text:
    Glenn Wayman SORENSEN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    No. 99-96.
    Supreme Court of Wyoming.
    June 16, 2000.

      Representing Appellant: Sylvia Lee Hack], Public Defender; Donna D. Domon-kos, Appellate Counsel; and Tina N. Hughes, Assistant Appellate Counsel. Argument by Ms. Hughes.
    Representing Appellee: Gay Woodhouse, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Theodore E. Lauer, Director, Prosecution Assistance Program; and Darin D. Smith, Student Intern. Argument by Mr. Smith.
    'Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN, and HILL, JJ.

       Retired June 2, 2000.

   LEHMAN, Chief Justice.

A Hot Springs County jury found (Henn Wayman Sorensen guilty of one count of first degree sexual assault. Claiming he was denied effective assistance of counsel, he appeals. We affirm.

ISSUES

Sorensen presents the following issues for review:

1. Did trial counsel provide ineffective assistance of counsel in the process of jury selection, when he failed to (a) adequately question the panel; (b) object to or have removed. a juror who could not hear the evidence; and (c) make an objection or an adequate record for appeal concerning the apparently deliberate exclusion of male jurors, resulting in violation of Appellant's right to due process and equal protection?
2. Did trial counsel provide ineffective assistance of counsel in that he had a conflict of interest from having previously represented the alleged victim on drug charges?
8. Did trial counsel provide ineffective assistance of counsel in his failure to adequately cross-examine the victim of the sexual assault?

FACTS

Sorensen was charged with one count of first degree sexual assault and tried before a jury on May 14 and 15, 1998. That trial resulted in a mistrial, and the State subsequently filed a Notice of Intention to Retry Jury Trial. Sorensen was tried again, where the following evidence was produced.

On November 19, 1997, Sorensen telephoned the victim, a Thermopolis resident, and invited her to come to his trailer house in Kirby and "party" with him. The victim and Sorensen had partied on several prior occasions. Their "partying" consisted of drinking and doing illegal drugs. After stopping at a liquor store to purchased a bottle of wine, the victim ventured to Sorensen's home. Upon arriving around 9:80 or 10 p.m., the victim noticed Sorensen had been drinking heavily, and an empty whiskey bottle and empty beer cans cluttered the floor.

The victim testified that, after some time spent drinking, Sorensen pulled out a rusty knife and ordered her to take off her clothes, claiming she "owed him." sumed Sorensen meant she owed him for illegal drugs he had given her in the past for which she had not paid. The victim pleaded with Sorensen not to hurt her and to let her go home, but she proceeded to undress after he hit her on the head. The victim testified that Sorensen then preformed oral sex on her against her will. Sorensen then ordered the victim to preform oral sex on him. The victim asserted that, during the course of the sexual contact, Sorensen was repeatedly hitting her on the head with a closed fist any time she resisted. After Sorensen was unable to become aroused, the victim donned her jacket and shoes, grabbed the rest of her clothes, and left the house sometime between 1:80 and 2:00 am. The victim stated she drove home without her eye glasses because Sorensen would not give them back to her. The victim pre-.

Friday, November 21, 1997, the victim reported the incident to law enforcement. Later that day, she sought medical treatment for bruising on her hands, face and shins; swelling across the bridge of her nose; and abrasions on her neck. She was given pain killers and muscle relaxers, but no further medical treatment was required beyond an "as needed" basis.

Sorensen testified in his defense. Although he admitted slapping the victim, he claimed he did not strike her until after he failed to become aroused. Thus, it was his theory at trial that, although he may have battered the victim, the incident did not amount to a forcible sexual assault because any battery that occurred did not occur until after the sexual acts were completed. Soren-sen also denied threatening the victim with a knife.

After deliberations, the jury found Soren-sen guilty of one count of first degree sexual assault Judgment and sentence was entered accordingly. This timely appeal followed.

DISCUSSION

Sorensen's claims of error all revolve upon his claim that counsel was ineffective. The law and standards of ineffective assistance of counsel as set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984) were adopted by this court in Frias v. State, 722 P.2d 185, 145 (Wyo.1986) and articulated in Jackson v. State, 902 P.2d 1292, 1295 (Wyo. 1995):

When reviewing a claim of ineffective assistance of counsel, the paramount determination is whether, in light of all the circumstances, trial counsel's acts or omissions were outside the wide range of professionally competent assistance. Herdt v. State, 891 P.2d 798, 796 (Wyo0.1995); Starr v. State, 888 P.2d 1262, 1266-67 (Wyo. 1995); Arner v. State, 872 P.2d 100, 104 (Wyo.1994); Frias v. State, 722 P.2d 185, 145 (Wyo.1986). The reviewing court should indulge a strong presumption that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable judgment. Herdt, at 796; Starr, at 1266; Arner, at 104; Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065, 80 LEd.2d 674 (1984).
Under the two-prong standard articulated in Strickland and Frias, an appellant claiming ineffective assistance of counsel must demonstrate on the record that counsel's performance was deficient and that prejudice resulted. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; Starr, at 1266; King v. State, 810 P.2d 119, 125 (Wyo.1991) (Cardine, J., dissenting); Campbell v. State, 728 P.2d 628, 629 (Wyo0.1986); Frias, 722 P.2d at 145. In other words, to warrant reversal on a claim of ineffective assistance of counsel, an appellant must demonstrate that his counsel failed to "render such assistance as would have been offered by a reasonably competent attorney" and that "counsel's deficiency prejudiced the defense of [the] case." Lower v. State, T86 P.2d 346, 349 (Wyo.1990).

