text:
    2003 WY 166
    In the Matter of the TERMINATION OF PARENTAL RIGHTS TO CG, SG, JG and SG, minors. AMG, Appellant (Respondent), v. State of Wyoming, Department of Family Services, Appellee (Petitioner).
    No. C-03-1.
    Supreme Court of Wyoming.
    Dec. 23, 2003.

      Representing Appellant: Ronald G. Pretty, Cheyenne, Wyoming.
    Representing Appellee: Patrick J. Crank, Wyoming Attorney General; Michael L. Hubbard, Deputy Attorney General; Dan S. Wilde, Senior Assistant Attorney General. Argument by Mr. Wilde.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, JJ., and KALOKATHIS, DJ.
   GOLDEN, Justice.

[T1] The district court terminated the parental rights of AMG, the natural mother, to four of her children: CG, SG, JG, and SG. AMG (Mother) appeals only certain specific decisions made by the district court. We affirm.

ISSUES

[T2] Mother raises the following issues:

1. Did the court err by allowing the introduction of testimony in violation of Rule 702, W.R.E. and Daubert v. Merrell Dow Pharmacy?
2. Did the court err in its instructions given to the jury?
3. Did the trial court err when it failed to give the respondent's theory of the case?

FACTS

[13] Because of the limited nature of the issues, only a brief outline of the facts is necessary. The Wyoming Department of Family Services (DFS) filed a petition to terminate the parental rights of Mother. At trial, DFS presented testimony from several mental health professionals who have been counseling the children. The mental health professionals testified about the mental health of the children and special needs of the children, and gave their professional opinion as to whether it would serve the best interests of the children to have Mother's parental rights terminated. The testimony from these experts and from others indicated that Mother was not capable of properly caring for the children. A jury returned a verdict terminating Mother's parental rights to each child.

DISCUSSION

[14] We summarily affirm the actions of the district court with regard to Mother's issues number two and three. Both of these issues question the propriety of the jury instructions. Mother, however, failed to designate for the record on appeal the jury instructions actually given. Our standard of review for jury instructions requires us to review the instructions as a whole. This Court recently provided, albeit in a criminal jury trial context, guidance with regard to our standard of review for jury instruction issues:

The applicable standard of review is well-established: Jury instructions should inform the jurors concerning the applicable law so that they can apply that law to their findings with respect to the material facts, instructions should be written with the particular facts and legal theories of each case in mind and often differ from case to case since any one of several instructional options may be legally correct, a failure to give an instruction on an essential element of a criminal offense is fundamental error, as is a confusing or misleading instruction, and the test of whether a jury has been properly instructed on the necessary elements of a crime is whether the instrue-tions leave no doubt as to the cireum-stances under which the crime can be found to have been committed. Mueller v. State, 2001 WY 134, ¶ 9, 36 P.3d 1151, ¶ 9 (Wyo.2001). With specific regard to a defendant's "theory of the case" instruction we have held that:
Due process requires the trial court to give a correct instruction to the jury that details the defendant's theory of the case. Blakely v. State, 474 P.2d 127, 129 (Wyo.1970). The instruction must sufficiently inform the court of the defendant's theory and must be supported by competent evidence. Bouwkamp v. State, 833 P.2d 486, 490 (Wyo.1992). A theory of the case is more than a comment on the evidence that tells the jury how to consider the evidence. Ellifritz v. State 704 P.2d 1300 (Wyo.1985). Fundamentally, the instruction must in the first instance be a proper theory of the case, or theory of defense, instruction. That is, the offered instruction must present a defense recognized by statute or case law in this jurisdiction. Bouwkamp, 833 P.2d at 490.
As Bouwkamp explained, "(theory of defense instructions are to be derived from and address criminal defenses provided for by statute or acknowledged by this court." Id. It further noted "common-law defenses are retained unless otherwise provided by this act." Id. (quoting Wyo. Stat. Ann. § 6-1-102(b)). Additionally, this Court has discussed acceptable defenses, notably in Keser v. State, 706 P.2d 263, 269 (Wyo.1985). See also, 1 Paul H. Robinson, Criminal Law Defenses § 21, at 70 n. 1 (1984); 1 Charles E. Torcia, Wharton's Criminal Law § 39 (15th ed.1993).
Any competent evidence is sufficient to establish a defense theory even if it consists only of testimony of the defendant. Best v. State, 736 P.2d 739, 445 (Wyo.1987). We view the evidence in a light favorable to the accused and the accused's testimony must be taken as entirely true to determine if the evidence is competent. Duckett v. State, 966 P.2d 941, 944 (Wyo.1998). Even if the court deems the evidence to be weak, or unworthy of belief, the instruction must be given if a jury could reasonably conclude the evidence supports the defendant's position. Id. The refusal to allow an instruction requested by the defendant when due process requires the defendant's instruction be given is reversible error per se. Id.
Holloman v. State, 2002 WY 117, ¶¶ 15-17, 51 P.3d 214, ¶¶ 15-17 (Wyo.2002).

Wheaton v. State, 2003 WY 56, ¶ 20, 68 P.3d 1167, ¶ 20 (Wyo.2003).

[T5] The issue is not as simple as whether the jury instructions offered by Mother were correct. According to our standard of review, we must analyze the instructions actually given to the jury to see if, as a whole, they adequately informed the jury concerning the applicable law, allowing the jury to apply that law to their findings with respect to the material facts. Mother had the burden of providing this Court with a complete record on which to base a decision. Orcutt v. Shober Inv., Inc., 2003 WY 60, ¶ 9, 69 P.3d 386, ¶ 9 (Wyo.2003). Because she has not done so, this Court has no other means to review the district court's decision. We must assume the decision was in accord with the law. Id. at ¶ 10.

[16] Mother's first issue is also inadequately presented. Her argument essential ly is that the fields of child psychology and psychotherapy have no proper scientific basis. Her objection, as stated in her brief, is that the trial judge abused his discretion in allowing the mental health professionals to "testify as experts as to the medical and psychological problems that the children had. In addition, the Court allowed these witnesses-over objections-to tell the Jury what their verdiet should be.... [Tihese witnesses were liberal arts majors who were regurgitating some psycho-babble mindspeak that social 'scientists' pass off to a gullible public as science." Not surprisingly, Mother offers no citation to authority to support the proposition that the general fields of child psychology and psychotherapy do not meet the legal standards for scientific or, specialized knowledge.

