text:
    In the MATTER OF the Necessity for the Hospitalization of LINDA M.
    Supreme Court No. S-16841
    Supreme Court of Alaska.
    March 22, 2019
    Laurence Blakely, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for Linda M.
    David T. Jones, Assistant Attorney General, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for State of Alaska.
    Before: Bolger, Chief Justice, Winfree, Stowers, Maassen, and Carney, Justices.
   MAASSEN, Justice.

I. INTRODUCTION

The district court found that a woman charged with several misdemeanors was incompetent to stand trial and committed her to a state hospital. The hospital later brought petitions in the superior court for civil commitment and involuntary medication. The woman moved to dismiss or stay the proceedings, contending that the superior court was an improper forum because of the criminal case pending in the district court. The superior court denied the motion, asserted its jurisdiction to hear the case, and granted the hospital's petition for authority to administer medication.

The woman appealed. We hold that the superior court properly asserted its jurisdiction over the civil commitment and involuntary medication petitions and that the superior court did not err in finding that involuntary medication was in the woman's best interests. We therefore affirm the superior court's orders.

II. FACTS AND PROCEEDINGS

Linda M. was charged with several misdemeanor criminal offenses. The district court found her incompetent to stand trial and, pursuant to AS 12.47.110, ordered that she be committed to the Alaska Psychiatric Institute (API) for restoration of competency. The commitment order noted that "Defendant may not be involuntarily medicated pursuant to this order." The commitment was to last 90 days unless Linda was rendered competent earlier or the criminal charges were otherwise "disposed of according to law."

Linda entered API in late July 2017. While there she hit and spat on staff members and hit another patient, leading API to believe she was likely to cause harm to herself or others. On August 9 API filed a petition to have Linda civilly committed for 30 days under AS 47.30.730, even though she could not leave API in any event because of the competency commitment order in her criminal case. API also petitioned for authority under AS 47.30.839 to medicate Linda, without her consent, with chlorpromazine (Thorazine ) and diphenhydramine. These petitions were filed in the superior court, the venue specified by the civil commitment statutes.

Linda objected and moved to dismiss or stay the superior court proceedings, arguing that any decisions about medication should be made by the district court overseeing the competency commitment in her criminal case. A hearing was set for August 23.

On August 17 API filed an emergency motion for an order authorizing the administration of crisis medication, asserting a high likelihood of situations requiring the "immediate use of medication in order to preserve the life of, or prevent significant physical harm to, [Linda] or another person" before the scheduled hearing. Linda again raised her objection to the superior court's jurisdiction and contested the medication petition on its merits, arguing that API had made an insufficient showing that involuntary medication was necessary.

The superior court held an emergency hearing on August 18 and took testimony from Linda's treating psychiatrist, Dr. Michael Alexander. Dr. Alexander testified that Linda had already been put on crisis medication three times; each time she had spit on a nurse and once she had punched another patient in the face. Dr. Alexander opined that the only alternative to administering medication was to leave Linda in a locked room and hope she would calm down on her own. The superior court, after some consideration, denied Linda's procedural arguments at least on an emergency basis and granted the emergency motion for crisis medication.

At the August 23 hearing, the superior court returned to the procedural motion, denied it, then turned to the merits of the involuntary medication petition. The court heard from the court visitor, who testified that Linda was incapable of giving informed consent because she did not accept her diagnosis of schizophrenia and was incapable of rationally participating in treatment decisions. The court visitor did believe, however, that Linda's objections to the medication based on her pregnancy were reasonable.

Dr. Alexander again testified, describing Linda's diagnosis of schizophrenia and his plan for involuntary medication. He testified that Linda had "ongoing" and "persistent" paranoia and delusions that would not go away without medication. He testified that Thorazine was the best medication for her because she had successfully taken it in the past without side effects and that other, similar medications had "a greater risk of causing ongoing problems for both her and for the child." Linda then testified on her own behalf, describing what she believed to be the side effects of the medication and asserting mistreatment by API staff and her parents, involving, among other things, putting excess gluten in her food and implanting metal in her body so they could track her by computer.

The superior court found by clear and convincing evidence that Linda had a mental illness - schizophrenia - and that because of it she was substantially likely to harm herself or others if not treated. It found that she was incapable of giving or withholding informed consent to treatment, that it was in her best interests that she be treated with Thorazine as Dr. Alexander proposed, and that there were no available less intrusive means to adequately treat her. The court therefore authorized involuntary medication of Linda in both crisis and non-crisis situations.

Linda appeals both the superior court's ruling that it had jurisdiction over the medication petition and its decision to grant that petition.

III. STANDARD OF REVIEW

We decide de novo questions of statutory and constitutional interpretation and jurisdiction. " 'Factual findings in involuntary commitment or medication proceedings are reviewed for clear error,' and we reverse those findings only if we have a 'definite and firm conviction that a mistake has been made.' " However, "[w]hether those findings meet the ... statutory requirements is a question of law we review de novo."

IV. DISCUSSION

A. The Superior Court Did Not Err By Hearing The Civil Commitment And Involuntary Medication Petitions.

Linda contends that the superior court erred when it denied her request to dismiss or stay civil commitment and involuntary medication proceedings; she argues that the only proper forum for such proceedings was the district court in which the criminal case was pending. She contends that under Sell v. United States the court in the criminal case must consider the question of involuntary medication "even [if it is sought] for reasons other than [competency] restoration"; that Alaska's competency statute does not contemplate the commencement of civil commitment proceedings during the criminal commitment; and that allowing simultaneous criminal and civil proceedings will result in various practical problems. We disagree.

In Sell the United States Supreme Court required a court in a criminal case to make four essential findings before it could order an incompetent defendant to undergo involuntary medication for the purpose of restoring competency: (1) "that important governmental interests are at stake"; (2) "that involuntary medication will significantly further those concomitant state interests"; (3) "that involuntary medication is necessary to further those interests"; and (4) "that administration of the drugs is medically appropriate, i.e., in the patient's best medical interest in light of his [or her] medical condition." The Court emphasized that this four-part test applied only when the trial court was considering whether involuntary medication was necessary to significantly "further a particular governmental interest, namely, the interest in rendering the defendant competent to stand trial." "[I]f forced medication is warranted for a different purpose, such as the purposes set out in [Washington v. ] Harper related to the individual's dangerousness, or purposes related to the individual's own interests where refusal to take drugs puts his health gravely at risk," then whether medication is warranted to restore competency need not even be considered. The Court noted that "courts typically address involuntary medical treatment as a civil matter, and justify it on these alternative, Harper -type grounds," citing as one example Alaska's statutes for the appointment of guardians with the authority to make medical decisions for incapacitated persons. "If a court authorizes medication on these alternative grounds, the need to consider authorization on trial competence grounds will likely disappear." A court that is asked to approve involuntary medication for competency purposes should therefore "ordinarily determine whether the Government seeks, or has first sought, permission for forced administration of drugs on these other Harper - type grounds; and, if not, why not."

Sell thus explicitly contemplates that, despite pending criminal charges, a state may seek authority to involuntarily medicate a committed defendant for reasons other than the defendant's competency to stand trial. The standards for granting such authority in Alaska are well defined:

[T]he State must prove - by clear and convincing evidence - "that the committed patient is currently unable to give or withhold informed consent regarding an appropriate course of treatment" and that the patient never refused such treatment while previously competent. If the court determines that the patient is not competent to make the decision, the court must next determine whether the medication is in the patient's best interests.[ ]

Factors the court is required to consider in determining the patient's best interests in this context include the " Myers factors":

(A) an explanation of the patient's diagnosis and prognosis, or their predominant symptoms, with and without medication;
(B) information about the proposed medication, its purpose, the method of its administration, the recommended ranges of dosages, possible side effects and benefits, ways to treat side effects, and risks of other conditions, such as tardive dyskinesia ;
(C) a review of the patient's history, including medication history and previous side effects from medication;
(D) an explanation of the interactions with other drugs, including over-the-counter drugs, street drugs, and alcohol; and
(E) information about alternative treatments and their risks, side effects, and benefits, including the risks of nontreatment.[ ]

Additional best interest factors the court is encouraged, but not required, to consider - the so-called "Minnesota factors" - include:

(1) the extent and duration of changes in behavior patterns and mental activity effected by the treatment; (2) the risks of adverse side effects; (3) the experimental nature of the treatment; (4) its acceptance by the medical community of the state; and (5) the extent of intrusion into the patient's body and the pain connected with the treatment.[ ]

Whether the patient is competent to stand trial - that is, whether a criminal defendant is able "to understand the proceedings against the defendant or to assist in the defendant's own defense" - does not appear among these factors and plays no part in the best-interests determination relevant to civil commitment.