The burden of proving that counsel was ineffective rests on the defendant, who must overcome a “strong presumption that counsel rendered adequate and reasonable assistance making all decisions within the bounds of reasonable professional judgment.” Gist v. State, 737 P.2d 336, 342 (Wyo.1987) (citing Strickland, supra); Dickeson v. State, 843 P.2d 606, 609 (Wyo.1992). For assistance of counsel to be deemed deficient, the defendant must show “counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Dickeson, 843 P.2d at 609 (quoting Strickland, supra). Prejudice to the defense can be shown by demonstrating “counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. “Unless a defendant makes both showings, it cannot be said that the conviction ... resulted from a breakdown in the adversary process that renders the result unreliable.” Id.

Voir dire

Although Sorensen claims his trial counsel did not adequately question prospective jurors during the voir dire process, nothing leads us to believe trial counsel’s questioning was outside the wide range of professionally competent assistance. The purpose of voir dire “is to seek to establish grounds for challenge for cause; assess any individual bias as to each member of the panel; and to arrive at a determination of the potential jurors’ ability to decide a case fairly.” Vit v. State, 909 P.2d 953, 960 (Wyo. 1996). Because voir dire questioning techniques are diverse, any inadequacy in voir dire questioning must be egregious and obvious to fall below the line of competence. Amer v. State, 872 P.2d 100, 105 (Wyo.1994). In performing our review for ineffectiveness, this court does “not evaluate the efforts of counsel from a perspective of hindsight but, rather, we endeavor to reconstruct the circumstances surrounding counsel’s challenged conduct and evaluate the professional efforts from the perspective of counsel at the time.” Dickeson, 843 P.2d at 609 (citing Stnckland, supra); Amer v. State, 872 P.2d at 104.

In voir dire, the district court instructed the attorneys to avoid asking questions of individual jurors that could be asked of the panel, not to repeat questions that had been asked by opposing counsél, and not to argue the law or the facts during jury selection. See W.R.Cr.P. 24(c). The prosecutor was given the first opportunity to examine for cause, and defense counsel was allowed to interject questions in the process. Soren-sen’s trial counsel took advantage of this opportunity several times, especially during individual voir dire in chambers. When the prosecutor completed his examination for cause, defense counsel was permitted to examine for cause.

Obviously, trial counsel could have asked more questions during voir dire. However, both attorneys were to avoid repeating questions that had already been asked. In addition, defense counsel’s questioning followed the prosecutor’s thorough examination for cause. Viewing counsel’s performance from this perspective, we find nothing improper in his questioning of the panel. As for Sorensen’s complaints that defense counsel should have endeavored to remove a number of jurors who eventually sat on the jury, it must be remembered that “[v]oir dire and the exercise of challenging jurors is trial strategy.” Amer v. State, 872 P.2d at 105. From our review of the record, Sorensen has not shown any error that was so egregious and obvious as to fall below the line of competence.

Hearing-impaired juror

Sorensen further complains that trial counsel’s failure to secure removal of a hearing-impaired juror evinced ineffective assistance of counsel. During voir dire, the prosecutor asked whether any prospective juror had a mental or physical infirmity that would make it impossible for them to act as a • juror. A prospective juror, who was eventually selected to serve on the petit jury, alerted the court that he had a “terrible timé hearing.” The juror was then asked if there was anything the court could do to make it easier for him to hear, and he agreed to raise his hand to alert the court if he was unable to hear something.

When seeking reversal based on the inability of a juror to hear evidence, a defendant must demonstrate prejudice, ie., that the juror failed to hear material parts of the trial. Belondon v. City of Casper, 456 P.2d 238, 242 (Wyo.1969). The juror in this case did alert the court and counsel to his difficulty in hearing. However, reasonable accommodations were made for him to signal the court in the event he was unable to hear the evidence. Nothing in the record indicates the juror ever raised his hand during trial to alert the court that he was unable to hear witnesses, attorneys, or the court. In addition, the record reflects the prosecutor informed two of his witnesses (the victim and the victim's father) that a juror was hard of hearing and requested that the witnesses "speak up." Nothing in the record leads this court to conclude the juror was unable to hear the evidence, and Sorensen therefore has not demonstrated prejudice. Counsel cannot be deemed ineffective on this ground.

Juror Exclusion

We also reject the claim that counsel was ineffective because he did not object or make an adequate record for appeal concerning the alleged deliberate exclusion of male jurors from the jury panel. Sorensen is correct that the record does not reveal how the parties exercised their allotted nine peremptory challenges. See W.R.Cr.P. 24(d)(1) and (e). After questioning by the attorneys and numerous for-cause removals, a panel of 31 potential jurors was passed for cause, 22 women and nine men. Each side then exercised their nine peremptory challenges, leaving a jury of 12 and one alternate. Because these 18 jurors consisted of 12 women and one man, it follows that ten women and eight men were removed by peremptory challenge. As finally composed, the jury consisted of 11 women and one man. Because of these numbers, it is Sorensen's theory that males were systematically exeluded from the jury.

It is well established that the Equal Protection Clause forbids the use of peremptory challenges to exclude jurors solely on the basis of their race or gender. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); J.E.B. v. Alabama ex rel. T. B., 511 U.S. 127, 114 S.Ct. 1419, 128 LEd.2d 89 (1994); v. State, 724 P.2d 1182, 1184 (Wyo.1986); Espi-moza v. State, 969 P.2d 542, 547 (Wyo.1998); Beartusk v. State, 6 P.3d 188, 142 (Wyo. 2000). "The very idea of a jury is a body . .. composed of the peers or equals of the person whose rights it is selected or summoned to determine; that is, of his neighbors, fellows, associates, persons having the same legal status in society as that which he holds." Batson, 4176 U.S. at 86, 106 S.Ct. at 1717 (quoting Strauder v. West Virginia, 100 U.S. 308, 308, 10 Otto 8083, 25 L.Ed. 664 (1879)).