[17] Despite the inadequacy of Mother's brief, because of the fundamental nature of parental rights, we will briefly comment upon Mother's concerns. Before trial, Mother filed a motion to either exclude any testimony from mental health providers or to hold a hearing pursuant to W.R.E. 104 to determine the admissibility of the testimony of the mental health providers. The trial court denied the motion and did not hold a W.R.E. 104 hearing, but said it would consider specific issues as they arose at trial. Mother argues that, had the trial court held a Rule 104 hearing, it would have found the proposed testimony from the mental health professionals "was not hard science like 2 +2 equals 4 but instead was only the meaningless meanders of people that couldn't be real scientists but could only be pseudo scientists which were specifically barred by Daubert."

[18] The admissibility of expert testimony is derived directly from W.R.E. 702, which states: "[I)f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." This Court, in previous opinions, has discussed at length the procedure that should guide the district court in reaching its decision regarding the admission of expert testimony. See generally Seivewright v. State, 7 P.3d 24 (Wyo.2000); Bunting v. Jamieson, 984 P.2d 467 (Wyo.1999). The analysis contained in Seivewright is directly on point to the arguments Mother makes in this appeal, and we quote from Seivewright at length:

In performing our review, it is well established that the decision of the district court to admit or reject expert testimony is a decision solely within that court's discretion. Springfield v. State, 860 P.2d 435, 438 (Wyo.1993); Betzle v. State, 847 P.2d 1010, 1022 (Wyo.1993); Braley v. State, 741 P.2d 1061, 1064 (Wyo.1987). Recently, we expanded on that standard of review.
The trial court must have the same kind of latitude in deciding how to test an expert's reliability, and to decide whether or when special briefing or other proceedings are needed to investigate reliability, as it enjoys when it decides whether or not that expert's relevant testimony is reliable. Our opinion in Joiner [General Electric Co. v. Joiner, 522 U.S. 136, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997) ] makes clear that a court of appeals is to apply an abuse-of-discretion standard when it "review[s] a trial court's decision to admit or exclude expert testimony." 522 U.S. at 138-39, 118 S.Ct. 512, [139 L.Ed.2d 508]. That standard applies as much to the trial court's decisions about how to determine reliability as to its ultimate conclusion.... Thus, whether Dawubert's specific factors are, or are not, reasonable measures of reliability in a particular case is a matter that the law grants the trial judge broad latitude to determine.
Bunting v. Jamieson, 984 P.2d at 470 (quoting Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 1176, 143 L.Ed.2d 238 (1999)). "Otherwise, the trial judge would lack the discretionary authority needed both to avoid unnecessary 'reliability' proceedings in ordinary cases where the reliability of an expert's methods is properly taken for granted, and to require appropriate proceedings in the less usual or more complex cases where cause for questioning the expert's reliability arises." Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. at 1176, [143 L.Ed.2d 238]. The district court's decision to decline to hold a reliability hearing is therefore reviewed for an abuse of discretion. Id.; U.S. v. Charley, 189 F.3d 1251, 1266 (10th Cir.1999); U.S. v. Nichols, 169 F.3d 1255, 1262-63 (10th Cir.1999).
Because Seivewright's motion for a Dau-bert hearing provided the district court with little reason to hold an evidentiary hearing to analyze Dr. Huber's testimony, we find no abuse of discretion in the district court's refusal to hold such a hearing. Seivewright's motion provided the district court neither with authority to establish the methodology or technique being applied was unreliable nor did it assert that another expert would refute reliability. In short, Seivewright did nothing more than boldly assert that Dr. Huber's testimony was unreliable. Under these circumstances, we conclude there was no abuse of discretion in the district court's refusal to hold a Daubert hearing.
Our conclusion on this issue requires examination of the scientific principle being applied. Bite mark identification is based on the theory of uniqueness. "Identification of a suspect by matching his dentition with a bite mark found on the victim of a erime [or a substance] rests on the theory that each person's dentition is unique." 1 Paul C. Giannelli and Edward J. Imwinkelried, Scientific Evidence, p. 583 (3rd ed.1999); State v. Jones, 273 S.C. 723, 259 S.E.2d 120, 124 (1979). Although several methods of bite mark analysis have been reported, "[alll methods involve three steps: (1) registration of the bite mark and the suspect's dentition, (2) comparison of the dentition and bite mark, and (8) evaluation of the points of similarity or dissimilarity." Imwinkelried at 585.
Seivewright does not seriously contend that bite mark identification is not a proper subject for expert testimony. Indeed, the courts faced with this question have unanimously concluded that bite mark comparison is a proper subject for expert testimony. See Annotation, Admissibility of Evidence Tending to Identify Accused by His Own Bite Marks, 77 A.L.R.3d 1122, 1977 WL 45723 (1977 & 1999 Supp.). While the majority of cases involve flesh bites, courts have also approved bite mark identification in cases involving various foods. See State v. Ortiz, 198 Conn. 220, 502 A.2d 400, 401 (1985) (partially eaten apple); Banks v. State 725 So.2d 711, 714-16 (Miss.1997) (bologna sandwich; conviction reversed because state destroyed sandwich before defense could examine); Doyle v. State, 159 Tex.Crim. 310, 263 S.W.2d 779 (1954) (cheese, but not raised as issue on appeal). Given the wide acceptance of bite mark identification testimony and Seivewright's failure to present evidence challenging the methodology, we find no abuse of discretion in the district court's refusal to hold an evidentiary hearing to analyze Dr. Huber's testimony. The district court was simply exercising its "discretionary authority ... to avoid unnecessary 'reliability' proceedings in ordinary cases where the reliability of an expert's methods is properly taken for granted." Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. at 1176, 143 L.Ed.2d 238. While this is not true for all subjects of expert testimony, we are comfortable that it is true under the circumstances of the case at bar.
Based on the foregoing, we also conclude that Bunting v. Jamieson, 984 P.2d 467, is distinguishable. There we wrote:
[Wle believe that the trial court's decision to dispose of a case by precluding expert testimony requires the same level of judicial explanation supporting its discretionary decision as the admission of testimony under the catch-all exception. A single conclusory statement applying one nondispositive Daubert factor is insufficient.
Id. at 445. Read too broadly, this statement could be interpreted to require findings in every case of expert testimony. However, not every subject of expert testimony is appropriate for application of the Dambert factors. Bunting v. Jamieson, 984 P.2d at 475. Moreover, unlike the expert testimony in Bunting v. Janieson, the reliability of the expert's methods (bite mark identification) can be taken for granted in this case, and findings were unnecessary. On a related note, to the extent Seivewright challenges Dr. Huber's conclusion that Seivewright bit the cheese, these challenges go to the weight of the testimony, not to reliability of the methodology (bite mark identification), and are matters best left to a jury. Id. at 472-73. We find no abuse of discretion in the district court's refusal to hold a Daubert hearing.