Linda argues, however, that Sell anticipates that it will be the criminal court deciding whether there are competency or non-competency grounds for involuntary medication - implying that the criminal court would be sensitive to the prospect of forced competency. But we do not read Sell as requiring consolidation of criminal and civil mental health proceedings in a single court; indeed, Sell did not address consolidation at all, as the case before the Court involved only the government's request in the criminal proceeding to medicate the defendant in order to render him competent to stand trial. Whether there is one court or two, Sell makes clear that its four-part inquiry is relevant only to a determination of competency in a criminal case. And, as noted above, the Sell Court's reference to state civil commitment procedures, and its advice that courts look for "alternative, Harper -type grounds" for involuntary medical treatment, strongly imply its approval of the "separate, confidential civil proceeding" that Linda argues is inconsistent with Sell .

Linda also argues that Alaska's statutes contemplate sequential processes, in which a civil commitment proceeding will commence "only after the resolution of competency in the criminal context." Linda points out that AS 12.47.110(b) allows competency commitments for two successive 90-day periods, after which, if the defendant has not been restored to competency, "the charges against the defendant shall be dismissed without prejudice, and continued commitment of the defendant shall be governed by the provisions relating to civil commitments under AS 47.30.700 - 47.30.915" absent unusual circumstances. But AS 12.47.110, while contemplating the need for sequential proceedings, presents no bar to concurrent proceedings. The statute envisions an end to a competency commitment that has failed to reach its goal: restoring the defendant to competency for purposes of standing trial in a criminal case. The statute recognizes the possibility that the defendant should remain hospitalized for reasons justifying civil commitment: that is, that the defendant "is mentally ill and that condition causes the [defendant] to be gravely disabled or to present a likelihood of serious harm to self or others." But incompetency to stand trial and mental illness for purposes of civil commitment may have coexisted all along. Commitment to treat the two conditions may be sequential, or the commitments may be concurrent or overlap if each is independently justified. Indeed, we would not expect API to have to wait until a court has decided under AS 12.47.110 that a defendant's competency cannot be restored before petitioning for civil commitment based on the patient's serious mental illness, risking a gap in the authority to provide necessary treatment.

Nonetheless, based on her view that the State may commence civil commitment proceedings only when "the criminal court's jurisdiction over the defendant's commitment expires," Linda asks us to hold that the State must seek civil relief "in the criminal court that ordered the defendant committed." A problem with this approach is that the criminal court - in this case the district court - may not have the jurisdiction to order the necessary treatment. Only the civil commitment statutes address involuntary medication, and under those statutes only the superior court may authorize it. Alaska Statute 47.30.839 allows "[a]n evaluation facility or designated treatment facility [to] seek court approval for administration of psychotropic medication to a patient by filing a petition with the court." For purposes of that provision, " 'court' means a superior court of the state." The superior court - the only court with jurisdiction to do so - must be able to entertain an involuntary medication petition despite the fact that a district court has committed the defendant for competency purposes.

Linda also contends that allowing parallel competency and civil commitment proceedings "may undermine the resolution of competency in the criminal matter and cause other practical problems." She argues that medicating a defendant as authorized in a civil commitment proceeding "affects the defendant's mental state and the defendant's competency in the criminal case"; she states that "[t]reatment for restoration is not separate and distinct from treatment for general wellbeing." But she provides no medical support for these statements, either generally or as to Linda specifically. Treatment directed toward the symptoms of mental illness may or may not affect a defendant's competency to stand trial. Sell specifically recognizes the difference, as do Alaska's statutes.

Finally, Linda argues - though without significant legal analysis - that her rights "to assistance of counsel and due process in the criminal case[ ]" are violated if the State is allowed to initiate a separate civil commitment case without some guarantee that both the criminal court and her defense counsel in the criminal case will be notified of it. She argues that when the criminal court is considering whether to order medication to restore competency, it needs to know about "medication administered for other purposes." The question is academic in this case, since, as discussed above, the district court lacks jurisdiction to order involuntary medication. In any event, competency commitments, civil commitments, and authorizations to involuntarily medicate a patient all require evidentiary hearings at which the petitioner - typically the State - bears the burden of proof. We are given no reason to believe that the petitioner's witness - often a treating healthcare provider - would not be in a position to testify about all medications and other treatments being administered, regardless of their purpose.

As for notice to defense counsel, Linda argues generally that her rights to counsel and due process will be at risk unless "notice of the commitment proceeding, and an opportunity to be heard, [are] provided to the criminal defense attorney." She asks that we at least impose a requirement of formal notice, pointing out that defense lawyers cannot depend on their clients for information about parallel proceedings: "[C]riminal defendants frequently object personally to being found incompetent and may not want their criminal defense attorney to know about a civil commitment proceeding." Linda's counsel in the civil case argued that she and Linda's criminal defense lawyer lacked access to the full records of each other's cases, though she conceded they had spoken about the civil commitment. Lack of notice to defense counsel was thus not at issue in this case. We decline to decide a constitutional challenge that is purely theoretical and would have no effect on Linda's own rights.

In sum, the superior court was the proper court for commencement of civil proceedings for commitment and involuntary medication, and the court did not err when it denied Linda's motions to stay or dismiss the proceedings because of the competency commitment ordered by the district court.

B. The Superior Court Made An Independent Determination Of Linda's Best Interests And Did Not Err By Authorizing Involuntary Medication .

In Myers v. Alaska Psychiatric Institute we held that the right to refuse psychotropic medication is fundamental under the Alaska Constitution's liberty and privacy protections. Therefore, "before [the] state may administer psychotropic drugs to a non-consenting mentally ill patient in a non-emergency setting, an independent judicial best interests determination is constitutionally necessary to ensure that the proposed treatment is actually the least intrusive means of protecting the patient." The court must find by clear and convincing evidence that the patient is incapable of giving informed consent and that the administration of medication is in the patient's best interests "considered in light of any available less intrusive treatments."

Linda argues that the superior court erred when it found that API satisfied its burden of proving that the involuntary administration of Thorazine was in her best interests. Specifically, she contends that the superior court "failed in its duty to make an independent judicial determination, instead deferring to the judgment of Linda's treatment providers"; that the court erred in finding that API considered alternative treatments; and that the court "erred in discounting Linda's concerns over Thorazine based on her pregnancy and rejecting out of hand the option of not administering any medication." Our review of the record, however, leads us to conclude that the superior court made an independent best interests determination and that its findings were not erroneous.

First, the record sufficiently demonstrates that the superior court made its own "independent judicial determination" that the administration of medication was in Linda's best interests. The court considered the testimony of the court visitor, Dr. Alexander, and Linda herself in deciding that Linda was incapable of giving or withholding informed consent. The court gave deference to Dr. Alexander's "very thoughtful" opinion of Linda's treatment, deciding that "great care ha[d] been taken ... to determine and propose medications that she ha[d] previously experienced without side effect[s] and that involve[d] the least amount of risk possible to [Linda] and to her pregnancy while effectively treating [her] current condition." The court was entitled to rely on the doctor's expert testimony when reaching its own independent conclusion about Linda's best interests.

The record also supports the independent conclusion that there were no less intrusive alternatives to involuntary medication. Dr. Alexander explained why Thorazine was the best option; he opined that isolation was the only possibly effective alternative but that, unlike medication, it would not address Linda's persistent delusions and paranoia. The court did not err by accepting Dr. Alexander's opinion that medication was necessary to effectively treat Linda and that not medicating her "would lead to greater suffering, mental, emotional, but also physical ... for [Linda] and for her child."

Finally, the record shows that the superior court considered the risks of Thorazine and the reasonableness of Linda's pregnancy-based objection to it. The court relied in part on its direct observations of Linda during the hearing to discount her fears about the side effects and to give more credence to Dr. Alexander's testimony about them. We defer to the superior court's credibility determination.

V. CONCLUSION

We AFFIRM the orders of the superior court asserting its jurisdiction and granting the petition for involuntary medication.

      We use a pseudonym to protect the party's privacy.

      See AS 47.30.730(a) (authorizing petitions for 30-day commitments to be filed in court); AS 47.30.839 (authorizing petitions for involuntary medication to be filed in court); AS 47.30.915(3) (defining "court" as "superior court").

      See AS 47.30.838(a)(1).

      See AS 47.30.839(d).

      In re Hospitalization of Jacob S. , 384 P.3d 758, 764 (Alaska 2016).

      State v. Alaska Civil Liberties Union , 978 P.2d 597, 603 (Alaska 1999).

      Barlow v. Thompson , 221 P.3d 998, 1001 (Alaska 2009).

      In re Jacob S. , 384 P.3d at 763-64 (quoting Wetherhorn v. Alaska Psychiatric Inst. , 156 P.3d 371, 375 (Alaska 2007), overruled in part on other grounds by In re Hospitalization of Naomi B. , 435 P.3d 918, Op. No. 7328 at 19, 2019 WL 167223, at *8 (Alaska Jan. 11, 2019) ).

      Id.