Sorensen complains that, because the record is silent as to which side challenged which prospective jurors, defense counsel was guilty of ineffective assistance of counsel. We reject this claim for two reasons. First, numerous courts have employed the rule that, if a Batson/J.E.B. claim is not made in a timely fashion, usually before the venire is dismissed, the claim is deemed to be waived. U.S. v. Romero-Reyna, 867 F.2d 834, 837 (5th Cir.1989) ("We hold that to be timely, the Batson objection must be made before the venire is dismissed and before the trial commences."); U.S. v. Biaggi, 909 F.2d 662, 679 (2nd Cir.1990) (acknowledging the "need to resolve a Batson claim at the point where prompt corrective action can be taken"); U.S. v. Abou-Kassem, 78 F.3d 161, 167 (5th Cir.1996); U.S. v. Maseratti, 1 F.3d 380, 835 (5th Cir.1998); U.S. v. Erwin, 798 F.2d 656, 667 (5th Cir.1986); State v. Wilson, 117 NM. 11, 868 P.2d 656, 661 (App.1998) (collecting cases); People v. Mendoza, 876 P.2d 98, 102 (Colo.App.1994); Foster v. State, 548 So.2d 475, 477 (Ala.Crim.App.1987).

In addition, even if the record did reveal how the peremptory challenges were exercised, this court would be hard pressed to find ineffectiveness based on a failure to object to the potential discriminatory exclusion of jurors by gender. In State v. Wilson, 868 P.2d at 663-64, the New Mexico Court of Appeals rejected an ineffective assistance of counsel claim based on failure to make a Batson challenge. In doing so, the court was unwilling to second guess defense counsel:

defense counsel might have had reasons related to Defendant's theory of the case for not opposing the prosecutor's use of the State's peremptory challenges.... Alternatively, counsel originally might have been satisfied that the final jury selected was a fair cross-section of the community and that Defendant's chances for an acquittal would not improve with any changes and might instead lessen.

Id. at 663. We agree with this reasoning. It reflects great deference to trial counsel, who had an eyewitness view of the venire, in deciding to make, or refrain from making, a Batson/J.E.B. challenge. This reasoning also falls in line with this court's statement that voir dire and the exercise of challenging jurors is trial strategy. Arner v. State, 872 P.2d at 105. We find no ineffectiveness on this ground.

Conflict of interest

Finally, we address Sorensen's contention that his trial counsel was laboring under a conflict of interest. In a letter attached to one of Sorensen's motions before this court, Sorensen's trial counsel states he previously represented the victim, approximately a year before the sexual interlude giving rise to this case, on charges of driving while under the influence and possession of marijuana and methamphetamine.

Where, as here, a' constitutional right to counsel exists, there is a correlative right to representation that is free from conflicts of interest. Wood v. Georgia, 450 U.S. 261, 271, 101 S.Ct. 1097, 1108, 67 L.Ed.2d 220 (1981); Cuyler v. Sullivan, 446 U.S. 885, 345-50, 100 S.Ct. 1708, 1716-19, 64 L.Ed.2d 833 (1980); Holloway v. Arkansas, 435 U.S. 475, 490, 98 S.Ct. 1178, 1181-82, 55 L.Ed.2d 426 (1978); Shongutsie v. State, 827 P.2d 361, 364 (Wyo.1992). assistance claims involving conflicts of interest, this court has examined two general seenarios. The first involves instances where a defense attorney undertakes the joint representation of criminal defendants. For those instances we have "articulate[d} the rule that prejudice will be presumed in all instances of multiple representation of criminal defendants and, in the absence of an appropriate waiver, multiple representation will constitute reversible error." Shonguisie v. State, 827 P.2d 361, 367 (Wyo.1992); Ken-mey v. State, 8837 P2d 664, 672-16 (Wyo. In addressing ineffective: 1992); Calene v. State, 846 P.2d 679, 687-88 (Wyo.1993); see also W.R.Cr.P. 44(c).

The second scenario, the one present in this case, involves the former representation of a witness coupled with current representation of a defendant. The only case from this court addressing the issue is King v. State, 810 P.2d 119, 123-24 (Wyo.1991). In that case, King's former paramour, Thompson, was charged with delivery of a controlled substance. While Thompson was in jail, an attorney came to represent her and arranged to get her out of jail and into a hospital for substance abuse treatment. Two other attorneys then handled Thompson's felony charges. In negotiating a plea agreement, Thompson agreed to participate in a sting operation targeting King and to testify against him. At trial, King was represented by the same attorney who arranged to get Thompson out of jail and into treatment. King, aware of his attorney's prior representation of Thompson, objected to this representation and asked the trial court to appoint a new defense attorney. The district court refused, and King was convicted. 810 P.2d at 120-21. This court reversed King's conviction. In addition to concluding that King's counsel was ineffective in failing to interview or secure the testimony of two potential eyewitnesses, this court also concluded the district court abused its discretion in failing to evaluate "King's claim and put into the record the reasons for rejecting King's claim for ineffectiveness of counsel based upon a conflict of interest." 810 P.2d at 124.

On the conflict of interest issue, the King court wrote:

Strickland, 466 U.S. at 692, 104 S.Ct. at 2067 indicated the continuing vitality of the conflict of interest standard formulated in Cuyler, 446 U.S. at 345-50, 100 S.Ct. at 1716-19. Under that standard, a defendant who raised no objection at trial must show that an actual conflict of interest adversely affected his lawyer's performance before prejudice is presumed.
To demonstrate a conflict of interest, the appellant may "demonstrate that some plausible alternative defense strategy or tactic might have been pursued ... [and] establish that the alternative defense was inherently in conflict with the attorney's other loyalties or interests." Brien v. United States, 695 F.2d 10, 15 (Ist Cir. 1982).
To demonstrate an adverse effect, the "defendant would only have to show that his attorney's conflict reduced his effectiveness." [State v.] Jenkins, [148 Ariz. 468] 715 P.2d [716,] 720 [ (Ariz.1986) ]. "[Ald-verse effect is a less burdensome requirement than prejudice." Id.

King v. State, 810 P.2d at 1283.