Seivewright, 7 P.3d at 29-31.

The exact same analysis applied here. It was within the district court's discretion to determine if a W.R.E. 104 hearing was necessary. Mother's motion for the hearing "provided the district court neither with authority to establish the methodology or technique being applied was unreliable nor did it assert that another expert would refute reliability." Id. at 30. Mother did not give any explicit reason why the proposed testimony would not be admissible except for stating that the testimony was based upon "junk" science. Under these cireumstances, the district court did not abuse its discretion in failing to hold a W.R.E. 104 hearing.

[110] As to the methodology, the principles of psychotherapy and the principles of child psychology are firmly established. Certainly there may be specific theories that are controversial. Mother, in her brief, does specify a few issues with particularity, such as a diagnosis of post-traumatic stress disorder. However, Mother offers no pertinent authority or cogent argument that even these specific issues are generally regarded as controversial within the scientific community. Instead, Mother simply objects to the field of child psychology as a whole as being "junk" science. Given this broad objection, and the wide acceptance of the field of child psychology, again, we perceive no abuse of discretion by the district court in failing to hold a W.R.E. 104 hearing.

[N11] At trial, Mother's attorney repeatedly renewed his objections to the testimony of the mental health professionals on the grounds that such testimony violated W.R.E. 702. The trial transcript, however, reveals that proper foundations were laid for each of the mental health professionals who testified. Testifying on behalf of the State were a licensed professional counselor, having received his Master's Degree in Counseling Psychology from the University of Northern Colorado in 1973; a licensed clinical social worker, having received her Master's Degree in Social Work in 1989; and a licensed professional counselor, having received her Master's Degree in Counseling and Guidance from the University of Northern Colorado, who has been a practicing therapist for 26 years. Each testified to his or her many years of experience in the mental health field. Each mental health professional also testified regarding his or her interaction with each individual child. Mother offered no specific objections to the qualifications of the mental health professionals, but rather only to the field of mental health generally. Mother did not, however, present any evidence, or even cogent argument, to support her objections. Under these cireum-stances, again, we find no abuse of discretion by the trial court in overruling Mother's objections and allowing the expert testimony.

[112] Mother also objected to the testimony from the mental health experts on the grounds that, to the extent the testimony related to or relied upon statements made by the children, such statements were hearsay. Further,; Mother objected to the mental health experts testifying to what she considers to be an ultimate fact-whether or not it would be in the best interests of the children to be returned to Mother. This Court dealt at length with both these issues in Griswold v. State, 994 P.2d 920 (Wyo.1999). Again, because of its pertinence, we quote at length from that decision:

Argument Three: Hearsay Testimony of Dr. Strotnak
Griswold challenges portions of the testimony of the State's expert witness, Dr. Sirotnak, the director of the Kempe Child Protection Team at Denver Children's Hospital. As noted above, questions related to the admissibility of evidence are within the sound discretion of the trial court. Punches v. State, 944 P.2d 1131, 1136-37 (Wyo.1997) (citing James v. State, 888 P.2d 200, 204 (Wyo.1994)). We give considerable deference to the trial court's rulings and will not disturb them absent a clear abuse of discretion. Vit v. State, 909 P.2d 953, 957 (Wyo.1996); Herdt v. State, 891 P.2d 793, 801 (Wyo.1995).
As part of diagnosing and developing a treatment plan for AO and TM, the Kempe Child Protection Team performed both physical and psychological examinations. The team psychologist, Dr. Michelle Kelly, interviewed and evaluated the children and prepared a written report of her findings. However, before the written report was complete, Dr. Kelly discussed its contents with Dr. Sirotnak and told him that AO and TM were victims of sexual assault.
Griswold objects to Dr. Sirotnak's testimony based on Dr. Kelly's verbal conclusion that AO and TM were victims of sexual abuse. Because Dr. Sirotnak did not participate in the interview process of either victim and was never in a position to observe their demeanor, Griswold argues his testimony should have been excluded as hearsay. Griswold further claims that Dr. Sirotnak's statements regarding TM were not based or dependent in any way upon physical evidence or physical observations, and therefore were inadmissible for purposes of medical diagnosis or treatment. W.R.E. 808(4). Finally, Griswold contends that Dr. Sirotnak's testimony improperly attributed fault, causation or guilt to him. We disagree.
Dr. Sirotnak's testimony is admissible under W.R.E. 703, which states:
The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.
We recognized in Hayes v. State, 935 P.2d 700 (Wyo.1997), that out-of-court statements by a third party ordinarily are inadmissible to prove the truth of the matter asserted, but may be admissible to show the basis of an expert's opinion. Id. at 708 (citing McGinn v. State, 928 P.2d 1157, 1162-63 (Wyo.1996)). In Hayes the evidence the treating physician learned from the victim's mother was not offered for the truth of the matter asserted, but was relevant because it established a basis for the doctor's expert opinion, and the doctor's testimony was her own opinion, not that of others. Hayes, 935 P.2d at 704; McGinn, 928 P.2d at 1163. See also Stephens v. State, 774 P.2d 60, 67 (Wyo.1989) (error to allow expert to opine as to who the perpetrator was or his guilt.) Out-of-court statements may be allowed for the limited purpose of showing the basis of an expert's opinion, so long as other experts in the field would rely on similar evidence. Hayes, 935 P.2d at 703. Dr. Sirotnak's testimony concerning Dr. Kelly's statements about TM and AO was not offered for the truth of the matter asserted, but was relevant because it established a basis for his expert opinion that AO and TM were victims of sexual abuse. Dr. Sirot-nak testified that it was routine practice for members of the multi-disciplinary team to rely on each other's information. Based on the purpose and use of the testimony, the district court did not abuse its discretion when it admitted Dr. Sirotnak's testimony into evidence.
Argument Four: Expert Testimony
The fourth issue Griswold raises is that the district court erred in permitting Dr. Sirotnak to render an opinion that AO was a victim of sexual abuse. The basis for his argument is that Dr. Sirotnak's opinion testimony was tantamount to vouching for the child's credibility and therefore inadmissible. Griswold contends Dr. Sirot-nak's opinion rested solely upon the substance of AO's statements and was no more than an unfounded belief in the child's veracity. While Griswold is correct that it is error to permit a psychotherapist to vouch for the credibility of a victim, "we have permitted an expert witness to testify that the behavior of a victim was consistent with that generally displayed by victims of sexual assaults, even though such testimony does, in some way, validate the credibility of the victim." Stephens, 774 P.2d at 68.
Griswold's argument that Dr. Sirotnak's opinion was based on the children's statements and little else is not supported by the record. In addition to psychological observations and questions Dr. Kelly asked while interviewing the girls, Dr. Sirotnak did, in fact, have some physical basis, the abnormality in AO's anal exam, upon which he based his opinion. Dr. Sirotnak also testified that his opinion did not rest solely on the substance of AO's statements, but a number of other factors. He reflected on the language used to describe the reported events, the relative sophistication of AU's expressed knowledge of sexual matters, the extent to which her descriptions of sexual acts were graphically detailed, the consistency of her statements in those respects, and behavior indicating effects of abuse Dr. Kelly noted. See also Rigler, 941 P.2d at 740; Punches, 944 P.2d at 1136; Hayes, 935 P.2d at 703 (no error to introduce opinion testimony that individual was victim of sexual abuse.)

