska Constitution, and the First Amendment of the United States Constitution. He discusses the Anchorage regulation in the context of the four-prong test described in Alaska Transportation Commission v. AIRPAC, Inc. First, he asserts that the activities — including his lessees’ acts in operating adult-oriented businesses and his acts in placing and paying for the advertising — are legal, and that because the advertisements do not say who placed the ads, they are not misleading. Second, Holding concedes the substantiality of the governmental interests in protecting the general welfare, minimizing a decline in property values, minimizing criminal activity, and protecting families. Holding challenges the third prong by arguing that the subsection does not advance the governmental purposes because regulating who places ads “does not serve to protect property values, minimize crime, or protect families.” Finally, Holding claims that it is difficult to determine whether the ordinance is more restrictive than necessary to advance the governmental interests because, he argues, it does riot further a legitimate governmental interest. He therefore concludes that the subsection is unconstitutional.

The hearing officer ruled that the subsection did not violate Holding’s free speech rights because it only required Holding to get a license before he advertises; the subsection did not altogether prohibit him from advertising. The superior court wondered whether Holding meant to assert that his free speech rights entitled him to advertise for any business he does not own. It concluded that the restriction, as part of a larger regulatory scheme, promotes responsibility and discourages misleading information.

In Barber v. Municipality of Anchorage, we recognized that commercial speech commands less protection than noncommercial speech. We said that the First Amendment does not impede the state from ensuring that commercial information is not misleading.

We held that a content-neutral restriction on sign-posting was not an unconstitutionál restriction on commercial speech because “the questioned ordinance is narrowly tailored to achieve the Municipality’s aesthetic goal of eliminating visual blight, and ... alternative means of communication remain available to Barber.”

The ordinance here does not restrict what the advertisements can say; it only restricts who can place the advertisements. But just because the law does not restrict what can go into the advertisement does not necessarily mean the law is a content-neutral regulation. The Anchorage Municipal Code contains no general requirement that a person must have a license to operate a business before he or she can advertise for that business. Instead, the code only prohibits persons from advertising for adult-oriented entertainment establishments, masseuses, private detectives, and public concerts without having municipal licenses to conduct those activities.

The situation is similar to one addressed by the United States Supreme Court in Carey v. Broim. In that case, the Court struck down a state statute that prohibited picketing of residences or dwellings but exempted “the peaceful picketing of a place of employment involved in a labor dispute.” Although the law did not in any way regulate what the picketers could say, the Court nonetheless observed that the regulation was a content-based restriction on speech: “It is, of course, no answer to assert that the ... statute does not discriminate on the basis of the speaker’s viewpoint, but only on the basis of the subject matter of his message.”

The Anchorage ordinance does not limit what an advertisement for an adult-oriented entertainment establishment may contain. It does, however, limit the topics about which a party may advertise without a license to operate the subject of the advertisement. For example, under the Anchorage Municipal Code persons are free to advertise for validly-licensed used automobile display lots even if they do not have the license to operate them. Similarly, a person who does not have the license to operate a licensed carnival may advertise for it. But under the AMC, only the licensed operator may advertise for an adult-oriented entertainment establishment or a public concert.

Despite the nature of the ordinance, we have conducted a Central Hudson analysis and we conclude that AMC 10.40.050(B)(5) does not impermissibly interfere with Holding’s commercial free speech rights.

First, the subsection regulates commercial speech concerning a lawful activity — adult-oriented entertainment — and the advertisements are not misleading.

Second, as Holding concedes, the municipality’s interest in regulating adult-oriented businesses is substantial. The preamble to the ordinance explains that regulating and licensing adult-oriented establishments protect the general welfare, health, and safety of residents, maintains property values, reduces the level of criminal activity, and enforces community standards of morality.