The King court also discussed how an actual conflict of interest may arise in a case of former representation. The court summarized King's attorney's dilemma:

[Whhile we do not know if his representation of King would necessarily be materially limited by his responsibilities with Thompson, "(there is a presumption that an attorney receives confidential communications in the course of his representation of a client." United States v. Shepard, 675 F.2d 977, 980 (8th Cir.1982). Because "the attorney may misuse confidential information obtained from the former client, or may fail to fully cross-exarine for fear of misusing confidential information," id. at 979, the reliability of the adversarial process cannot be confidently relied upon.

810 P.2d at 124. In addition, the court noted that both the witness, as a former client, and defendant have interests at stake, and two rules of professional conduct may be implicated, Rules 1.7 and 1.9. 810 P.2d at 128. However, it must be kept in mind that "breach of an ethical standard does not nee-essarily make out a denial of the Sixth Amendment guarantee of assistance of counsel." Nix v. Whiteside, 4745 U.S. 157, 165, 106 S.Ct. 988, 998, 89 LEd.2d 123 (1986); U.S. v. Gallegos, 39 F.3d 276, 279 (10th Cir. 1994). Instead, the question is whether counsel was laboring under an actual conflict of interest that adversely affected counsel's performance.

Relying on King, Sorensen contends that his conviction should be reversed and the case remanded for a new trial However, reversal of a conviction is not necessarily the appropriate remedy, and a careful analysis of King illustrates this point. In King, in addition to concluding the district court abused its discretion by failing to evaluate King's claim of a conflict of interest, this court also concluded that King's counsel was ineffective in failing to interview or secure the testimony of two potential eyewitnesses. King, 810 P.2d at 122-28. Because the King court made this second conclusion, it was not faced with the question of what the appropriate remedy would be if only the conflict of interest issue existed. In his King dissent, Justice Cardine argued, relying on Wood v. Georgia, 450 U.S. 261, 101 S.Ct. 1097, 1104, 67 L.Ed.2d 220 (1981), that the appropriate remedy on the conflict of interest issue was a remand for development of a record. 810 P.2d at 125-26. In this case, because we find no merit in Sorensen's other claims of ineffectiveness, we must determine the appropriate remedy where there exists the potential for an actual conflict of interest.

In Wood v. Georgia, the United State Supreme Court remanded to the trial court for an evidentiary hearing to determine if counsel was laboring under an impermissible conflict of interest. 450 U.S. at 278-74, 101 S.Ct. at 1104. The conflict in Wood arose from a third party payor situation in which Wood and two other defendants were represented by the same attorney, and this legal assistance was provided by their employer. The three defendants were convicted of distributing obscene materials and sentenced to periods of probation on the condition they make regular installment payments toward the satisfaction of substantial fines. The defendants failed to make payments, and probation officers moved for revocation of their probations. hearings, the defendants stated they had expected their employer to pay their fines for them. The defendants' probations were then revoked. 450 U.S. at 262-64, 101 S.Ct. at 1099-1100. At their probation revocation:

The potential for a conflict of interest in Wood arose because the record strongly suggested that the employer was attempting to - develop a test case to establish that "adult" establishments may be able to avoid the burden of paying fines imposed on its employees when the employees are arrested conducting business. "To obtain such a ruling, however, it was necessary for [defendants] to receive fines that were beyond their own means and then risk jail by failing to pay." 450 U.S at 267, 101 S.Ct. at 1101. Indications of this apparent conflict were found at various stages. At sentencing, defendants raised no protest about the size of their fines. The defendants subsequently failed to pay even small amounts toward their fines, apparently believing the employer would pay. At the probation revocation hearing, no argument was made to modify the conditions of probation. The Supreme Court thus concluded, "if [defendants'] counsel was serving the employer's interest in setting a precedent, this conflict in goals may well have influenced the decision of the trial court to impose such large fines, as well as the decisions to revoke [defendants'] probations rather than to modify the conditions." 450 U.S. at 268, 101 S.Ct. at 1102. Because of this possibility for a conflict of interest, the Wood court concluded that a remand for an evidentiary hearing was required. The Court instructed that the trial court

hold a hearing to determine whether the conflict of interest that this record strongly suggests actually existed at the time of the probation revocation or earlier. If the court finds that an actual conflict of interest existed at that time, and that there was no valid waiver of the right to independent counsel, it must hold a new revocation hearing that is untainted by a legal representative serving conflicting interests.

450 U.S. at 274, 101 S.Ct. at 1104.

In U.S. v. Winkle, 722 F.2d 605, 611-12 (10th Cir.1983), the United States Court of Appeals for the Tenth Circuit discussed a potential conflict of interest more closely analogous to Sorensen's claim. In that case, Winkle's attorney, Thompson, had previously represented a government witness, undercover agent Cox. During cross-examination of Cox, Thompson asked whether Cox had ever borrowed money from Winkle, which Cox denied. Thompson then approached the bench and informed the court he had personal knowledge Cox had borrowed $350 from Winkle to pay Thompson his fee. This testimony would have helped support Winkle's position that Cox did not pay Winkle $400 for drugs, but as a repayment on loans. The trial judge acknowledged that Thompson was "getting close to some kind of conflict" and, upon the government's request, instructed Thompson to drop the line of questioning. On appeal, the Tenth Cireuit Court of Appeals vacated the judgment and remanded for a hearing, in accordance with Wood v. Georgia, "to determine whether the conflict of interests, which the record strongly suggests, actually existed and adversely affected defense counsel's performance at the time of trial." 722 F.2d at 611-12.