Griswold, 994 P.2d at 926-29 (footnote omitted). Griswold holds that the out-of-court statements of the children are not hearsay because they are offered not for the truth of the matter asserted. Further, an expert can testify as to ultimate facts. Mother offers no cogent argument or pertinent authority why our holding should be different in this case.

CONCLUSION

[113] Mother has offered no cogent argument or pertinent authority to support her issues on appeal. The ruling of the district court is affirmed.

      . All references to "Daubert" are references to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

      . The parental rights of the natural father were also terminated in the same action. He has not appealed.

      . Rule 104. Preliminary Questions.
      (a) Questions of admissibility generally.-Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b). In making its determination it is not bound by the rules of evidence except those with respect to privileges.
      (b) Relevancy conditioned on fact. -When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.
      (c) Hearing of jury.-Hearings on the admissibility of confessions shall in all cases be conducted out of the hearing of the jury. Hearings on other preliminary matters shall be so conducted when the interests of justice require or, when an accused is a witness, if he so requests.
      (d) Testimony by accused.-The accused does not, by testifying upon a preliminary matter, subject himself to cross-examination as to other issues in the case.
      (e) Weight and credibility. This rule does not limit the right of a party to introduce before the jury evidence relevant to weight or credibility.


source: Caselaw Access Project

author: GOLDEN, Justice.

license: Public Domain

text:
    2003 WY 165
    William S. HANSULD and Tia J. Hansuld, husband and wife, Appellants (Plaintiffs), v. LARIAT DIESEL CORPORATION, a Wyoming corporation, Appellee (Defendant).
    No. 02-258.
    Supreme Court of Wyoming.
    Dec. 23, 2003.

      Representing Appellant: William W. Harden and Larry W. Harrington, Casper, Wyoming.
    Representing Appellee: Thomas M. Hogan and Donald L. Painter, Casper, Wyoming.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   GOLDEN, Justice.

[11] Appellants William S. Hansuld and Tia J. Hansuld own property adjoining that of Appellant Lariat Diesel Corporation. Shortly after Hansulds purchased their property, they denied access to Lariat and erected a fence to prevent use. Hansulds filed a quiet title and declaratory judgment suit, and Lariat counterclaimed to establish its rights. Following a bench trial, the district court ruled that Lariat had an implied easement for access. Hansulds appeal that ruling.

[12] We affirm.

ISSUES

[13] Hansulds provide this statement of the issues:

1. Did the LLC have an interest in the State-right-of-way that would create a "unity of ownership" with the $100 property when Lariat purchased the $100 property?
2. Whether or not the trial court erred in ordering an implied easement over the abandoned State right-of-way, when unity 'of ownership was missing between the 3100 property and the abandoned State right-of-way?
3. Did the court err in granting an implied easement for ingress and egress across the 8110 property when that property is not contiguous to the East Yellowstone Highway?

Lariat rephrases the issue to state:

1. Did the trial court err in granting Lariat an implied access easement across the Appellants' $110 East Yellowstone property?
2. Did the trial court err in granting Lariat an implied access easement across the Appellants' abandoned State right-of-way contiguous to their 3110 East Yellowstone property?
3. Did the trial court err in determining the extent and permitted uses of the easement across the Appellants' property?

FACTS

[14] The district court approved a statement of facts in lieu of a transeript, which we have summarized. Originally, Chapin and Rateliff, LLC (LLC) owned both 3100 East Yellowstone and 3110 East Yellowstone, Na-trong County, Wyoming. In 1995, LLC owner, Hardy Rateliff, approached Lariat owner Marvin Piel (Piel) with the thought of selling Lariat both properties located at 3100 and 3110 East Yellowstone. Lariat was interested in 3100 East Yellowstone only and did not require the other lot.

[T5] The parties agreed that if Lariat would purchase 3100 East Yellowstone, Lariat would be allowed access over the 8110 East Yellowstone lot for its truck access. Access across $110 East Yellowstone was key to Lariat's business located at 3100 East Yellowstone. Without it, Lariat could not get heavy trucks in and out of its shop without great difficulty. On July 2, 1995, the LLC sold 83100 East Yellowstone to Lariat.

[16] A little over a year later, on August 5, 1996, the LLC and Gary L. Petley (Petley) entered into a Purchase Agreement concerning the property adjoining Lariat, 3110 East Yellowstone. American Title Company issued a title commitment for the property on August 19, 1996.

[17] Some days before the closing date of the sale of 3110 East Yellowstone to Petley, the LLC proposed at a meeting with Lariat that it would give Lariat a formal written ingress and egress easement for customers crossing 3110 East Yellowstone in exchange for Lariat's giving the LLC a sewer "ease ment" across the Lariat property for the sewer line servicing the adjoining property at 3110 East Yellowstone. Mr. Petley was invited to this meeting because this "reciprocal easement" arrangement would both burden and benefit 3110 East Yellowstone and his proposed purchase. No other consideration was exchanged. Petley understood the arrangement and had no problems with it.