Third, limiting the ability to advertise for adult-oriented businesses to those persons licensed to operate those businesses directly advances the municipality’s interests. The subsection closed a significant loophole in the regulation. Holding invokes the lack of operator continuity as his justification for placing advertisements to achieve business-name and telephone continuity. But Holding’s justification for advertising is the very reason for closing the loophole. By forcing Holding to become licensed, or by forcing the license-holders to place their own advertisements, the subsection encourages compliance with municipal regulation. It also encourages owners like Holding to lease to reliable operators. And it may discourage unscrupulous owners from tacitly permitting and profiting from improper on-premises activities while periodically replacing lessees to avoid complete closure. The municipality argues that the ordinance prevents those who advertise adult-oriented entertainment establishments from operating without a license. The municipality further asserts that regulation of these establishments “prevent[s] them from degenerating into prostitution houses and [prevents] other criminal activity from occurring on the premises.... ” We find this a plausible explanation that is consistent with the legislative purposes expressed in the ordinance.

Operator turnover diminishes the ability to regulate on-site activities. But given this lack of operator continuity, it is reasonable for the municipality to regulate an activity, perhaps the only activity — the placing and paying for advertising — that has continuity.

Fourth, the subsection is no more restrictive than necessary to advance the state’s interests. The only precondition for advertising the business — a license — is also a precondition for operating or maintaining the business. It does not irrevocably prohibit Holding from advertising. He does not claim that he is ineligible to become a license holder. We therefore assume that the subsection as applied to Holding is narrowly tailored and allows him to advertise if he submits himself to the valid regulatory scheme by becoming licensed.

Holding’s free speech rights are not unconstitutionally infringed by AMC 10.40.050(B)(5).

IV. CONCLUSION

For these reasons we AFFIRM the superi- or court’s decision on appeal and the findings of fact, conclusions of law, and final decision of the hearing officer.

      . See Anchorage Municipal Code (AMC) 10.40.050 (1994). AMC 10.40.050(B)(1) states: "Except as provided in subsection B.4 of this section, from and after May 1, 1994, no adult-oriented establishment shall be operated or maintained in the municipality without first obtaining a license to operate issued by the municipal clerk.” AMC 10.40.050(B)(5) states: "No person shall advertise or offer services regulated by this chapter unless they are licensed to provide such services pursuant to this chapter.”

      . 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980).

      . Alaska Transp. Comm'n v. AIRPAC, Inc., 685 P.2d 1248, 1252 (Alaska 1984).

      . Id. at 1251.

      . Tlingit-Haida Reg’l Elec. Auth. v. State, 15 P.3d 754, 761 (Alaska 2001).

      . Id. (internal quotation marks omitted).

      . AMC 21.55.030 provides in pertinent part:
      Where, at the time of the original passage of applicable regulations, lawful use of land existed which would not be permitted by the regulations thereafter imposed by chapters 21.35 through 21.50, and where such use involves no individual structure other than small or minor accessory buildings, the use may be continued so long as it remains otherwise lawful... .

      .355 P.2d 584, 586 (Alaska 1960).

      . 524 P.2d 657 (Alaska 1974).

      . Id. at 659-60.

      . 995 P.2d 245 (Alaska 2000).

      . The two categories of per se takings are: "(1) cases of physical invasion and (2) cases where a regulation denies a landowner of all economically feasible use of the property.” Id. at 265.

      . Id. at 266.

      . The three factors that the court considers in deciding if the government's actions resulted in a taking are: "(1) the character of the governmental action; (2) its economic impact; and (3) its interference with reasonable investment-backed expectations.” Id. at 265.

      . 685 P.2d 1248 (Alaska 1984). In that case we adopted the test first articulated in Central Hudson v. Public Service Commission, 447 U.S. 557, 564, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980), and reiterated in Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 68, 103 S.Ct. 2875, 77 L.Ed.2d 469 (1983):
      First, we determine whether the expression is constitutionally protected. For commercial speech to receive such protection, it at least must concern lawful activity and not be misleading. Second, we ask whether the governmental interest is substantial. If so, we must then determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than necessary to serve that interest.

        AIRPAC, 685 P.2d at 1253 (internal quotation marks and citation omitted).

      . 776 P.2d 1035, 1037 (Alaska 1989).

      . Id. at 1038.

      . AMC 10.40.050(B)(5).

      . AMC 10.40.010(B).

      . AMC 10.40.020(A).

      . AMC 10.45.010(A).

      . 447 U.S. 455, 100 S.Ct. 2286, 65 L.Ed.2d 263 (1980).

      . Id. at 457, 100 S.Ct. 2286.