Comparing Sorensen's case to Wood and Winkle, we conclude Sorensen is not entitled to a remand for an evidentiary hearing. See also U.S. v. Alvares, 137 F.3d 1249, 1252 (10th Cir.1998); U.S. v. Bowen, 788 F.Supp. 528, 530 (D.Kan.1992) ("a hearing is not warranted because defendant has not presented allegations which, if proven, would amount to a conflict of interest"). In both those cases, a conflict of interest adversely affecting the defendant's representation was "strongly suggested" by the record. Here, the record does not strongly, or even remotely, suggest that any confidential information derived from counsel's representation of the victim prevented counsel from fully cross-examining the victim. Although Sorensen makes a myriad of complaints asserting that counsel was ineffective in cross-examining the victim, neither these arguments nor the record suggests that Sorensen's counsel was hobbled in his cross-examination of the victim. A closer look at Sorensen's claims regarding the cross-examination bears this out.

In his initial brief, Sorensen argues trial counsel "failed to ask [the victim] as to why, if she was feeling threatened, she did not flee while he was removing his clothes. Appellant was a large man at the time, approximately 380 pounds and it is difficult to imagine how the much smaller alleged victim could not have vacated the premises at that point." In addition to being highly speculative, this argument fails to recognize that any questioning on this point may have only served to emphasize the victim's fear as well as her testimony that she had been ordered to remove her clothes at knife point. As such, it clearly evinces a tactical decision on the part of defense counsel. More importantly, this claim in no way suggests that counsel's alleged failure to cross-examine adequately was the result of some ethical dilemma, i.e., that the information was related to confidences reposed in counsel by the victim.

Next, Sorensen complains trial counsel should have explored the victim's assertion that Sorensen asked her to be a prostitute, with Sorensen acting as her pimp. This testimony was elicited by the prosecutor and is not particularly helpful, and probably extremely damaging, to Sorensen. Thus, it appears to be a tactical decision on the part of defense counsel to avoid highlighting this testimony for the jury. Again, more importantly, nothing indicates this testimony involves a confidential matter relating to counsel's prior representation of the victim.

Finally, Sorensen contends that counsel should have asked why the victim did not leave when, upon her arrival at Soren-sen's home, she noticed Sorensen was intoxicated. Again, this only pertains to the facts of the crime, and no confidential matters between the attorney and the victim are implicated.

We turn to Sorensen's reply brief. There, Sorensen lists questions he believes should have been asked of the victim. These questions generally concern the victim's problems with truthfulness, her addiction to prescription drugs, and her difficulty in deciphering right from wrong. Prior to the vie-tim testifying, each of these topics was explored during the testimony of the victim's father, the first witness called in this case. Although Sorensen argues these areas should have been explored on cross examination of the victim, he acknowledges that such exploration may have been fruitless. His reply brief provides: "At best, [the vietim] would have conceded at least some of these points; at worst, she would have denied everything, and trial counsel should then have comprehensively pointed out her denials and the contradictions in testimony during closing." Again, this observation only serves to underscore that this was a tactical decision on the part of defense counsel. By not cross-examining the victim on these points, defense counsel, in closing argument, could rely on the uncontradicted testimony of the father to impugn the victim's credibility. Closing argument reveals that defense counsel did just that, relying heavily on the father's testimony in denigrating the victim's credibility. We cannot second guess this tactical decision. More importantly, as it pertains to the conflict of interest issue, none of the alleged unexplored areas are related to a confidential communication between defense counsel and the victim.

Although Sorensen makes no complaint that questioning concerning victim's previous crimes was deficient, our review of the record satisfies us that trial counsel's questioning on these matters in no way suggests the existence of a actual conflict of interest that adversely affected counsel's performance. As previously mentioned, counsel represented the victim, approximately one year prior to the sexual interlude giving rise to this case, on charges of driving while under the influence and possession of marijuana and methamphetamine. At the time of trial, the victim was still on probation for those charges. On direct examination, the victim admitted she had been less than honest with investigators, neglecting to tell them she had taken wine to Sorensen's home, consumption of alcoholic beverages being a violation of the terms of her probation. On cross-examination, defense counsel questioned the victim about the charges giving rise to her probation, ie, the DWUI and possession charges. In addition, counsel asked the vie-tim if, for the charges upon which she was convicted, she had received the drugs from Sorensen, to which she responded "no." Thus, it is apparent that counsel did not shy away from questioning the victim about these prior crimes. Indeed, the questioning on these matters appears to help Sorensen's cause. We find no suggestion of a conflict of interest based on these facts.

The foregoing discussion disposes of two of Sorensen's claims. First, we decline to remand for an evidentiary hearing. Nothing in the record "strongly suggests" that a conflict of interest actually existed that adversely affected Sorensen's representation; we find no suggestion that "some plausible alternative defense strategy or tactic might have been pursued ... [that] was inherently in conflict with the attorney's other loyalties or interests." King v. State, 810 P.2d at 128 (quoting Brien v. United States, 695 F.2d at 15).

Second, we conclude trial counsel's eross-examination of the victim was well within the wide range of professionally competent assistance. In addition to the previously discussed complaints, Sorensen asks this court to compare the transcript of the eross-exami-nation of the victim from the first trial (which resulted in a mistrial) with the transcript in this case. He argues that such a comparison will reveal that counsel in the second trial was ineffective in cross-examining the victim. However, because the same attorney represented Sorensen in both cases, it is apparent that any change in cross-examination from the previous trial was a tactical decision. Finally, although Sorensen makes numerous complaints about the inadequacy of cross-examination of the victim,

there is no trial in which even experienced counsel is entirely satisfied with all the tactics employed in the heat of battle. Indeed, the blessing of perfect hindsight frequently discloses avenues which should have been explored or questions that should have been left unasked. No two trial lawyers approach the same case from the same perspective, nor do they always develop the same trial strategy; thus what to one appears to be sound, may to another appear unwise. A reviewing court must always be alert to distinctions between disagreement over tactic and valid complaints of inadequate counsel.

Myrick v. Maschner, 799 F.2d 642, 647 (10th Cir.1986).

The Judgment and Sentence entered by the district court is affirmed.