[T8] After the meeting and before the closing on 8110 East Yellowstone, the LLC executed and filed an "Access Agreement" that contained a legal description granting egress and ingress over the southerly 100 feet of 3110 East Yellowstone. The Natrona County Clerk filed the "Sewer Easement" at 4:00 p.m. and the "Access Agreement" at 4:02 p.m. on August 30, 1996. Also on that same day, the Petley purchase of 3110 East Yellowstone closed, and the warranty deed was filed with the Natrona County Clerk at 10:41 a.m. The title policy that issued a few days after the closing included the recorded access agreement in the policy for informational purposes.

[19] Petley sold 8110 Yellowstone to Wildeat Whackers on June 25, 1999. Later, Wildeat Whackers listed it for sale with a realtor who noticed the access agreement and consulted an attorney. In the course of soliciting Lariat to buy the property, the realtor indicated to it that the realtor believed the easement was void because it was outside of the chain of title. Lariat summarily rejected the offer to purchase and told the realtor that it believed the easement was valid and enforceable. That same realtor advised Hansulds of the easement, and Han-sulds purchased the property on October 81, 2001.

[T10] Immediately after purchasing the property at 3110 East Yellowstone, Hansulds notified Lariat that any future access across 3110 East Yellowstone would be denied. Hansulds then constructed a chain link fence along the property line between 3110 and 3100 East Yellowstone and along the East Yellowstone frontage to insure that Lariat had no access across 3110 East Yellowstone. Hansulds filed suit to quiet title and sought a declaratory judgment on the validity of the access agreement. Summary judgment motions were denied, and the case proceeded to a bench trial.

[111] After suit was filed, East Yellowstone Highway, the access road to both parties' property, was straightened, resulting in the abandonment of a portion of the right-of-way by the State of Wyoming. The "Resolution for Abandonment" was filed with the county clerk on September 20, 2001. Wildeat Whackers conveyed the abandoned property to Hansulds by quitclaim deed. The land acquired by Hansulds is approximately forty feet wide and lies between Hansulds' southern boundary and Yellowstone Highway.

[112] The district court found that the abandonment added property to the southerly parts of both Hangulds' and Lariat's properties. The district court determined that the LLC intended to convey an easement for access to the 3100 property and held that an implied easement existed. Hansulds appeal.

DISCUSSION

Standard of Review

[(T13] When a trial court in a bench trial makes express findings of fact and conclusions of law, we review the factual determinations under a clearly erroneous standard and the legal conclusions de novo. Rennard v. Vollmar, 977 P.2d 1277, 1279 (Wyo.1999). The parties do not dispute the findings of fact, and we review de novo the district court's resolution of this dispute.

Type of Easement

[T 14] The district court made no findings as to whether an express easement had been created by virtue of the access agreement filed a few hours after the warranty deed, and the parties speculate whether the district court's silence indicates that the access agreement is void. The district court also made no findings as to whether the LLC could grant an express easement across property that was owned by the State and later abandoned and deeded to the parties. The Handsulds do not dispute any factual findings by the district court; however, they do contend that Wyo. Stat. Ann. § 24-3-126 prevented the parties from agreeing to an easement at inception and the district court cannot now imply an easement. The district court limited its ruling to deciding that at severance, the common owner and Lariat intended to provide for access and created an implied easement. Although we consider the effect of both the express access agreement and the state's role in this matter, that consideration is limited to whether either are of any consequence in determining that an implied easement was created.

Implied Easements

[115] Under certain cireum-stances, Wyoming will recognize an implied easement across another person's property. In re Estate of Shirran, 987 P.2d 140, 142 (Wyo.1999) (citing Beaudoin v. Kibbie, 905 P.2d 939, 941-42 (Wyo.1995), Corbett v. Whitney, 603 P.2d 1291, 1293 (Wyo.1979)). The elements which must be satisfied in order to establish an implied easement are: (1) common ownership followed by a conveyance separating the unified ownership; (2) before severance, the common owner used part of the property for the benefit of the other part, a use that was apparent, obvious, and continuous; and (8) the claimed easement is necessary and beneficial to the enjoyment of the parcel previously benefitted. Id. (quoting Beaudoin, 905 P.2d at 941-42).

[¥16] The creation of easements by implication is an attempt to infer the intention of the parties to a conveyance of land. Gray v. Norwest Bank Wyoming, N.A., 984 P.2d 1088, 1091 (Wyo.1999). "This inference drawn from the circumstances surrounding the conveyance alone represents an attempt to determine the intention of parties who had not thought or had not bothered to put the intention into words, or perhaps more often, to parties who actually had formed no intention conscious to themselves." Id. (citing Corbett, 603 P.2d at 1293). "The doctrine of implied easements was created for courts to examine the particular facts suggesting the intent of the parties to a conveyance and determine if the parties omitted granting an easement reasonably necessary for the use and enjoyment of the property." Id. The implied easement does not arise where the parties to the conveyance expressly agree otherwise or where proof of its elements is not established. Id.

[117] In applying the doctrine of implied easements, we must determine the parties' intent at the time that the unified property was severed from a single possesso-ry interest by conveyance from the common owner to a grantee. In this particular case, LLC, the common owner, severed the property by conveying part of it to Lariat. That conveyance included an express agreement between the parties to permit access. The express intent of these parties controls and, if all elements are satisfied, requires the creation of an implied easement based upon previous use.

[118] Hansulds contend that this element is not met for two reasons: first, a statute prevented the LLC from legally granting an easement across property owned by the State and, secondly, they further claim that the State's abandonment of the property vacated any rights that Lariat may have had. The first reason need not be considered because we are not addressing whether the LLC legally granted an express easement for property not its own. The district court did not decide whether the access agreement was valid or void; instead, it resolved the issue by deciding that an implied easement was created. In other words, the express agreement is of no consequence.

[119] What is of consequence is that at the time that the parties expressed their intent in the access agreement, both agreed that the access would involve the property owned by each. The later changes in the condition of the properties are irrelevant because our general rule is that we presume that the parties contracted for the transfer of the property with a view to the condition of the property as it actually was at the time of the transaction. Shirran, 987 P.2d at 143. There was no error by the district court on this issue.