      539 U.S. 166, 123 S.Ct. 2174, 156 L.Ed.2d 197 (2003).

      Id. at 180-81, 123 S.Ct. 2174 (emphases omitted).

      Id. at 181, 123 S.Ct. 2174 (emphasis omitted).

      Id. at 181-82, 123 S.Ct. 2174 (emphasis in original) (citing Washington v. Harper , 494 U.S. 210, 225-26, 110 S.Ct. 1028, 108 L.Ed.2d 178 (1990) ).

      Id. at 182, 123 S.Ct. 2174 (citing former AS 13.26.105(a) (2002) (renumbered as AS 13.26.221(a) ); former AS 13.26.116(b) (2002) (renumbered as AS 13.26.226(b) )).

      Id. at 183, 123 S.Ct. 2174.

      Id.

      In re Hospitalization of Jacob S. , 384 P.3d 758, 769-70 (Alaska 2016) (quoting Myers v. Alaska Psychiatric Inst. , 138 P.3d 238, 243 (Alaska 2006) ); see also AS 47.30.836(3), AS 47.30.839(g).

      In re Hospitalization of Naomi B. , 435 P.3d 918, Op. No. 7328 at 32, 2019 WL 167223, at *14 (Alaska Jan. 11, 2019) (quoting Myers , 138 P.3d at 252 ); see also AS 47.30.837(d)(2).

      Id. at 934-35, 33, 2019 WL 167223 at *14 (quoting Myers , 138 P.3d at 252 ). These additional factors are "derived from a ruling of the Supreme Court of Minnesota." Bigley v. Alaska Psychiatric Inst. , 208 P.3d 168, 180 (Alaska 2009) ; see Price v. Sheppard , 307 Minn. 250, 239 N.W.2d 905, 913 (1976).

      AS 12.47.110(a).

      Sell v. United States , 539 U.S. 166, 169-75, 123 S.Ct. 2174, 156 L.Ed.2d 197 (2003).

      Id. at 181-82, 123 S.Ct. 2174.

      Id. at 182, 123 S.Ct. 2174 ("There are often strong reasons for a court to determine whether forced administration of drugs can be justified on these alternative grounds before turning to the trial competence question." (emphasis in original)).

      AS 12.47.110(b). The court may extend the commitment period for another six months if "the defendant is charged with a crime involving force against a person and the court finds that the defendant presents a substantial danger of physical injury to other persons and that there is a substantial probability that the defendant will regain competency within a reasonable period of time." Id.

      AS 47.30.700(a).

      They are sometimes presumed to be coextensive: "A defendant charged with a felony and found to be incompetent to proceed under this section is rebuttably presumed to be mentally ill and to present a likelihood of serious harm to self or others in proceedings under AS 47.30.700 - 47.30.915." AS 12.47.110(e).

      AS 47.30.915(3).

      Sell , 539 U.S. at 182, 123 S.Ct. 2174 (recognizing that "medical experts may find it easier to provide an informed opinion about whether, given the risk of side effects, particular drugs are medically appropriate and necessary to control a patient's potentially dangerous behavior (or to avoid serious harm to the patient himself) than to try to balance harms and benefits related to the more quintessentially legal questions of trial fairness and competence"); id. at 185, 123 S.Ct. 2174 ("Whether a particular drug will tend to sedate a defendant, interfere with communication with counsel, prevent rapid reaction to trial developments, or diminish the ability to express emotions are matters important in determining the permissibility of medication to restore competence, ... but not necessarily relevant when dangerousness is primarily at issue.").

      See AS 12.47.110(d) ("A defendant receiving medication for either a physical or a mental condition may not be prohibited from standing trial, if the medication either enables the defendant to understand the proceedings and to properly assist in the defendant's defense or does not disable the defendant from understanding the proceedings and assisting in the defendant's own defense.").

      See AS 47.30.839(b) (authorizing petitions for involuntary medication to be filed in court); AS 47.30.915(3) (defining "court" as "superior court").

      See AS 12.47.110(a), (b) (competency hearings); AS 47.30.735 (30-day commitment hearings); AS 47.30.755(a) (90-day commitment hearings); AS 47.30.839(e) -(g) (court-ordered administration of medication hearings).

      See, e.g. , In re Hospitalization of Naomi B. , 435 P.3d 918, 921-22, Op. No. 7328 at 3-4, 2019 WL 167223, at *1-2 (Alaska Jan. 11, 2019) (involving involuntary commitment based in part on testimony of treating psychiatrist); In re Hospitalization of Paige M. , 433 P.3d 1182, 1183-84 (Alaska 2018) (involving involuntary commitment based on testimony of treating psychologist); In re Hospitalization of Darren M. , 426 P.3d 1021, 1023-24 (Alaska 2018) (involving involuntary commitment based in part on testimony of treating psychiatric nurse practitioner); In re Hospitalization of Mark V. , 375 P.3d 51, 59 (Alaska 2016) (involving involuntary commitment based on testimony of treating psychiatrist).

      See State v. Am.Civil Liberties Union of Alaska , 204 P.3d 364, 374 (Alaska 2009) (declining to decide constitutional challenge "in a hypothetical setting" where risks of doing so outweighed hardships to plaintiffs if issue was left undecided).

      138 P.3d 238, 246-48 (Alaska 2006).

      Id. at 250.

      Id. at 252-53.

      See id. at 250 (observing that the best interests determination "certainly must be fully informed by medical advice received with appropriate deference, [though] in the final analysis the answer must take the form of a legal judgment that hinges not on medical expertise but on constitutional principles aimed at protecting individual choice").

      See In re Hospitalization of Jacob S. , 384 P.3d 758, 769 & n.36 (Alaska 2016) (observing that "we will not question on appeal" superior court's finding that respondent was not credible in testifying that "he would be willing to take medication and participate in outpatient treatment if released from API").


source: Caselaw Access Project

author: CARNEY, Justice.

license: Public Domain

text:
    ALASKA SPINE CENTER, LLC, Appellant, v. MAT-SU VALLEY MEDICAL CENTER, LLC, an Alaska limited liability company d/b/a Mat-Su Regional Medical Center; Surgery Center of Wasilla, LLC ; and State of Alaska, Appellees.
    Supreme Court No. S-16917
    Supreme Court of Alaska.
    March 29, 2019
    Susan Orlansky, Reeves Amodio LLC, Anchorage, for Appellant.
    Jennifer M. Coughlin, Landye Bennett Blumstein LLP, Anchorage, for Appellee Mat-Su Valley Medical Center, LLC.
    Danielle M. Ryman, Perkins Coie LLP, Anchorage, and David B. Robbins, Kathleen M. O'Sullivan, and Luke Rona, Perkins Coie LLP, Seattle, Washington, for Appellee Surgery Center of Wasilla, LLC.
    Notice of nonparticipation filed by Dario Borghesan, Assistant Attorney General, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for Appellee State of Alaska.
    Before: Bolger, Chief Justice, Winfree, Stowers, and Carney, Justices. [Maassen, Justice, not participating.]
   CARNEY, Justice.

I. INTRODUCTION

The state agency responsible for regulating the operation of healthcare facilities throughout Alaska requires most such facilities to document the need for proposed services before the state approves construction of a new facility. The agency determined that an ambulatory surgical facility seeking to relocate from Anchorage to Wasilla did not need to submit such documentation because it was moving within the same community as defined by the relevant statute. Competing medical facilities in the Matanuska-Susitna Borough objected to the determination, arguing that Anchorage and Wasilla are not the "same community" and that the proposed relocation required the usual certification of need. Because Anchorage and Wasilla are not the same community as contemplated by the statute, we reverse the determination that the facility was exempt from the required certification process.

II. FACTS AND PROCEEDINGS

A. Background

The Alaska Department of Health and Social Services is responsible for the regulation and provision of numerous health and social services programs. In order to promote the balanced development and operation of such facilities throughout the state, the legislature established a "Certificate of Need" program to be administered by the Department. Pursuant to statute and regulation, program staff determine the healthcare needs of an area by using a number of general and service-specific review standards and calculations. The standards address "Alaska's distinctive operational environment" by taking into account accessibility and the needs of local stakeholders. The program's goal is to ensure that no area receives more or fewer services than it needs.

Most healthcare facilities are required to obtain a certificate of need (CON) before beginning construction:

(a) Except as provided in (c) and (d) of this section, a person may not make an expenditure of $1,000,000[ ] or more for any of the following unless authorized under the terms of a certificate of need issued by the department:
(1) construction of a health care facility;
(2) alteration of the bed capacity of a health care facility; or
(3) addition of a category of health services provided by a health care facility.[ ]

Preparing and submitting a CON application is a time-consuming process. The CON application must contain all of the information required in the Department's Certificate of Need Application Packet , which includes: a project description with detailed cost estimates and construction timelines; estimates of the population to be served and in what capacity; analysis of the need for these services; documented efforts of community outreach; comparison to community, state, and federal plans; analysis of alternatives; calculations of the impact the facility will have on the existing healthcare system; and evidence that the facility will be accessible to users. The applicant must also pay an application fee, agree to participate in a statewide reporting system required by statute, and state whether the proposed CON is intended to change the bed capacity of the service area.