      . Those Wyoming Rules of Professional Conduct provide in pertinent part:
      Rule 1.7. Conflict of interest: General rule
      (b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests, unless:
      (1) the lawyer reasonably believes the representation will not be adversely affected; and
      (2) the client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved.
      Rule 1.9. Conflict of interest: former client
      (a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client consents after consultation except that when the former client is a governmental entity, consent is not permitted.


source: Caselaw Access Project

author: MATTHEWS, Chief Justice.

license: Public Domain

text:
    Rita C. BENNETT, Appellant, v. Albert B. BENNETT and State of Alaska, Department of Revenue, Child Support Enforcement Division, Appellees.
    No. S-8959.
    Supreme Court of Alaska.
    July 28, 2000.

      Tara N. Logsdon, Tull & Associates, Paimer, for Appellant.
    Lynn E. Levengood, Downes, MacDonald & Levengood, P.C., Fairbanks, for Appellee Albert Bennett.
    Diane L. Wendlandt, Assistant Attorney General, Anchorage, Bruce M. Botelho, Attorney General, Juneau, for Appellee State of Alaska, Department of Revenue, Child Support Enforcement Division.
    Before MATTHEWS, Chief Justice, EASTAUGH, FABE, BRYNER, and CARPENETI, Justices.
   OPINION

MATTHEWS, Chief Justice.

I. INTRODUCTION

Rita Bennett appeals the superior court's denial of her child support reimbursement claim for the year she had de facto custody of her son, but her ex-husband, Albert Bennett, was designated as custodian in a court order. Because child support orders should follow custody orders under the rule articulated in Turinsky v. Long, we affirm the denial of Rita's reimbursement claim. However, we reverse the superior court's retroactive award of child support to Albert for this same time period.

II, FACTS AND PROCEDURAL HISTORY

Rita and Albert Bennett were divorced by a decree of dissolution on May 24, 1985. The decree granted Rita primary physical custody of the two minor children and granted Albert reasonable visitation rights. Albert was required to pay $250 per month, per child, as child support. Albert's child support obligation was later changed to a single sum of $788 per month, effective May 16, 1990. -

Eleven years after the divoree, thirteen-year-old Alec expressed an interest in living with his father. Albert filed a motion to modify physical custody and child support, and Rita filed a pro se response, agreeing to the change in custody but requesting that Alee "be allowed to live with his father, Mr. Bennett, in Mississippi for one year before making a decision regarding physical custody'” f

'On September 17, 1996, the superior court granted Albert's motion to modify custody and child support. The order stated that "because the mother consents to the child living with the father, at least for one year IT IS HEREBY ORDERED that the motion is granted." At the end of the order, the judge handwrote the following:

This order is subject to review upon a motion by Rita Bennett within one year of the date of this order. The court retains jurisdiction over this matter for one year after the date of this order notwithstanding the child's residence in Mississippi.

The order also stated that "child support shall be ordered pursuant to Civil Rule 90.83 effective the date the motion was filed [July 1996]." Despite this provision, the court did not issue a child support order.

On September 80, 1996, Albert applied to CSED to collect child support from Rita. But, because there was no child support order in place, CSED did nothing to collect the child support until August 1998, when it filed a motion requesting that the court establish a child support order.

In the meantime, Albert's custody of Alec was not successful. In late July 1997 Alec moved back to Alaska to live full time with his mother. He has lived with her ever since.

Despite regaining de facto physical custody of Alec in July 1997, Rita did not move to modify the September 17, 1996 custody order until a year later, on July 8, 1998. In her motion, she requested custody and child support from August 1, 1997. Albert opposed her motion. The court granted part of her motion, awarding her primary physical custody of Alec but requiring Albert to pay child support only from the date of her motion, July 1998.

A few days later, CSED filed a motion to establish Rita's child support obligations for August 1996 through July 1998, the two years that Albert had de jure custody. Rita opposed CSED's motion insofar as it required her to pay child support to Albert during the year that she had de facto physical custody of Alec but Albert had de jure physical custody. She also filed a cross-motion for reimbursement of her child care costs for that year.

The superior court denied Rita's request for reimbursement, holding that "under Turinsky v. Long,[] the court cannot order Albert Bennett to pay child support retroactively during a period of time when he was identified as the custodial parent in an existing child custody order." The court later ruled that Rita owed Albert child support for the entire two years that he had de jure custody. The court assessed Rita's child support obligations at $600 per month for August 1996 through December 1996 and $714 per month for January 1997 through June 1998. }

This appeal followed.

III, STANDARD OF REVIEW

This court will generally not disturb a trial court's decision on a motion for child support unless the trial court abused its discretion. We will set aside a lower court's factual findings only when they are clearly erroneous. Findings are clearly erroneous when, "after reviewing the record as a whole, this court is left with a definite and firm conviction that a mistake has been made."

However, whether the trial court used the correct method of calculating child support is a matter of law, as is the proper interpretation of a court order. We apply de novo review to questions of law, adopting the rule of law most persuasive in light of precedent, reason, and policy.

IV. DISCUSSION

This appeal presents two separate but interrelated questions: (1) is Rita entitled to child care reimbursement for August 1997 through June 1998, the year when she had de facto physical custody of Alec but Albert had de jure physical custody? and (2) does Rita have to pay child support to Albert for that same time period?

A. Rite Is Not Entitled to Child Care Reimbursement for the Time That She Had De Facto Physical Custody of Alec But Albert Had De Jure Cus- ~ tody.

In Turinsky v. Long, we held that child support awards should be based on the court-ordered eustody or visitation, rather than on the actual custody arrangement. "If the parties do not follow the custody order, they should ask the court to enforce the _eustody order or should move to modify the child support order." We established this principle to prevent parents from interfering with court-ordered custody and visitation in order to gain an increase in child support payments. We intended as well to encourage parents to either comply with court orders or move to modify them in a timely manner.