[1201 Hansulds base their second contention on our resolution of a similarly posed question in Schott v. Miller, 943 P.2d 1174 (Wyo.1997). In that case, Schott entered into an agreement with the county that allowed her to place a water well and pipelines on a county road. Id. at 1175. Later, the county vacated that part of the county road and quitelaimed its interest in that land to the adjacent property owner and did not reserve Schott's interest. The adjacent property owner revoked Schott's right-of-way. Id. at 1175-76. We held that exclusive title passed, and Schott's right-of-way interest had been extinguished. Id. at 1177. Hansulds acknowledge the obvious distinction between the two cases, that Lariat, unlike Schott, had no agreement with a governmental entity. Nonetheless, Hansulds assert that Schott's holding, that a government abandonment results in extinguishing all rights that are not reserved, must apply in this case.

[T21] Schott's holding was based upon resolution of an express easement that included a procedure to permit revocation of the right-of-way. The new owners followed that revocation procedure and extinguished Schott's right-of-way. No issue of implied easement was presented or discussed. Han-sulds present no argument that Schott intended to hold that an implied easement cannot be applied under these different facts and we do not further consider it.

[122] Whether the effect of the state's abandonment has destroyed the unity of ownership that is a necessary element to establishing an implied easement must be answered. As provided for by the statute, abandoned state highway property reverted to the present owners resulting in added property to both parcels that had not been owned by the LLC at the time of severance. Hansulds were not aware of the abandonment, and the property was not added until Hansulds had denied access and begun litigation. Under these rare circumstances, we believe that the district court properly concluded that the state property had not altered any of the facts establishing an implied easement. At the time of the severance, the LLC intended to benefit Lariat's property with an access agreement, Lariat properly used the property for access, and today, the property would benefit from the continued access granted to it by the common owner. In other words, the state's role was of no consequence. The record supports this conclusion, and we find no error in the district court's ruling.

[123] The district court's order granting judgment to Lariat is affirmed.

      . The statute provides in pertinent part:
      (a) The transportation commission may abandon or relinquish any portion of state highways upon the reconstruction or relocation of any portion of an existing state highway.

      (i) Upon the entry of the resolution of abandonment in the minute record of the commission, all title and interest, except as herein provided, to the highway right-of-way shall pass to and vest in the present adjacent landowner according to the portion contributed by adjacent landowner or his predecessor in interest[.]


author: MATTHEWS, Justice.

text:
    Ronald F. STANEK, Appellant, v. KENAI PENINSULA BOROUGH, Appellee.
    No. S-10566.
    Supreme Court of Alaska.
    Dec. 5, 2003.

      Robert D. Stone, Anchorage, for Appellant.
    Collette Thompson, Borough Attorney, Soldotna, for Appellee.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

MATTHEWS, Justice.

I. INTRODUCTION

An ordinance of the Kenai Peninsula Borough excludes from taxation $10,000 of the value of residential property used as the owner's permanent residence. An Anchorage resident who owns a second home in the Borough challenges the ordinance, contending mainly that it illegally discriminates against Borough nonresidents. We uphold the ordinance because it discriminates on the basis of property use, treating resident and nonresident owners of second homes alike, and because this discrimination is legitimate.

II. FACTS AND PROCEEDINGS

Ronald Stanek owns a second home that he uses for recreational purposes in the Ke-nai Peninsula Borough. He is an Anchorage resident. Kenai Borough Ordinance (KPB) 5.12.115 exempts from taxation the first $10,000 of residential property used as the owner's permanent place of residence. Implementing regulations define "permanent place of residence" as "that place where a person has his true, fixed and permanent home and to which, after any temporary absence, the person has the intention to, and will return." Stanek is not eligible for this exemption because his Kenai house is not his permanent place of residence.

Stanek sued the Borough, challenging the ordinance on constitutional and statutory grounds. Specifically, he claimed that the ordinance violated constitutional guarantees of equal protection; the right to travel; AS 29.45.050, which permits municipalities to exempt $10,000 of residential property; and AS 29.45.110, which requires property to be assessed at its full and true value. Both parties moved for summary judgment. The superior court granted the Borough's motion and Stanek appeals.

III. DISCUSSION

A. Standard of Review

Only issues of law are involved in this case. We review issues of law exercising our independent judgment.

B. The Exemption Does Not Violate Equal Protection.

Stanek argues that the tax exemption discriminates between otherwise similarly situated taxpayers on account of their borough residency. He argues that this discrimination violates the Equal Rights Clause of the Alaska Constitution and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

We address at the outset Stanek's state constitutional challenge. The Alaska Constitution provides that all persons are "entitled to equal rights, opportunities, and protection under the law." In Gonzales v. Safeway Stores, Inc., we summarized our general approach to claims that the equal rights clause has been violated:

The constitutional right to equal protection is a command to state and local governments to treat those who are similarly situated alike. The common question in equal protection cases is whether two groups of people who are treated differently are similarly situated and thus entitled to equal treatment. Equal protection jurisprudence concerns itself largely with the reasons for treating one group differently from another. In reviewing equal protection claims we view the enactment in question as creating, by its differential treatment, separate groups.... This separation by different legal treatment is referred to as a "classification." We ordinarily review a classification under Alaska's equal rights clause by asking whether a legitimate reason for disparate treatment exists, and, given a legitimate reason, whether the enactment creating the classification bears a fair and substantial relationship to that reason.

The classification in this case pertains to economic interests and does not involve suspect or quasi-suspect classifications. We thus apply the most tolerant "legitimate reason" test. from disparate taxation{ ] lies at the low end of the continuum of interests protected by the equal protection clause."

Stanek argues that the classification created by the ordinance is between nonresidents of the borough who own residences in the borough, and residents of the borough who own residences in the borough. The Borough takes issue with this. It contends that borough residents who own both first and second homes in the borough are treated as Stanek is treated because their second homes do not receive the $10,000 exemption. The distinction, the Borough argues, is based on the use of property as a primary home, not the residency of the owner.

We conclude that the Borough is correct. The actual classification that is created by the ordinance is between owners of owner-occupied primary residences in the borough and owners of second homes or other types of real property in the borough.