But a statutory exemption allows an existing ambulatory surgery facility to relocate within the same community as long as it does not increase the services that it offers:

Notwithstanding (a) of this section, a person who is lawfully operating a health care facility that is an ambulatory surgical facility at a site may make an expenditure of any amount in order to relocate the services of that facility to a new site in the same community without obtaining a certificate of need as long as neither the bed capacity nor the number of categories of health services provided at the new site is greater.[ ]

The relocation exemption was added to the CON statute in 2000 after an ambulatory surgical center that wished to relocate two blocks from its existing location in Anchorage lobbied for an exemption to allow it to avoid the costs of the CON process. The Anchorage facility's move was exempted shortly after the legislation passed. Fifteen years later a Wasilla facility relocated within Wasilla, and was granted the same exemption. Alaska Spine is the third applicant for an exemption from the CON requirement.

To determine whether it qualifies for an exemption or must expend the time and resources needed to prepare a CON application, a healthcare facility may submit a Request for Determination (RFD) to the Department prior to beginning the CON process. Once the Department makes a determination, it must publish notice of its decision online and in a statewide newspaper.

B. Facts

Alaska Spine Center is an ambulatory surgical facility located in Anchorage. Alaska Spine was not required to obtain a CON when it first constructed its facility, nor when it later built an addition, because each of those projects cost less than the threshold amount at the time.

In early August 2016 Alaska Spine submitted an RFD to the Department seeking a determination that its relocation to Wasilla was exempt from CON requirements under AS 18.07.031(c). It requested the exemption because it would be relocating within the "same community" and would not increase its service capacity. The RFD acknowledged that costs "will exceed the current CON monetary threshold of $1.5 million." Alaska Spine explained that further cost details were unnecessary because the relocation exemption permitted expenditures of any amount.

The Department's CON program staff sent a letter to Alaska Spine seeking additional information: a certified cost estimate, a more specific location description, and a description of specific services to be offered. In response to Alaska Spine's claim that a more detailed cost estimate was unnecessary, the letter stated that "the Department cannot make that [d]etermination on the information provided."

Alaska Spine met with CON program staff to discuss the RFD, then submitted additional information on October 11. Following the meeting, program staff agreed with Alaska Spine that no cost estimate was necessary and accepted the acknowledgment that the cost would exceed $1.5 million because "there is no issue regarding whether this project will exceed the CON cost threshold." Program staff also determined that accepting such an estimate was in line with past CON determinations.

C. Proceedings

In October 2016 the Department published its determination: "For the purposes of CON, Wasilla is considered to be in the same service area as Anchorage. Therefore, the proposed relocation is considered to be within the same community." The determination also noted "neither capacity nor the number of categories of health services provided at the site will be greater." The Department concluded that Alaska Spine satisfied the exemption requirements of AS 18.07.031(c) and did not require a CON to relocate its facility to Wasilla.

In November 2016 Mat-Su Valley Medical Center, LLC filed suit in Anchorage superior court challenging the Department's determination, seeking declaratory and injunctive relief against the Department and Alaska Spine. Mat-Su Medical operates five surgery suites in the Matanuska-Susitna Valley at a Palmer facility. Mat-Su Medical argued that Anchorage and the Matanuska-Susitna Valley are not the "same community," that Alaska Spine therefore did not qualify for a relocation exemption, and that the Department's determination that it was exempt from a CON did not comply with the RFD regulation and was therefore void. Mat-Su Medical also sought both preliminary and permanent injunctions against the construction and operation of Alaska Spine's proposed Wasilla facility unless and until a CON was obtained. Both Alaska Spine and the Department answered the complaint, arguing the Department's determination was entitled to deference and that it had properly interpreted the CON laws and regulations.

In April 2017 Alaska Spine moved for summary judgment, arguing that the Department's determination and its acceptance of the RFD were owed deference because both were within the Department's specialized expertise. In response Mat-Su Medical filed a cross-motion for summary judgment, arguing that the meaning of "same community" was an issue of statutory interpretation committed to the court's independent judgment. It also argued that the statutory language, legislative history, and the Department's own regulations did not support the determination that Anchorage and Wasilla are in the "same community." Mat-Su Medical argued in addition that a certified cost estimate was explicitly required by regulation and could not be waived in an RFD.

The Department supported Alaska Spine's motion for summary judgment and opposed Mat-Su Medical's cross-motion. Alaska Spine opposed Mat-Su Medical's cross-motion for summary judgment.

Surgery Center of Wasilla, LLC, the only other ambulatory surgical facility operating in the Matanuska-Susitna Valley, moved to intervene in June. Mat-Su Medical asked the court to allow the intervention; both the Department and Alaska Spine opposed it. The superior court granted the motion to intervene and Surgery Center of Wasilla joined Mat-Su Medical's arguments against the exemption determination and lack of a cost estimate in the RFD.

The superior court granted Mat-Su Medical's cross-motion for summary judgment and denied Alaska Spine's motion for summary judgment. The court applied its independent judgment and concluded that Anchorage and Wasilla are not the same community. The court also found that Alaska Spine's RFD was void because its failure to include a cost estimate did not comply with the regulation.

Alaska Spine appeals. The Department has not appealed.

III. STANDARD OF REVIEW

"When the superior court acts as an intermediate appellate court, we independently review the merits of the underlying administrative decision. The specific form our independent review takes is de novo review."

We apply our independent judgment to review the agency's interpretation of "same community." Independent judgment is appropriate "where the agency's specialized knowledge and experience would not be particularly probative on the meaning of the statute." "[W]e 'look to the meaning of the language, the legislative history, and the purpose of the statute and adopt the rule of law that is most persuasive in light of precedent, reason, and policy' " when determining the meaning of a statute. When applying the plain meaning rule, we use "a sliding scale approach to statutory interpretation, in which 'the plainer the statutory language is, the more convincing the evidence of contrary legislative purpose or intent must be' " to overcome the plain meaning.

IV. DISCUSSION

The relocation exemption to the CON requirement allows an ambulatory surgical facility to relocate, regardless of the cost, so long as the relocation is in the same community and does not increase the bed capacity or number of health service categories provided. Alaska Spine's new facility will not increase its bed capacity or number of health service categories. At issue is whether Alaska Spine's move from Anchorage to Wasilla satisfies the exemption's requirement that it relocate within the "same community."

Anchorage and Wasilla are not in the "same community." Neither the plain language nor its legislative purpose allows for a determination that they are. The legislative history does not clearly support attaching a meaning to "same community" other than the plain language. While we need not define "same community," it is clear that Wasilla and Anchorage do not fall within the term's bounds. We therefore affirm the superior court's grant of Mat-Su Medical's cross-motion for summary judgment and its denial of Alaska Spine's motion for summary judgment.

A. The Meaning Of "Same Community" Is Clear Based On The Plain Language Of The Statute.

"When interpreting a statute, we construe its language 'in accordance with [its] common usage, unless the word or phrase in question has acquired a peculiar meaning by virtue of a statutory definition or judicial construction.' " "Same community" has not acquired any peculiar meaning in the CON context. The phrase is not used in any other part of the CON statutes and regulations, nor is there a definition in any other statute or regulation to which the CON program could look for guidance. "Same community" is a non-technical term and does not require a statutory definition to be understood. The common usage of the term "community" does not support the determination that Anchorage and Wasilla are in the "same community."

Alaska Spine and Mat-Su Medical argue for various dictionary definitions to support their interpretations of "same community." But there is no need to go beyond the common usage of the term: Wasilla and Anchorage are not commonly considered to be the "same community." Neither Anchorage residents nor Wasilla residents would consider themselves to be members of the same local community. The Municipality of Anchorage and the Matanuska-Susitna Borough (in which Wasilla is located) are distinct boroughs with separate local governments. Wasilla is located 44 miles northeast of Anchorage and is about a 55 minute drive away. As the superior court noted, Anchorage and Wasilla have separate school districts, separate police forces, different elected state representatives, independent hospitals, and no overlapping taxation issues.

The CON program coordinator looked at the definition of "service area" to determine whether Wasilla and Anchorage were in the same community. But the Department's regulations for the CON program suggest that the two terms are not interchangeable. The regulations define "service area" as "the geographic area to be served by the proposed activity, including the community where the proposed activity will be located." The definition thus suggests that "service area" is a broader concept than "community."