      . Id. at 462 n. 6, 100 S.Ct. 2286; see, e.g., City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 429, 113 S.Ct. 1505, 123 L.Ed.2d 99 (1993). In Discovery Network, the Court characterized as content-based a city ordinance that prohibited the distribution of commercial handbills on public property but allowed the distribution of newspapers. Even though there was no evidence that the ordinance was motivated by animus toward any particular messages in the commercial handbills, the Court noted that the law was content-based because "whether any particular newsrack falls within the ban is determined by the content of the publication resting inside that newsrack.”

      . AMC 10.20.043.

      . AMC 10.45.030.

      . We recognize that some debate exists over the proper level of scrutiny for content-based restrictions on commercial speech. The debate began with the United States Supreme Court's decision in R.A.V. v. City of St. Paul, 505 U.S. 377, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992). The Court there struck down a city bias-motivated crime ordinance that prohibited the display of symbols which one knows or should know “arouses anger, alarm, or resentment in others on the basis of race, color, creed, religion or gender.... ” The Court applied strict scrutiny to what it recognized was a content-based restriction on pro-scribable speech. After R.A.V., some lower courts reasoned that if content-based restrictions on the "fighting words” at issue in R.A.V. received strict scrutiny, content-based restrictions on commercial speech should also receive strict scrutiny, because commercial speech has historically received more protection than fighting words. See Citizens United for Free Speech II v. Long Beach Township Bd. of Comm’rs., 802 F.Supp. 1223, 1233 (D.N.J.1992) (applying strict scrutiny to content-based restriction on commercial speech). Several courts examined the issue without deciding which level of scrutiny to apply. See Valley Broad. Co. v. United States, 107 F.3d 1328, 1331 n. 3 (9th Cir.1997); MD II Entm’t, Inc. v. City of Dallas, 28 F.3d 492, 495 (5th Cir.1994); Hornell Brewing Co. v. Brady, 819 F.Supp. 1227, 1232 (E.D.N.Y.1993). The Supreme Court has not directly addressed this issue, but decisions since R.A.V. suggest that the Central Hudson test remains the proper standard for regulations of commercial speech. In Greater New Orleans Broadcasting Ass’n v. United States, 527 U.S. 173, 119 S.Ct. 1923, 144 L.Ed.2d 161 (1999), the Court applied the Central Hudson test to a federal law that prohibited some broadcasters from carrying advertisements for private casino gambling. This was the same statute the Ninth Circuit examined in Valley Broadcasting when it discussed the debate over the proper level of scrutiny for content-based restrictions on commercial speech. 107 F.3d at 1331 n. 3. See also United States v. Edge Broad. Co., 509 U.S. 418, 113 S.Ct. 2696, 125 L.Ed.2d 345 (1993).

      . Anchorage, Alaska Ordinance No. 94-145(S) (Aug. 23, 1994).


text:
    Ronald WHALEN and Carol Whalen, Appellants, v. Co-Chair Mark HANLEY and Co-Chair Richard Foster of the State of Alaska House Finance Committee, and Representative Terry Martin, Appellees.
    No. S-9824.
    Supreme Court of Alaska.
    Jan. 31, 2003.

      Ronald E. Whalen, pro se, and Lawrence Curt Delay, Friday Harbor, Washington, for Appellants.
    Susan D. Cox, Assistant Attorney General, and Bruce M. Botelho, Attorney General, Juneau, for Appellees Mark Hanley and Richard Foster.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

EASTAUGH, Justice.

I. INTRODUCTION

Legislative immunity protects legislators with respect to “any statement made in the exercise of [their] legislative duties.” A state employee sued legislators for defamation. He claimed that they attached defamatory information to minutes of a legislative finance committee meeting in which legislators discussed state claims to recover from him and other state employees payments they were allegedly ineligible to receive. Because the legislators’ duties clearly included conducting the meeting, discussing the payments, and issuing meeting minutes, we affirm the superior court’s dismissal of the lawsuit.