As to this classification, we must ask whether there is a legitimate reason for the disparate treatment. We conclude that the answer is affirmative. The exemption is evidently designed to protect and promote home ownership. Home ownership is widely thought to be beneficial to a community because it promotes stability, a sense of commitment to the community, civic responsibility, and a measure of financial independence. These are unquestionably legitimate goals. They can reasonably be perceived to be more strongly inherent in owner-occupied home ownership than in ownership of second homes or other real estate. Further, the tax exemption makes home ownership less expensive than it otherwise would be and thus bears a fair and substantial relationship to promoting home ownership. We therefore conclude that the ordinance does not violate the equal rights clause of the Alaska Constitution.

Other courts considering like programs have reached the same conclusions. In Reinish v. Clark, a Florida intermediate appellate court upheld a state statute that exempted the first $25,000 of property used as a permanent residence. The exemption was reviewed using minimum serutiny:

The underlying classification in the exemption provisions is based primarily on the use of the property rather than the user. [Tlhe Florida exemption treats the [plaintiffs] no differently from either Florida residents who rent, rather than own, . or Florida residents who use Florida real property as a secondary, seasonal, or vacation residence.
Mindful of the historic, civic, and economic significance of the need to foster and protect the primary residence of Florida homeowners, without an attendant need to give the same high level of protection to other types of residential properties, we conclude ... that the Florida homestead tax exemption's classification has some reasonable basis and does not offend equal protection concerns. The law-makers reasonably could have concluded that the challenged classification would promote a legitimate State purpose.

Similarly, a New York intermediate appellate court in Markham v. Comstock upheld a state tax exemption on primary residences, noting that it did "not favor New York residents over nonresidents. Rather, it distinguishes between property that serves as an owner's primary residence and property that does not and is unavailable with respect to property that is not the owner's primary residence whether the owner is a New York resident or not." Further, the court found that the exemption "is rationally related to the State's legitimate interest in protecting and promoting the ownership of property that serves as primary residences, and furthers that interest by relieving the real estate tax burden on such ownership."

To the same effect is Citizens for Uniform Taxation v. Northport Public School District, where a Michigan appellate court stated:

the statute does not distinguish between residents and nonresidents. Instead, the statute distinguishes between property that qualifies as homestead property and property that does not. Section 1211 treats nonresidents who own property that does not qualify as homestead property exactly the same as Michigan residents who own property that does not qualify as homestead property, neither are eligible for the homestead exemption.

As a subset of his equal protection argument, Stanek argues that we should presume that the ordinance in question was created with a discriminatory intent. The ordinanee was passed by initiative in 1978. The Borough apparently no longer possesses the initiative petition or other documents that might show the motives of the initiative sponsors. Under this cireumstance Stanek contends that we should apply a spoliation remedy. In tort law when a party has destroyed records, it is sometimes appropriate to employ a rebuttable presumption that the records would have established facts unfavorable to the party who destroyed the doeu-ments.

We regard the argument as without merit. We are unaware of any case that has applied a spoliation remedy in a public law context. Moreover, Stanek has not shown that other sources, such as newspaper archives, do not show the impetus for this initiative. Most importantly, while it is easy to imagine that the initiative might have been promoted to lessen the tax burden on local home owners, as distinct from nonresidents who own see-ond homes, this would be merely a popular way of stating that it is designed to promote owner-occupied home ownership. This would not detract from the legitimacy of that objective.

Since analysis of equal protection claims under the federal constitution is, if anything, more forgiving than the approach we use under the Equal Rights Clause of the Alaska Constitution, it follows from our conclusion that the state Equal Rights Clause is not violated, that the federal Equal Protec tion Clause is also not violated.

C. The Right To Travel

The second paragraph of KPB 5.12.115(A) provides that if the owner of record occupied the residence for less than 183 days during the previous year the borough assessor may presume that the property has not been occupied as the owner's primary place of residence. Stanek challenges this provision as an unjustified durational residency requirement that violates the right to travel as recognized by the federal and state constitutions.

We have recognized that there is a right to inter-state or intra-state travel that may be impinged "when a governmental entity creates distinctions between residents based upon the duration of their residency." Not all durational residency requirements trigger heightened serutiny. In order to determine what: level of scrutiny should be applied, a test is used that "balances the nature and extent of the infringement on this right caused by the classification against the state's purpose in enacting the statute and the fairness and substantiality of the relationship between that purpose and the classification.

But in this case we need not decide what level of serutiny the ordinance's 183-day presumptive period should receive, or whether the ordinance violates the right to travel. Stanek lacks standing to bring a right to travel challenge because his house in the borough is not by any measure his permanent place of residence. Since Stanek does not use his borough home as his primary residence, the 183-day presumptive period is irrelevant to him. Only if he were to move into the house with an intention to make it his permanent place of abode would the 183-day clock begin to tick. Stanek has no personal stake in the constitutionality of the 183-day presumptive period. Thus he lacks standing to challenge it.

D. Statutory Arguments

Alaska Statute 29.45.050 authorizes municipalities to exempt residential property from taxation in an amount not to exceed the assessed value of $10,000. Alaska Statute 29.45.050(a) provides:

A municipality may exclude or exempt or partially exempt residential property from taxation by ordinance ratified by the voters at an election. An exclusion or exemption authorized by this section may not exceed the assessed value of the $10,000 for any one residence.

Alaska Statute 29.45.110(a) requires that "[the assessor shall assess property at its full and true value as of January 1 of the assessment year...."

Stanek argues that the ordinance violates AS 29.45.050 because the statutory exemptions are exclusive and the Borough has "exceeded the limitations set forth in AS 29.45.050 by providing property tax exemptions to Kenai Peninsula Borough residents outside of the exceptions set forth in AS 29.45.050."

The premise of Stanek's argument that the statutory exemptions mentioned in AS 29.45.050(a)-(r) are exclusive appears to be sound and is not challenged by the Borough. But the Borough argues that the ordinance merely defines "residential property" as used in AS 29.45.050(a) and that it has the implied power to give a narrow but reasonable meaning to the statutory term. We agree with the Borough's argument.

The term "residential property" as used in the statute requires definition. The definition imposed by the ordinance-basically that residential property means the owner's primary residence-is a narrow but reasonable interpretation of the statute. Article X, seetion 1 of the Alaska Constitution mandates that a liberal construction be given to the powers of local government and this applies to the taxing authority of local governments. The themes of liberal construction and broad local powers are also expressed statutorily in AS 29.35.400 and 410. We have also observed that tax exemptions should be narrowly construed to the end that "disturb[ances] to ... that equality in the distribution of this common burden upon all property which is the object and aim of every just system of taxation" be minimized.