Alaska Spine argues that defining community as the service area makes sense because service area is the unit used to calculate health service needs, so relocating within the same service area should not change the calculations of need done by the Department. But the regulatory definition of service area treats community as its subset, and the use of different language shows these phrases are not synonymous. Principles of statutory construction mandate that we assume the legislature meant to differentiate between two concepts when it used two different terms. "Service area" is defined as an area "including the community where the proposed activity will be located." "Including" suggests that a community fits within a service area, but is not its equivalent. "Service area" is also used throughout CON regulations and application instructions; if the legislature meant "community" to be synonymous with "service area," a term discussed by the legislature prior to passing the relocation exemption, it would have had no reason to use the different term "community." We assume the legislature used a different word because it meant a different thing, and that the Department complied with legislative intent when it wrote its regulations. The plain meaning of "same community" is not equivalent to "service area."

B. The Legislative History Of AS 18.07.031 Is Not Contrary To The Plain Meaning Of "Same Community."

A party urging us to give statutory language a meaning other than its plain meaning bears the burden of demonstrating that legislative history is contrary to the plain meaning. The clearer the plain language, the more persuasive contrary legislative history must be. The relocation exemption plainly states that the relocation must be in the "same community." The legislative history surrounding this term is too inconclusive to disprove the plain meaning.

The statutory amendment allowed a health care facility to avoid the expense and delay of the CON process if it relocated within the same community without increasing the services offered. This legislative change was considered necessary because "CON time frames are extensive" and in the past "the CON could not be finished in the proper length of time." Because there would be no change in the facility's capacity or services offered, the legislature determined that a CON was not required.

The legislative history of the relocation statute provides little guidance, but is not clearly contrary to the statute's plain language. The legislative testimony and discussion were conflicting. The hearing record included a statement that Fairbanks and Delta Junction might be in the "same community" because they are in the same "service area." It contained statements from the committee chair that "community means service area." But the chair also stated that the "same community" exemption "would not allow someone to move from Anchorage to the Matanuska-Susitna Borough or vice versa," in part because facilities in Anchorage do not address the same community needs as those in the Matanuska-Susitna Valley.

The committee also alternated between leaving the "same community" determination to the Department's expertise and defining the term itself. The chair ended the discussion of whether Fairbanks and Delta Junction were the same community by declaring that the determination would be up to the Department, but then independently determined that Anchorage and the Matanuska-Susitna Borough were not in the same community.

Alaska Spine argues that this legislative history supports deference to the Department's interpretation of "same community." Mat-Su Medical argues that it does not, but urges us to focus on the statement that a move from Anchorage to the Matanuska-Susitna Borough - as Alaska Spine proposes - would not be allowed.

We are not persuaded by either argument. To overcome the plain meaning of the statute, Alaska Spine must demonstrate that the legislative history is clearly contrary to it. It has not done so. The legislative history is contradictory and ambiguous, and does not overcome the presumption in favor of the statute's plain language.

C. The Legislative Purpose Of AS 18.07.031 Supports The Plain Meaning Of "Same Community."

"[W]hen engaging in statutory interpretation, we aim to 'construe a statute in light of its purpose.' " We look to the intent of the legislature and prior applications of the statute by the agency when determining legislative purpose.

1. The relocation exemption's purpose

The CON program was established to ensure that there was "a need for the proposed service" before authorizing the construction of new health care facilities. The later addition of an exemption for a facility relocating within the same community allowed the Department to waive completion of a CON, but did not alter the CON program's purpose.

When a facility providing the same amount and type of service relocates within the same community, the CON calculations of need in that service area are not affected. The relocation exemption was intended to allow facilities which are not expanding their services to avoid the delays and expenses of the full CON process. The relocation exemption's purpose of streamlining the process for such facilities creates a narrow exception for a small number of applicants; it works in concert with the CON statute to achieve the legislature's overarching purpose.

2. Past applications of the relocation exemption and the term "community"

Alaska Spine argues that determining that it was eligible for the exemption aligns with the purpose of the statute. It urges us to uphold the Department's determination that "community" and "service area" are equivalent, arguing that this "perfectly fits the purpose of the statute" because both are considered when calculating the need for a given service area.

But not all regions of a service area are equivalent: while some residents of the Matanuska-Susitna Borough travel to Anchorage for health services, that does not mean similar numbers from Anchorage travel to the Matanuska-Susitna Borough. Mat-Su Medical presented evidence that only 1.6% of Mat-Su Regional's outpatients come from Anchorage. It is similarly likely that the majority of Alaska Spine's current Anchorage patients will not travel to a relocated facility in Wasilla. This illustrates that facilities in the Matanuska-Susitna Borough serve a different community than facilities in Anchorage, despite being in the same service area. Treating these terms as equivalent would undermine the CON program's purpose of ensuring an appropriate balance of services.

Since its adoption in 2000, there have only been two prior determinations of eligibility for the relocation exemption. Both of them were for relocations within the same municipality: the first was a two-block move in Anchorage; the second a move within the city of Wasilla. There has never been an application for or grant of a relocation exemption for a move from one municipality to another, and no previous consideration of whether Anchorage and Wasilla are in the "same community."

The Department has, however, explicitly referred to Anchorage and Wasilla as separate communities in another related context. In approving a 2016 CON application for long-term care facilities in the Matanuska-Susitna Valley, the Department noted that "[t]he CON Program considers the three communities of Anchorage, Wasilla and Palmer to be a single service area. The CON Program, in the history of its practice, has never excluded one community or divided the Anchorage/Matanuska-Susitna Valley service area when calculating need [for long-term care facilities]." The Department distinguished community from service area, treating Anchorage as a separate community from Wasilla. Consistent with the regulatory definition of service area that treats "community" as a subset within a "service area," the Department's CON program identified multiple communities within the service area. The Department's past practice in administering the CON program does not support its determination that Anchorage and Wasilla are the same community.

V. CONCLUSION

The Department's grant of the exemption was incorrect. We accordingly AFFIRM the superior court's grant of Mat-Su Medical's cross-motion for summary judgment and its denial of Alaska Spine's motion for summary judgment.

      AS 18.07; see Ch. 275, § 2, SLA 1976.

      See AS 18.07.035, 18.07.101 ; 7 Alaska Administrative Code (AAC) 07.025(a)(3) (2019) ; State of Alaska, Dep't of Health & Soc. Servs., Alaska Certificate of Need Review Standards and Methodologies 1 (2005), http://www.dhss.alaska.gov/dhcs/Documents/CertificateOfNeed/Standards.pdf.

      AS 18.07.031(d) raised the threshold to $1.5 million as of July 2014.

      AS 18.07.031(a).

      7 AAC 07.040(a) (2010).

      AS 18.07.031(c).

      Ch. 18, § 2, SLA 2000; see Beal v. McGuire , 216 P.3d 1154, 1159-61 (Alaska 2009) (providing a history of the exemption's creation).

      7 AAC 07.031.

      7 AAC 07.032.

      See AS 18.07.031(c) (allowing ambulatory surgical facility to relocate regardless of cost and without CON so long as bed capacity and services provided do not increase and it moves within same community).

      On appeal, we refer to Mat-Su Medical and Surgery Center of Wasilla collectively as "Mat-Su Medical."

      Heller v. State, Dep't of Revenue , 314 P.3d 69, 72 (Alaska 2013).

      Mat-Su Valley Med. Ctr., LLC v. Advanced Pain Ctrs. of Alaska, Inc. , 218 P.3d 698, 700 (Alaska 2009) ("[I]nterpretation and application of a statute are questions of law to which we apply our independent judgment."). We review agency decisions under the reasonable basis standard when they involve agency expertise or implicate fundamental policies within the scope of the agency's function. Matanuska-Susitna Borough v. Hammond , 726 P.2d 166, 175 (Alaska 1986). Although it is not clear that either is the case here given the dearth of previous applications for CON exemptions, our decision would be the same under the reasonable basis standard.

      Hammond , 726 P.2d at 175.

      Mat-Su Valley Med. Ctr., LLC , 218 P.3d at 701 (quoting Enders v. Parker , 66 P.3d 11, 13-14 (Alaska 2003) ).

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

      AS 18.07.031(c).

      Because we find Alaska Spine does not meet the requirements for "same community," we do not otherwise address the validity of Alaska Spine's RFD.

      City of Valdez v. State , 372 P.3d 240, 251 (Alaska 2016) (alteration in original)(quoting Municipality of Anchorage v. Suzuki , 41 P.3d 147, 150 (Alaska 2002) ).

      See Mat-Su Valley Med. Ctr., LLC , 218 P.3d at 703 (interpreting statute as it would be "rationally read").

      City of Valdez , 372 P.3d at 251 ; see also Mat-Su Valley Med. Ctr., LLC , 218 P.3d at 703-04 (interpreting statute based on what is grammatically correct, effect on enforcement, and most rational reading of statute).

      Boroughs in Alaska , Ballotpedia.org , https://ballotpedia.org/Boroughs_in_Alaska (last visited January 28, 2019); Matanuska-Susitna Borough, Incorporated City Parcel Maps , matsugov.us , https://www.matsugov.us/maps/incorporated-city-parcel-maps (last visited January 28, 2019) (Certain areas of Alaska have formed boroughs which act as political subdivisions of the state.).