II. FACTS AND PROCEEDINGS

Ronald Whalen was an employee of the State of Alaska’s Marine Highway System. He and other Alaska Marine Highway System employees became the subjects of an investigation into their eligibility to receive cost-of-living-differential (COLD) payments. In June 1995 Mark Boyer, Commissioner of the Alaska Department of Administration, sent an interoffice memorandum to Jim Ayers, chief of staff to Governor Tony Knowles, discussing claims against Whalen and other employees and possible settlement of those claims. The state entered into an agreement with the workers in August 1995. As part of the agreement, all actions the state had taken against Whalen were “vacated and dismissed with prejudice.”

On March 20, 1996 Representatives Mark Hanley and Richard Foster, the co-chairs of the House Finance Committee, conducted a meeting of that committee; also attending were eight other legislators, Commissioner Boyer, and other members of the executive branch. During the meeting the legislators discussed receipt of COLD payments by the Marine Highway System employees who were allegedly ineligible to receive COLD payments at the higher rate paid to residents, and discussed the settlement of the state’s recovery claims. Ronald Whalen and his wife Carol allege that Commissioner Boyer’s June 1995 memorandum was attached to the minutes of this meeting, and that the whole document was disseminated to the public. On March 21, 1996 the Anchorage Daily News published a story about the COLD payments and the settlement. The story identified Ronald Whalen and other Alaska Marine Highway System employees by name.

Ronald Whalen made several public information requests for documents and tapes relating to the March 1996 committee meeting. He contacted Kathy Holmquist, then Senate Finance Committee secretary, to request a copy of the committee meeting minutes and the June 1995 Boyer memorandum. Although Holmquist’s response to Whalen included the Boyer memorandum, the parties dispute whether the Boyer memorandum was also included in the materials disseminated to the public after the March 1996 meeting. Holmquist explained in an August 1996 letter that “only an excerpt (paperclipped in the packet) with no accompanying attachment was before House Finance members when [the] March 20, 1996, discussion occurred.”

The Whalens filed a superior court defamation complaint in February 1998. Their amended complaint asserted defamation claims against the State of Alaska; Representatives Mark Hanley, Richard Foster, and Terry Martin; Senators Rick Halford and Steve Frank; state employee Kathy Holm-quist; and twenty unnamed state employees. The amended complaint alleged that the state defendants had defamed Ronald Whalen and that Carol Whalen had also suffered damages. The state defendants filed motions for dismissal under Alaska Civil Rule 12(b) and for summary judgment under Alaska Civil Rule 56. The superior court granted the motion to dismiss the claims against Senators Halford and Frank and Ms. Holm-quist. The superior court dismissed by summary judgment the claims against the remaining defendants in May and July 2000. The superior court issued its final judgment in July 2000.

The Whalens appeal the summary judgments granted to Representatives Han-ley, Foster, and Martin. They do not appeal the dismissal of the claims against Senators Halford and Frank and Ms. Holmquist. The superior court dismissed the claims against the state after the plaintiffs agreed that AS 09.50.250(3) granted the' state immunity against defamation suits. The Whalens do not appeal the dismissal of their claims against the state.

III. DISCUSSION

A. Standard of Review

We review a grant of summary judgment de novo, viewing the facts presented in a light most favorable to the non-movant. This review involves determining whether any genuine issues of material fact exist. A grant of■ summary judgment will be upheld if there are any grounds to support the result reached by the trial court.

We apply our independent judgment to questions of constitutional law and statutory interpretation, giving a reasonable and practical interpretation in accordance with common sense.

B. Because Representatives Hanley and Foster Acted Within the Scope of Their Legislative Duties, Legislative Immunity Protects Them from the Whalens’ Defamation Claims.

The Whalens advance various theories why legislative immunity does not bar their claims against Representatives Hanley and Foster. Thus, they contend that Representatives Hanley and Foster had no legislative duty to question the Department of Administration’s authority to settle the claims against Whalen and others. They contend that Representatives Hanley and Foster lost their immunity by knowingly or recklessly disregarding the falsity of their statements.

They assert that the defendants lost then-immunity by excessive publication, by failing to restrict their statements to executive session, and by failing to redact information identifying Ronald Whalen. They argue that defendants had only conditional immunity, which they lost by publishing statements that did not advance a legislative purpose. And they contend that by exceeding their authority, the defendants lost their immunity because they acted outside the “sphere of legitimate legislative activity.”