Rita concedes that, under Turinsky, she cannot collect child care reimbursement for the time that she had de facto custody of Alec but Albert had de jure custody. She argues, however, that Albert ceased to have de jure custody of Alec in September 1997. According to Rita, the September 1996 custody order was a temporary order that naturally expired at the end of one year. CSED agrees that if the custody order was temporary, Rita is entitled to child support reimbursement after the date of its expiration.

Yet there is little evidence to support Rita's claim that the order was temporary. Rita bases her argument for the temporary nature of the order on the judge's handwritten comment that he is granting the motion "because the mother consents to the child living with the father, at least for one year." But this sentence is best understood as an explanation of the court's rationale in granting the change in custody rather than as a limitation on the length of that change. Moreover, the judge's handwritten addition

at the end of the order clearly indicates that, barring an affirmative action by Rita to move to modify the order, the change in custody would become permanent: "This order is subject to review upon a. motion by Rita Bennett within one year of the date of this order." (Emphasis added.) Therefore, under the terms of the custody order, de jure custody did not revert back to Rita until she moved to modify the order in July 1998.

Because Rita did not have de jure custody of Alec from July 1997 to June 1998, she is barred from collecting child care reimburse ment for that time period.

B. It Was Error to Grant a Retroactive Child Support Award to Albert for the Year He Had De Jure Physical Custody of Alec but Rita Had De Facto Physical Custody.

Although Rita is barred from receiving child support for the time before she moved for de jure custody, it was nonetheless error for the court to retroactively grant Albert child support for that same time period.

The commentary to Civil Rule 90.3 cautions courts to consider "all relevant factors" when retroactively establishing child support awards for a time period where no order currently exists. Child support awards, by their very definition, are intended to benefit the child, not provide a windfall to a parent. Awarding child support to a parent who has relinquished de facto custody and no longer provides any financial support to the child does not further the purposes of the child support rule.

Here, Albert ceased to provide any financial support for Alec after Alec left his custody in July 1997. Rita provided the sole support for Alec during the time that she had de facto custody. Given that the trial court was aware of these circumstances, it was an abuse of discretion to retroactively award Albert child support for this time period.

V. CONCLUSION

Child support awards should be based on custody orders. If parents do not follow the custody order, they bear the burden of notifying the court of the change and applying for the appropriate modifications.

Because Rita did not move to modify the custody order until a year after Alec came to live with her, she is barred from receiving child care reimbursement for that year. However, Rita should not have to pay child support to Albert for the time when he no longer had de facto physical custody of Alec and she was providing sole financial support for Alec's welfare.

We therefore AFFIRM the superior court's denial of Rita's reimbursement claim but REVERSE the superior court's retroactive award of child support to Albert for the time that Albert had de jure custody but Rita had de facto custody.

      . 910 P.2d4 590, 595 (Alaska 1996).

      . The second child turned eighteen in 1996 before the events leading to this lawsuit took place. Her custody and child support are not at issue in this appeal.

      . There is a terminology problem in this case that stems from the fact that "legal custody" has two meanings. In one sense "legal custody" is distinct from court-ordered "physical custody" and refers to the responsibility for making "major decisions affecting the child's welfare." Farrell v. Farrell, 819 P.2d 896, 899 (Alaska 1991) (internal quotations omitted). "Physical custody" refers to the responsibility for physical care and the immediate supervision of the child. But "legal custody" may also refer to custody under a court order which may, in turn, be either "legal" in the former sense, or physical, or both. In this opinion we use "legal custody" in the former sense. The parties in this case had joint legal custody of their children. We therefore use the terms "de jure" and "de facto" custody to refer to court-ordered and non-court-ordered physical custody statuses.

      . 910 P.2d 590, 595 (Alaska 1996).

      . See Monette v. Hoff, 958 P.2d 434, 436 (Alaska 1998).

      . See Dodson v. Dodson, 955 P.2d 902, 905 (Alaska 1998).

      . Marine v. Marine, 957 P.2d 314, 316 (Alaska 1998) (citation and internal quotations omitted).

      . See Crayton v. Crayton, 944 P.2d 487, 489 n. 1 (Alaska 1997); Charlesworth v. State, Child Support Enforcement Div. ex rel. Charlesworth, 779 P.2d 792, 793 (Alaska 1989).

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

      . 910 P.2d 590, 595 (Alaska 1996).

      . Id.; cf. Karpuleon v. Karpuleon, 881 P.2d 318, 320 (Alaska 1994) (burden is on parents to apply promptly for modification when child changes residency).

      . See Turinsky, 910 P.2d at 594-95.

      . See id.

      . See Vachon v. Pugliese, 931 P.2d 371, 382 (Alaska 1996) (holding that in cases where no custody order exists, child support should be awarded pursuant to Civil Rule 90.3).

      . We are unpersuaded by Rita's other arguments for child support reimbursement. Unlike the parties in Karpuleon, 881 P.2d at 321-22, Rita and Albert did not have an agreement that shifted child support obligations when custody shifted. Similarly, unlike the father in Crayton v. Crayton, 944 P.2d 487, 488-89 (Alaska 1997), who had both de jure and de facto custody of the children pursuant to interim custody orders, Rita did not have de jure custody of Alec until the court granted her motion to modify the 1996 custody order.

      . Alaska Civil Rule 90.3 Commentary VLE.

      . See generally Civil Rule 90.3.

      . See id. Commentary !I ("'Integral to [Civil Rule 90.3] is the expectation that the custodial parent will contribute at least the same percentage of income to support the child{[ ].").