      Alaska Driving Map , Alaska.org , http://www.alaska.org/assets/content/maps/Alaska-Driving-Map.pdf (last visited January 28, 2019).

      7 AAC 07.900(36) (emphasis added).

      See Ganz v. Alaska Airlines, Inc. , 963 P.2d 1015, 1018-19 (Alaska 1998) (assuming if legislature meant the same type of restriction in both subsections then it would have used similar language).

      7 AAC 07.900(36) (emphasis added).

      All of the following regulations use the term "service area": 7 AAC 07.010, 07.025, 07.032, 07.040, 07.042, 07.052, 07.070.

      See Minutes, House State Affairs Comm. Hearing on H.B. 297, 21st Leg., 1st Sess. (Mar. 16, 2000) (statement of Rep. Jeannette James, Chair, House State Affairs Comm.).

      See Alaska Ass'n of Naturopathic Physicians v. State, Dep't of Commerce , 414 P.3d 630, 634-35 (Alaska 2018) (noting that the party challenging a regulation bears the burden of showing it is inconsistent with the statute).

      See State v. Fyfe , 370 P.3d 1092, 1095 (Alaska 2016).

      Adamson v. Municipality of Anchorage , 333 P.3d 5, 11 (Alaska 2014).

      Minutes, House State Affairs Comm. Hearing on H.B. 297, 21st Leg., 1st Sess. (Mar. 16, 2000) (sponsor statement on H.B. 297).

      Id. (statement of Rep. Jeannette James, Chair, House State Affairs Comm.).

      Id.

      Id. (testimony of Rick Soley, Dir. of Community Relations & Planning, Fairbanks Mem'l Hosp. & Denali Ctr.).

      Id. (statement of Rep. Jeannette James, Chair, House State Affairs Comm.).

      Id.

      Id. (statement of Rep. Jeannette James, Chair, House State Affairs Comm.; testimony of Sharon Anderson, Alaska State Hosp. & Nursing Home Ass'n).

      City of Valdez v. State , 372 P.3d 240, 254 (Alaska 2016) (quoting Alaskans for a Common Language, Inc. v. Kritz , 170 P.3d 183, 193 (Alaska 2007) ).

      See id. at 254-55 ; N. Alaska Envtl. Ctr. v. State, Dep't of Nat. Res. , 2 P.3d 629, 634 (Alaska 2000).

      State of Alaska, Dep't of Health & Soc. Servs., Alaska Certificate of Need Review Standards and Methodologies 1 (2005), http://www.dhss.alaska.gov/dhcs/Documents/CertificateOfNeed/Standards.pdf.


author: BOLGER, Chief Justice.

text:
    Yvonne M. GAMBINI, Appellant, v. Perry W. HAMILTON, Appellee.
    Supreme Court No. S-16945
    Supreme Court of Alaska.
    March 29, 2019
    Yvonne M. Gambini, pro se, Wasilla, Appellant.
    Notice of nonparticipation filed by Kenneth J. Goldman, Kenneth J. Goldman, P.C., Palmer, for Appellee.
    Before: Bolger, Chief Justice, Winfree, Stowers, Maassen, and Carney, Justices.
   BOLGER, Chief Justice.

I. INTRODUCTION

Yvonne Gambini appeals the superior court's property division order for her divorce from Perry Hamilton. Gambini argues that she is entitled to more than half of the marital estate and that the superior court erroneously treated a loan she made to Hamilton prior to their marriage as a marital obligation. She also contends that the court incorrectly valued Hamilton's retirement account and that several of its procedural decisions unfairly prejudiced her or violated her rights. None of Gambini's claims amounts to reversible error. We therefore affirm the superior court's property division order.

II. FACTS AND PROCEEDINGS

Sometime in 2006 Gambini and Hamilton rekindled a relationship from decades prior. Hamilton was married to someone else at the time, though he was in the process of dissolving that marriage. As part of this process, he agreed to take on certain financial obligations on behalf of his then-wife. Hamilton and Gambini married on May 29, 2007.

About five months before they married, the couple took out a home equity line of credit (HELOC) for $50,000, secured by a cabin Gambini owned in Washington, where they were living at the time. At trial Gambini asserted that $37,000 of this first HELOC was a personal loan to Hamilton; she could not, however, remember "what [the $37,000] was actually spent on." Hamilton testified that Gambini offered to help him speed along his divorce proceedings by lending him some money from the HELOC on her cabin; Hamilton recalled using $14,000 of the HELOC funds to pay off debt associated with his previous marriage, but he was not certain how the rest was spent.

Gambini and Hamilton made interest payments on the HELOC from a joint bank account, but they never made any payments toward the principal. Approximately one year after their marriage, the couple amended the HELOC, taking out another $42,005.90 on the line of credit. This second HELOC disbursement helped fund the couple's move to Alaska and their purchase of two properties in the Matanuska-Susitna Borough: one on Hewitt Lake and one on Kim Drive.

Eventually the couple sold the Kim Drive property to Gambini's son. They used the proceeds from the sale to purchase two lots adjoining the Kim Drive property-the Barbi Drive lots-and to develop them for a residence. A loan on Hamilton's 401(k) also partially financed the purchase of the Barbi Drive lots.

Gambini and Hamilton contracted with Selway Corporation to finance the construction of a residence on the Barbi lots. The couple conveyed the lots to Selway, which used the property as security for a loan to finance construction of the residence; the couple would purchase the residence from Selway upon construction. Construction on the residence was near completion when the couple separated. At that time they modified the contract with Selway so Gambini became the sole buyer.

Gambini filed for divorce in August 2016. Her complaint recited the basic elements of a claim for divorce and included no specific claims as to the division of the marital estate. After Hamilton served his response, Gambini moved for leave to amend her complaint to add specific claims about the division of marital assets as well as contract and tort claims. The superior court denied this motion in December. In the course of discovery, Gambini also filed a "Motion to Determine the Sufficiency of Defendant's Objections and Answers to Plaintiff's Request for Admissions and to Deem Such Requests Admitted." The superior court did not rule on the motion before the case went to trial.

The parties filed trial briefs in May 2017, and a bench trial was held the next day. Hamilton appeared with counsel, and Gambini was unrepresented, although her brother, sister, and business partner were present.

Gambini and Hamilton were the only witnesses.

The superior court issued its findings of fact and conclusions of law in December. The court divided the marital estate roughly equally. It granted each party a parcel of real property; declared the Washington cabin Gambini's separate property but the HELOC taken out on it a marital obligation; and awarded Gambini half of the marital portion of Hamilton's 401(k), to account for his share of the HELOC assigned to Gambini. The court also noted its decision not to address Gambini's discovery motion prior to trial, declaring the motion now moot.

In December 2017 Hamilton filed a proposed Qualified Domestic Relations Order (QDRO) to govern the transfer of the portion of his 401(k) owed to Gambini. Gambini filed her appeal in January 2018, and Hamilton filed a notice of nonparticipation later that month. During the pendency of Gambini's appeal, she and Hamilton engaged in litigation over the QDRO.

III. DISCUSSION

On appeal Gambini argues that the superior court improperly classified two real-property parcels and the HELOC secured by her Washington cabin as marital. She also contends that the court abused its discretion in dividing the marital estate equally and that it incorrectly valued Hamilton's retirement account. She challenges the manner in which the trial court handled her divorce proceedings, arguing that it improperly prejudiced her in a variety of ways. And she challenges the QDRO issued after she filed her notice of appeal.

Upon reviewing Gambini's claims, we affirm the superior court's property division order. Although the court's reasoning with respect to classification of the HELOC as a marital investment was partially flawed, its ultimate conclusion was not clearly erroneous. And none of Gambini's other claims amount to reversible error.

A. The Superior Court's Classification Of Assets And Obligations Was Not Erroneous.

When making an equitable division of marital assets, the superior court must first determine "what specific property is available for distribution," which involves classifying assets as separate or marital. "The characterization of property as separate or marital may involve both legal and factual questions." "Findings of fact are reviewed for clear error, but whether the trial court applied the correct legal rule in exercising its discretion is a question of law that we review de novo using our independent judgment." "We will find clear error only if 'we are left with a definite and firm conviction on the entire record that a mistake has been made.' "

1. Classifying the entire HELOC as a marital obligation was not clear error.

Gambini argues that a portion of the HELOC was a personal loan to Hamilton, made prior to the marriage to assist Hamilton with expenses related to his previous marriage. She contends that the superior court erred by classifying such funds, used to finance the expenses of another marriage, as a marital obligation. The superior court considered Gambini's arguments and observed that she "provided no documents memorializing the loan and she did not seek repayment of the loan at any time during the parties' nine-year marriage." The court concluded that the HELOC in its entirety was a marital investment because it found that Gambini and Hamilton "intended [it] to be a means to finalize [Hamilton's] divorce so that they could begin their marriage."