At the heart of the Whalens’ arguments is their contention that legislative immunity only protects legislators with respect to statements they make in the exercise of then-legislative duties. They argue that Representatives Hanley and Foster acted outside the scope of their legislative duties when they “questioned] Boyer’s authority to enter into a settlement on the COLD payment issue.” The Whalens argue that “only the State Affairs Committee has jurisdiction over activities of the Department of Administration, and therefore only that Committee had the legislative duty to question the actions of that department.” Representatives Han-ley and Foster respond that the review and discussion of the COLD settlement at a legislative committee hearing “meets the definition of a core legislative activity that is protected by immunity.”

The Alaska Constitution and the Alaska Statutes both provide immunity to legislators for statements made in the exercise of their legislative duties. We have held that legislative duties include “activities internal to the legislature, such as voting, speaking on the floor of the House or in committee, authoring committee reports, in-traducing legislation, and questioning witnesses in legislative hearings.” Legislative immunity allows the legislature to question acts by the executive without intimidation. It also protects legislators from “the burdens of forced participation in private litigation.”

Legislative immunity, where it applies, is absolute, and not merely qualified. To avoid summary judgment, the Whalens at a minimum had to demonstrate that Representatives Hanley and Foster had some personal and identifiable role outside them legislative duties in disseminating the Boyer memorandum. Representatives Hanley and Foster’s motion for summary judgment successfully argued that even if the document the Whalens allege was affixed to the minutes of the hearing — the defendants contended that it was not — “such actions are quintessential legislative acts that fall squarely within the scope of legislative immunity.”

Legislative immunity under Alaska’s constitution is patterned after the federal speech or debate clause. We therefore look to the United States Supreme Court’s interpretation of the scope of federal immunity as a model for determining the scope of legislative immunity under Alaska’s constitution: The Supreme Court interprets federal legislative immunity broadly for actions properly within the legislative sphere and declines to impose liability regardless of whether the Court considers the legislative acts useful or necessary. “[W]e have no authority to oversee the judgment of the Committee ... or to impose liability on its Members if we disagree with their legislative judgment.”

Ronald “Whalen’s affidavit opposing summary judgment merely states that on March 20, 1996 the House Finance Committee discussed the COLD payments and the settlement, and that the minutes of that meeting, when published, included the Boyer memorandum. But the Whalens made no showing that the discussion of the payments or the settlement was outside the legislative sphere.

At most Ronald Whalen’s affidavit attributes the distribution of the identifying documents to Representatives Hanley and Foster. Although there may be a genuine factual dispute about whether they actually had any part in the public dissemination of the Boyer memorandum, it is not a material dispute. Assuming they caused its public distribution, the question here is whether they are nonetheless protected by legislative immunity, as the superior court held.

This case does not require us to define with precision the ultimate limits of protection conferred by legislative immunity, or the scope of a committee’s legislative duties protected by immunity. Taking all permissible factual inferences in favor of the Whalens, it cannot reasonably be said that these legislators acted outside the legislative sphere. The alleged publication of “Whalen’s name occurred while Representatives Hanley and Foster were carrying out legislative duties.

The Whalens’ remaining appellate contentions concerning immunity require no extended discussion. Some — such as arguments that the legislators knowingly or recklessly made false statements or should have limited the publication — are founded on an inaccurate assumption that legislative immunity is conditional, not absolute.

We therefore hold that the superior court did not err in granting summary judgment to Representatives Hanley and Foster.

C. The Superior Court Did Not Err by Dismissing Carol Whalen’s Claim.

Carol Whalen argues that she was also entitled to assert a defamation claim, and that the superior court erred in dismissing her individual claim on the alternative ground she had no cause of action.

We do not need to decide whether Carol Whalen could assert an actionable defamation claim, even though, as the superior court observed, “[tjhere is no evidence that indicates any reference to the wives in either the House Finance Committee meeting or the minutes.” Whatever the possible merits of her claim, it is barred by absolute legislative immunity for the reasons we discussed above. We therefore do not consider the superior court’s alternative ground for dismissing her individual claim.