Considering all these factors we conclude that the Borough had the power to define the statutory term "residential property" as it did. We thus conclude that the Borough ordinance is authorized by AS 29.45.050(a) and does not violate that subsection.

Stanek also argues that the ordinance violates AS 29.45.110 which commands that property be assessed at its full and true value. This argument also lacks merit. The ordinance does not conflict with the statute. It does not require that residential property be assessed for less than full and true value. By requiring the equal assessment of property AS 29.45.110 implies an equal taxation goal. Accepting that equal taxation is a goal of section .110, this goal is necessarily subject to tax exemptions that are authorized by statute. As we have seen, the exemption in this case is authorized by statute. Therefore Stanek's argument that section .110 bars the exemption fails.

IV. CONCLUSION

The decision of the superior court is AFFIRMED.

      . KPB 5.12.115 states:
      A. The first $10,000 of assessed valuation of a single parcel of residential real property owned and occupied by the owner of record as the owner's permanent place of residence in the borough, shall be exempt from the borough tax levy on real property within the Kenai Peninsula Borough.
      The assessor may presume that the property has not been occupied as the owner of record's primary residence and permanent place of abode, if the owner of record occupied it for less than 183 days during the previous year. If the current owner of record can provide the assessor with satisfactory evidence that the lack of occupancy was for medical reasons, the exemption may be granted.
      The second paragraph was added in 1998.

      . However, when a classification is based on a suspect factor such as race, the question is much more demanding: is there a "compelling" reason for the classification, and if so, is the enactment narrowly designed to bring about its goal? This is commonly referred to as strict scrutiny. Additionally, under federal equal protection analysis, there are quasi-suspect factors such as gender and illegitimacy where the inquiry is whether the purpose of the enactment is "important" and whether the enactment bears a substantial relationship to the accomplishment of its purpose. This is usually referred to as intermediate seru-tiny. Under this court's equal protection analysis we use a "sliding scale" between strict serutiny and the most tolerant "legitimate reason" test. "As the right asserted becomes 'more fundamental or the classification scheme employed becomes 'more constitutionally suspect," the challenged law 'is subjected to more rigorous serutiny at a more elevated position on our sliding scale. " We have, however, in the sixteen years since the sliding seale approach was first formulated only identified three stops on the sliding scale-at the relaxed, intermediate, and strict levels of scrutiny.

      . Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979).

      . Alaska Const. art. I, § 1.

      . 882 P.2d 389, 396 (Alaska 1994).

      5. Id. at 396 (citations omitted).

      . Matanuska-Susitna Borough Sch. Dist. v. State, 931 P.2d 391, 398 (Alaska 1997) (quoting Atl. Richfield Co. v. State, 705 P.2d 418, 437 (Alaska 1985)).

      . Federal programs encourage home ownership. See, eg., 12 U.S.C. § 17151 (2003). Tax exemptions for primary residences "promote the stability and welfare of the state by encouraging property ownership and independence on the part of the citizen and by preserving a home where the family may be sheltered and live beyond the reach of economic misfortune." Reinish v. Clark, 765 So.2d 197, 206-07 (Fla.App.2000) (quoting Bigelow v. Dunphe, 143 Fla. 603, 197 So. 328, 330 (1940)).

      . Reinish, 765 So.2d at 208 ("[Slecondary residences do not trigger the same public policy concerns and are not entitled to the same protection as permanent ... residences.").

      9. Id. at 205 (emphasis in original).

      10. Id. at 207.

      . 272 A.D.2d 971, 973, 708 N.Y.S.2d 674 (2000) (citation omitted).

      . Id.

      13. 239 Mich.App. 284, 608 N.W.2d 480, 483 (2000).

      . See Sweet v. Sisters of Providence in Washington, 895 P.2d 484, 492 (Alaska 1995).

      . "Minimal scrutiny under our state constitution may be more demanding than under the federal constitution. As under the federal constitution, the challenged exclusion must be designed to achieve a 'legitimate' governmental objective; however, the exclusion must bear a 'fair and substantial' relationship to the accomplishment of the legitimate objective" under state law whereas the relationship under federal law need only be "rational." State, Dep't of Revenue, Permanent Fund Dividend Div. v. Cosio, 858 P.2d 621, 629 & n. 11 (Alaska 1993).

      . Gilman v. Martin, 662 P.2d 120, 125 (Alaska 1983).

      . Church v. State, Dep't of Revenue, 973 P.2d 1125, 1131 (Alaska 1999).

      . Id. (quoting Alaska Pac. Assurance Co. v. Brown, 687 P.2d 264, 271 n. 10 (Alaska 1984)).

      . See Hoblit v. Comm'r of Natural Res., 678 P.2d 1337, 1340 (Alaska 1984) (stating that a party has standing to obtain judicial resolution only when he has "a sufficient 'personal stake' in the outcome of the controversy to ensure the requisite adversity").

      . Art. X, § 1 provides:
      The purpose of this article is to provide for maximum local self-government with a minimum of local government units, and to prevent duplication of tax-levying jurisdictions. A liberal construction shall be given to the powers of local government units.

      . Liberati v. Bristol Bay Borough, 584 P.2d 1115, 1120 (Alaska 1978).

      . AS 29.35.400 provides:
      A liberal construction shall be given to all powers and functions of a municipality conferred in this title. _
      AS 29.35.410 provides:
      Unless otherwise limited by law, a municipality has and may exercise all powers and functions necessarily or fairly implied in or incident to the purpose of all powers and functions conferred in this title.

      . Greater Anchorage Area Borough v. Sisters of Charity of the House of Providence, 553 P.2d 467, 469 (Alaska 1976) (quoting Animal Rescue League of Boston v. Bourne's Assessors, 310 Mass. 330, 37 N.E.2d 1019, 1021 (1941)).

      . Article IX, section 4 of the Alaska Constitution provides that tas exemptions of real property may be granted by law:
      The real and personal property of the State or its political subdivisions shall be exempt from taxation under conditions and exceptions which may be provided by law. All, or any portion of, property used exclusively for nonprofit religious, charitable, cemetery, or educational purposes, as defined by law, shall be exempt from taxation. Other exemptions of like or different kind may be granted by general law. All valid existing exemptions shall be retained until otherwise provided by law.
      (Emphasis added.)