The superior court's factual finding that no part of the HELOC constituted a personal loan to Hamilton was not clearly erroneous.

The court was correct that Gambini did not submit any documents identifying a subset of the HELOC funds as a loan to Hamilton, nor did she introduce evidence that she had ever sought repayment of the alleged loan. Moreover the evidence indicated that the funds at issue were spent on an indeterminate mix of joint and separate obligations and expenses. On this record, we are not left "with a definite and firm conviction" that the superior court made a mistake when it determined that no portion of the HELOC was a personal loan to Hamilton.

However whether the superior court properly characterized the entire HELOC as a marital obligation is a separate question. "As a general rule ..., property is separate property if it was acquired by a spouse before the marriage." But this rule is subject to some exceptions; for instance, a trial court may classify property or debt acquired prior to the marriage as marital if it finds that the parties intended it to become part of the marital estate. The superior court's "[u]nderlying findings as to the parties' intent are factual findings reviewed for clear error."

Here the HELOC on Gambini's cabin was issued to Gambini and Hamilton jointly before marriage, and the couple used the funds from the HELOC for joint expenditures, including their move to Alaska. It is thus clear that the initial HELOC was a joint premarital obligation assumed by Gambini and Hamilton. The superior court found that the couple intended this joint obligation to be marital because part of the initial $50,000 drawn from it paid off a debt Hamilton owed to his then-wife, thereby facilitating the dissolution of his marriage and permitting his subsequent marriage to Gambini. It later found that the "balance owing" on the HELOC "was a marital obligation because the funds were used by both parties."

The superior court's analysis of this issue is partially flawed. The couple's shared use of HELOC funds does not, by itself, demonstrate the necessary intent to include this joint premarital obligation in the marital estate. As we have previously noted, the intent to share property is distinct from the intent that that property be marital, subject to division in the event of a divorce. Thus it would be incorrect to infer, solely from the couple's use of HELOC funds to support their relationship, that Gambini and Hamilton intended their joint obligation to be part of the marital estate. However the record provides additional evidence of that intent. For example, the couple made postmarital payments on the HELOC from a joint account; they failed to document any separate debts within the HELOC; and they decided to "roll" the first, premarital HELOC withdrawal into a second, post-marital withdrawal. On this record we cannot conclude that the superior court committed clear error when it determined that the couple intended the HELOC to be a marital obligation.

And even if the superior court's classification were erroneous, the error would be harmless. Alaska Statute 25.24.160(a)(4) authorizes invasion of premarital holdings "when the balancing of the equities between the parties requires it." Having determined that the Washington cabin was Gambini's separate property, the superior court recognized that Gambini's possession of this asset would be threatened if Hamilton failed to pay his share of the joint obligation for which the cabin was security. The court's property division order thus offset an award of the entire HELOC to Gambini by awarding her a portion of Hamilton's 401(k) equal to one-half the HELOC's principal balance.

The superior court's decision to consider the HELOC with the marital property was clearly aimed at ensuring an equitable division between the parties. Therefore it would have been authorized by AS 25.24.160(a)(4), and not a clear abuse of discretion, even if the classification of the HELOC as a marital obligation had been erroneous.

2. The superior court properly classified real property purchased during the marriage as marital.

Gambini asserts that the superior court erred in failing to classify two real-property parcels purchased during the marriage, the Hewitt Lake and Barbi Drive properties, as her separate property. Gambini did not raise this issue at trial, so it is waived as an issue for appeal. But even if the issue were properly before us, Gambini's argument could not prevail since it relies on a mistaken understanding of the doctrine of tracing.

Assets acquired during the marriage are presumed to be marital. However, under the doctrine of tracing, assets acquired through a source other than marital income may qualify as separate property if their acquisition can be traced through the "exchange, appreciation, or income" of a separate-property asset. There are three primary types of separate property: "property acquired by one spouse before marriage, property acquired by gift, and property acquired by inheritance."

Both properties in question here were purchased during the marriage and are thus presumptively marital. Gambini contends that because the HELOC was secured by Gambini's separate property, her Washington cabin, the withdrawals on the HELOC are separate funds. Therefore, she argues, the real properties purchased with those funds should be separate as well. However credit obtained in the form of a secured transaction is not appreciation or income of the property that serves as collateral; the collateral simply facilitates the acquisition of credit. Thus the use of Gambini's separate property to secure the purchase loans for the two real-property parcels does not make those parcels her separate property.

B. Equitable Distribution Of The Marital Estate Was Not An Abuse Of Discretion.

The "superior court has broad discretion when dividing property in a divorce proceeding and we will not disturb [a] property division unless it is clearly unjust." In general we presume that an equal division of property is equitable. It is the burden of the party seeking a different arrangement to show that an equal division is unjust.

Gambini argues that evidence at trial showed Hamilton had unreasonably depleted the couple's marital assets through loans on his retirement account, transactions related to the couple's Kim and Barbi Drive properties, and the sale of a Toyota Tundra. For this reason, she asserts that equal division of the marital estate was an abuse of discretion. But there was a reasonable explanation for the loans taken out by Hamilton, as well as the financial dealings surrounding the Kim and Barbi Drive properties. Evidence supports the conclusion that the loans taken out on Hamilton's 401(k) during the marriage were for legitimate marital purposes, and no evidence, only Gambini's allegations, controverts this conclusion. With respect to the funds derived from the couple's sale of their Kim Drive home to Gambini's son, Gambini did not provide documentary evidence or testimony to contradict Hamilton's testimony that the proceeds were used for legitimate marital purposes. And she neither argued nor provided evidence supporting the claim that Hamilton had sold the couple's Toyota Tundra.

The record also supports the superior court's conclusion that Gambini and Hamilton reached a good faith agreement that the Barbi Drive property under construction at the time of the couple's divorce, along with the associated mortgage, would be Gambini's "separate post-separation asset and liability." The financial burdens incidental to Gambini's acquisition of the Barbi residence as her separate property are a logical consequence of this decision, not evidence of unreasonable marital asset depletion. It was not clear error for the superior court to find no evidence of unreasonable depletion of marital assets, and therefore no abuse of discretion to divide the marital estate equally.

C. There Was No Clear Error In The Superior Court's Valuation Of Hamilton's Retirement Account.

Retirement benefits earned during marriage are marital assets subject to equitable division. To calculate the marital portion of Hamilton's retirement account, the superior court subtracted the account value printed on an account statement from 2007, the time of Gambini's and Hamilton's marriage, from the value printed on a statement from the time of the couple's separation. Gambini contends that the superior court undervalued the marital portion of Hamilton's retirement account by focusing on the wrong year. She argues that a change in the account's administrator in 2010 means that a 2010 account statement, rather than the 2007 statement used by the court, provides the actual baseline value for the marital portion of the retirement account. But the change in administrator did not affect the validity of the trial court's use of a 2007 account statement; absent further evidence not present in the record, there is no reason to conclude that a change of administrator in 2010 somehow altered the starting value of the retirement account at the time of marriage in 2007. The trial court thus made no clear error in its valuation of Hamilton's retirement account.

D. The Superior Court's Handling Of The Divorce Proceedings Did Not Prejudice Gambini Or Violate Her Rights.

Gambini challenges the superior court's treatment of two pretrial motions, its failure to resolve the divorce case within six months of trial, and its treatment of her as an unrepresented litigant. However none of these claims provides grounds for reversal.

The superior court did not commit reversible error by denying Gambini's motion to amend her complaint or by tabling her discovery motion until trial. It was within the court's discretion to deny the addition of the contract and tort claims for which Gambini sought leave to amend her complaint, as it was not manifestly unreasonable for the court to determine that they were non-divorce causes of action more properly decided in a subsequent case at law than in an equitable divorce proceeding. And Gambini was not prejudiced by the court's denial of her request to add specific claims regarding distribution of the marital estate since she had the opportunity to raise these claims at trial. Likewise she was not prejudiced by the court's decision to leave her discovery motion pending at the time of trial and then dismiss it as moot. The arguments in her discovery motion raised questions of fact that could be more efficiently explored at trial than in a pretrial proceeding. Therefore neither procedure constituted reversible error.

The superior court's failure to resolve Gambini's divorce case within six months of trial does not affect the validity of the judgment either. As Gambini points out, AS 22.10.190(b) declares that superior court judges may not be issued salaries unless they submit an affidavit assuring that all matters referred to them have been completed or decided within six months. But in Hertz v. Hertz we held that this statute is not directly enforceable by private citizens. This forecloses Gambini's effort, as a private citizen, to enforce the statute. And even if the statute were privately enforceable, Gambini's failure to show how the delay influenced the court's decision would prevent us from reversing on this ground.