IY. CONCLUSION

We AFFIRM the summary judgment for Representatives Hanley and Foster.

      . Alaska Const, art. II, § 6; AS 24.40.010.

      . The agreement provided in part:
      The actions taken against ... Ronald E. Whalen regarding COLD eligibility will be vacated and dismissed with prejudice. However, [he] must re-certify and be found eligible for COLD [according to state residence requirements] in order to again receive COLD payments.... Mr. Whalen release[s] the State from any and all claims or liability relating to COLD up to the date of the execution of this agreement.

      . The Whalens were joined in the original complaint by two other employees and their wives. These four plaintiffs have not appealed.

      . The superior court converted the motion to dismiss into a motion for summary judgment, which the court granted in favor of Ms. Holm-quist and Senators Halford and Frank.

      . The superior court dismissed the Whalens’ claims against Representative Martin on the additional ground that "[t]here has been no notice of appearance and no proof of service on him.” The Whalens argue in their reply brief that the superior court erred in dismissing for this reason because "it should have in all fairness given the plaintiffs prior notice and opportunity to address the issue.” This assertion is not sufficient to preserve a claim of error. The Whalens point to no record support for their argument. We therefore affirm the dismissal as to Representative Martin on this ground, and do not address the immunity issue as to him.

      . Thoma v. Hickel, 947 P.2d 816, 818 (Alaska 1997).

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

      . Carlson v. State, 598 P.2d 969, 973 (Alaska 1979).

      . Muller v. BP Exploration, Inc., 923 P.2d 783, 787 (Alaska 1996); Todd v. State, 917 P.2d 674, 677 (Alaska 1996); ARCO Alaska, Inc. v. State, 824 P.2d 708, 710 (Alaska 1992) (citation omitted).

      . The Whalens cite Tenney v. Brandhove, 341 U.S. 367, 376, 71 S.Ct. 783, 95 L.Ed. 1019 (1951), in support.

      . Boyer was then the Commissioner of the Alaska Department of Administration.

      . Article II, section 6 of the Alaska Constitution and AS 24.40.010 address legislative immunity. Both provide in part: "[Legislators] may not be held to answer before any other tribunal for any statement made in the exercise of [their] legislative duties.”

      . Kerttula v. Abood, 686 P.2d 1197, 1202 (Alaska 1984).

      . Id. (citing Gravel v. United States, 408 U.S. 606, 617, 92 S.Ct. 2614, 33 L.Ed.2d 583 (1972)).

      . Id. (citing Gravel v. United States, 408 U.S. at 617).

      . Breck v. Ulmer, 745 P.2d 66, 70 (Alaska 1987); State v. Haley, 687 P.2d 305, 319 (Alaska 1984); Kerttula, 686 P.2d at 1202-04; Restatement (Second) of Torts § 590 (1979) (“A member ... of a State or local legislative body is absolutely privileged to publish defamatory matter concerning another in the performance of his legislative functions.”). See also Restatement (Second) of Torts § 590 cmt. a (1979) (“The privilege ... is not confined to conduct on the floor of the legislative body. It extends to the work of legislative committees or sub-committees that are engaged in an investigation or other work authorized by the legislative body.”).

      . Kerttula, 686 P.2d at 1201.

      . Doe v. McMillan, 412 U.S. 306, 313, 93 S.Ct. 2018, 36 L.Ed.2d 912 (1973) (holding that members of Congress who had included description of children’s behavior and identified children by name in committee report were immune from liability under federal speech or debate clause). See also Shultz v. Sundberg, 577 F.Supp. 1491, 1495 (D.Alaska 1984) (applying principle in Doe that congressmen who engage in legitimate legislative acts will be immune from liability even if their actions "raise significant state issues”).

      . The Whalens also argue that there was no need for legislative review by the House Finance Committee in March 1996 because the agreement between the state and Ronald Whalen was "A DONE DEAL.” We reject this argument because we hold that review of the COLD payments and the accompanying settlement was properly within the committee's legislative duties.
      The Whalens also assert in their reply brief that AS 09.50.250 waives immunity. This contention is completely without merit. The statute does not purport to waive or limit the legislative immunity conferred by article II, section 6 of the Alaska Constitution and AS 24.40.010.