Finally the superior court did not violate Gambini's right to due process or freedom of expression by the way it handled the case and treated her as an unrepresented litigant. Gambini's assertion that the trial court prevented her from presenting her case in the manner she intended is not borne out in the record: the court allowed her to use her notes consistent with the court rules and gave her the opportunity to call witnesses. And the record does not indicate that the court was impermissibly biased toward Hamilton's counsel; the court's questioning of Gambini evidences its effort to obtain relevant testimony, not to act as a cross-examiner for the defense. Gambini was not clearly deprived of any right to cross-examine an adverse witness; she never asked to cross-examine Hamilton, and she raised no objection on the record that she had not been afforded the opportunity to do so. Lastly the court's restriction on Gambini's ability to talk with her brother and sister at counsel table during the proceedings was well within the court's authority over the kind of speech that is permitted to occur at trial. There was no constitutional violation in any of these actions by the superior court.

E. We Retain Jurisdiction Over Gambini's QDRO Claims.

Finally, Gambini takes issue with the substance and process of the QDRO issued to transfer half of the marital portion of Hamilton's pension fund to Gambini. But we cannot decide her claims regarding the QDRO because the order she disputes and its related filings are not in the record. We will thus issue additional orders to supplement the record and allow the parties to brief the claims related to the QDRO on the expanded record.

IV. CONCLUSION

For the reasons stated, we AFFIRM the superior court's property division order. And we retain jurisdiction of the QDRO issue so that the parties may supplement the record and provide additional briefing.

      Stanhope v. Stanhope , 306 P.3d 1282, 1286 (Alaska 2013).

      Odom v. Odom , 141 P.3d 324, 330 (Alaska 2006).

      Beals v. Beals , 303 P.3d 453, 459 (Alaska 2013).

      Tomal v. Anderson , 426 P.3d 915, 923 n.8 (Alaska 2018) (quoting Wood v. Collins , 812 P.2d 951, 954 n.2 (Alaska 1991) ).

      Smith v. Weekley , 73 P.3d 1219, 1222 (Alaska 2003) (quoting Duffus v. Duffus , 932 P.2d 777, 779 (Alaska 1997) ) (describing our standard of review for clear error).

      Kessler v. Kessler , 411 P.3d 616, 618 (Alaska 2018) ; see also Wagner v. Wagner , 386 P.3d 1249, 1252 (Alaska 2017) ("Generally, a spouse is not liable for the other spouse's premarital debts or liabilities."); AS 25.15.050 ("[N]either spouse is liable for the debts or liabilities of the other incurred before marriage, and ... neither is liable for the separate debts of the other.").

      See Kessler , 411 P.3d at 618 ; see also Murray v. Murray , 788 P.2d 41, 42 (Alaska 1990) ("We note that property acquired by the Murrays as a couple may be marital property even if the acquisition predates the marriage.").

      Carlson v. Carlson , 722 P.2d 222, 224 (Alaska 1986) (affirming the classification of real property acquired "shortly before the parties' marriage" as marital because the prospective wife "had power of attorney to sign the purchase papers and title was taken jointly"); cf . Kessler , 411 P.3d at 618-620 (explaining that, for separate property to transmute into marital property, "the intent that must be shown is the intent of the owning spouse that his or her separate property be treated as marital property for the purpose of dividing property in the event of a divorce " (emphasis in original)). We generally treat debt similarly to property when categorizing it as marital or nonmarital. See, e.g. , Coffland v. Coffland , 4 P.3d 317, 321 (Alaska 2000).

      Tomal , 426 P.3d at 923 ; see also Beals v. Beals , 303 P.3d 453, 459 (Alaska 2013).

      See Kessler , 411 P.3d at 619 (discussing transmutation).

      "[N]o error ... in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order, unless refusal to take such action appears ... inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties." Alaska R. Civ. P. 61.

      Carlson , 722 P.2d at 224 (stating that separate premarital property "should not have been deemed a marital asset available for division unless the court specifically found that a 'balancing of the equities between the parties' required invasion of the premarital holding" (quoting AS 25.24.160(a)(4) )).

      See Bandow v. Bandow , 794 P.2d 1346, 1347 n.3 (Alaska 1990) ("Whether or not the equities require invasion of premarital assets ... lies within the broad discretion of the trial court and will not be overturned absent a clear abuse of discretion." (quoting Julsen v. Julsen , 741 P.2d 642, 646 n.4 (Alaska 1987) )).

      Gambini extends the same argument to the Kim Drive property and the proceeds derived from its sale. But the superior court did not address the Kim Drive property in its property division order. The couple purchased this property with HELOC funds during their marriage, sold it, and put the proceeds towards the purchase of the Barbi Drive property. Our analysis of the Barbi Drive property thus applies equally to the Kim Drive property.

      Wells v. Barile , 358 P.3d 583, 589 n.17 (Alaska 2015).

      As with Gambini's claim disputing the superior court's classification of the HELOC as a marital obligation, the superior court's application of the legal principles governing property classification is at issue, so we review its decision de novo. See Beals v. Beals , 303 P.3d 453, 459 (Alaska 2013).

      See, e.g. , Coffland v. Coffland , 4 P.3d 317, 321 (Alaska 2000) ("We presume that property acquired during the marriage is marital."); cf. Stanhope v. Stanhope , 306 P.3d 1282, 1290 (Alaska 2013) ("[T]here is a presumption that debts incurred during [the] marriage are marital.").

      Schmitz v. Schmitz , 88 P.3d 1116, 1127 (Alaska 2004).

      Id .

      Coffland , 4 P.3d at 321.

      Elliott v. James , 977 P.2d 727, 730 (Alaska 1999).

      Day v. Williams , 285 P.3d 256, 261 (Alaska 2012).

      Id.

      See AS 25.24.160(a)(4)(E) (providing as one factor for a superior court's fair allocation of the economic effect of divorce in its property division "the conduct of the parties, including whether there has been unreasonable depletion of marital assets"). "The elements of unreasonable depletion are '(1) use of personal property for the spouse's own benefit, (2) at a time when the marriage is breaking down (either before or after separation), (3) with an intent to deprive the other spouse of the other's share of the marital property.' Not all of the identified elements need to be present in each case." Elliott , 977 P.2d at 733 (quoting Jones v. Jones , 942 P.2d 1133, 1140 (Alaska 1997) ).

      "[F]actual findings of the trial court are reviewed for clear error"; we find clear error, where, after a thorough review of the record and viewing the evidence in the light most favorable to the trial court's rulings, we reach a definite and firm conviction that a mistake has been made. Rausch v. Devine , 80 P.3d 733, 737 (Alaska 2003).

      Edelman v. Edelman , 3 P.3d 348, 356 (Alaska 2000).

      Valuation of assets is a factual determination, which we review for clear error. Beals v. Beals , 303 P.3d 453, 459 (Alaska 2013).

      Gambini also claims that the loans on Hamilton's 401(k) should be added to its value. But taking out a loan on a pension account does not increase that pension account's value by the amount of loan.

      "We review the denial of leave to amend for abuse of discretion." Valdez Fisheries Dev. Ass'n v. Alyeska Pipeline Serv. Co. , 45 P.3d 657, 671 (Alaska 2002).

      Nelson v. Jones , 787 P.2d 1031, 1034 (Alaska 1990) (explaining that it is not necessary "to require tort actions between married persons to be litigated in the divorce proceeding"). Gambini's proposed contract and tort claims were based on Hamilton's withdrawal from involvement in construction of the Barbi Drive residence.

      See Breck v. Ulmer , 745 P.2d 66, 74 (Alaska 1987) (stating that the appellant "must show prejudicial error" to succeed on appeal; that is, "that the error ... had 'substantial influence' on the outcome of the case" (quoting Loof v. Sanders , 686 P.2d 1205, 1209 (Alaska 1984) )).

      847 P.2d 71, 75 (Alaska 1993).

      See Breck , 745 P.2d at 74.

      Moreover the federal right to cross-examine an adverse witness, flowing from the Sixth Amendment as applied to the states through the Fourteenth Amendment, applies only to criminal defendants - not civil plaintiffs like Gambini. See U.S. Const. Amend. VI ("In all criminal prosecutions , the accused shall enjoy the right ... to be confronted with the witnesses against him." (emphasis added)); Davis v. Alaska , 415 U.S. 308, 315, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974) (stating that the rights conferred by the confrontation clause is secured for defendants in state proceedings under Pointer v. Texas , 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965) ). And although the federal courts urge that a "special solicitude" be afforded to unrepresented litigants, this is a prudential policy rather than a constitutional mandate. Tracy v. Freshwater , 623 F.3d 90, 101-03 (2d Cir. 2010). So the trial court's failure to ask Gambini if she would like to cross-examine Hamilton cannot constitute a due-process violation.

      See Mezibov v. Allen , 411 F.3d 712, 718 (6th Cir. 2005) (stating that the courtroom is a forum in which "the First Amendment rights of everyone ... are at their constitutional nadir").