      . Because no child support order existed, the trial court did not have to concern itself with the prohibition against retroactive modification of child support. See, e.g., Hendren v. State, Dep't of Revenue, Child Support Enforcement Div., 957 P.2d 1350, 1353 (Alaska 1998) (no retroactive modification of child support orders except as allowed by statute). We note, however, that even if a support order had existed, the result might not have differed. Under the recently revised Civil Rule 90.3(b)(3), a de jure custodial parent may be precluded from collecting arrearages that accrue under an existing child support order if primary physical custody shifts to the other parent for longer than nine months:
      The court may find that a parent and a parent's assignee are precluded from collecting arrearages for support of children that accumulated during a time period exceeding nine months for which the parent agreed or acquiesced to the obligor exercising primary custody of the children. A finding that preclusion is a defense must be based on clear and convincing evidence.

      . See Turinsky v. Long, 910 P.2d 590, 595 (Alaska 1996).


author: PER CURIAM.

text:
    Mike O'CALLAGHAN, Appellant, v. STATE of Alaska, DIRECTOR OF ELECTIONS Janet Kowalski, Appellee.
    No. S-9768.
    Supreme Court of Alaska.
    Aug. 16, 2000.
    Rehearing Denied Sept. 29, 2000.

      Mike O'Callaghan, pro se, Anchorage. James L. Baldwin, Assistant Attorney General, and Bruce M. Botelho, Attorney General, Juneau, for Appellee.
    Max F. Gruenberg, Jr., Gruenberg, Clover and Holland, Anchorage, for Amicus Curiae Alaskan Voters for an Open Primary.
    Before MATTHEWS, Chief Justice, EASTAUGH, FABE, BRYNER, and CARPENETI, Justices.
   OPINION

PER CURIAM.

11 Mike O'Callaghan appeals the superi- or court's order denying his challenge to emergency regulations promulgated by the Alaska Division of Elections that temporarily adopt a partially closed ballot primary election to replace the blanket primary election prescribed in AS 15.25.060.

12 In O'Callaghan v. Coghill, (O'Callo-ghom I), we concluded that the blanket primary election prescribed in AS 15.25.060 did not clearly deprive political parties of their right of free association, as guaranteed by the First Amendment of the United States Constitution. In O'Callaghan v. State, (O'Callaghan II), after considering supplemental briefing requested in O'Callaghan I, we found AS 15.25.060 to be constitutional. We therefore invalidated regulations promulgated by the Division of Elections implementing a partially closed ballot primary.

T3 On June 26, 2000, the United States Supreme Court decided in California Democratic Party v. Jones that California's blanket primary statute violates the First Amendment's guarantee of associational freedom.

14 Having reviewed Jones, we find no constitutionally significant differences between Alaska's primary election law and the California law declared unconstitutional in Jones. Nor do we find any principled basis for concluding that Alaska's blanket primary election statute remains constitutional in light of Jones. Because the United States Constitution's Supremacy Clause requires states to adhere to the Supreme Court's constitutional interpretation in Jones, we hold that O'Callaghan II's ruling that AS 15.25.060 is constitutional is no longer tenable.

15 In O'Callaghan I we determined that the Division of Elections, as an executive branch agency, would have authority to "abrogate a statute which is clearly unconstitutional under a United States Supreme Court decision dealing with a similar law, without having to wait for another court decision specifically declaring the statute un-constitutional." We conclude that AS 15.25.060 is clearly unconstitutional and that, given Jones, the division had authority to abrogate the statute.

16 By acknowledging in O'Calla-gham I and O'Callaghan II that the validity of the challenged regulations turned on the unconstitutionality of AS 15.25.060, we implicitly determined that the division's power to abrogate a clearly unconstitutional statute triggered its authority to regulate on a temporary basis in an emergent situation like the situation we face here. The Supreme Court issued Jones less than two months before the Alaska primary's scheduled date. The Alaska Legislature is out of session and will not reconvene until January 2001. (Given these cireumstances, we conclude that the division has authority to promulgate emergency regulations to implement a primary election that complies with the constitutional mandate of Jones. We find that the division's power to take the temporary action needed to ensure a timely and constitutional primary is solidly rooted in the principle of necessity and in the division's statutory powers of supervision over elections. Accordingly, we reject O'Callaghan's contention that the division lacked authority to adopt curative emergency regulations in response to the decision in Jones.

17 We also reject O'Callaghan's argument that the division's emergency regulations prescribe an unlawful form of ballot, "the same ballot type declared unlawful by' this Court" in O'Callaghan II. In that case we declared the partially closed ballot unlawful only because it was inconsistent with AS 15.25.060; in no other context did we even consider the validity of that form of ballot. Because we found AS 15.25.060 to be constitutional, we simply ruled that the division lacked authority to adopt or implement any other form of primary ballot-including the partially closed ballot. Now that Jones overturns O'Callaghan II's constitutional ruling, our decision in that case provides no basis for questioning the division's new emergency regulations; nor did it ever support the conclusion that a partially closed ballot primary is inherently an unlawful form of election.

T8 We are similarly unpersuaded by O'Callaghan's reliance on O'Callaghan II for the proposition that a partially closed ballot primary extinguishes his right to vote for candidates of his choice, regardless of party affiliation. O'Callaghan quotes language from O'Callaghan II supporting this proposition; but the language he quotes simply paraphrased provisions of the Alaska Statutes establishing Alaska's "blanket primary" system -a system that Jones has now declared unconstitutional. As the state correctly notes, the United States Supreme Court, in Jones, expressly considered and rejected the notion of a fundamental right to vote in a primary election for all candidates, regardless of party affiliation.

19 O'Callaghan raises a closer question in contending that the partially closed primary violates the Alaska Constitution's guarantee that "[slecrecey of voting shall be preserved." By requiring voters who opt for the Republican ballot to disclose their party affiliation as a condition of receiving their ballots, the partially closed ballot system implicates legitimate privacy concerns. But party affiliation has traditionally been a matter of public record. While the partially closed ballot system requires voters to disclose their ballot preference in addition to their party affiliation, case law in other jurisdictions addressing the secrecy issue firmly establishes that, in the context of primary elections-elections whose central purpose is to select parties' nominees -this marginally greater demand for disclosure falls well outside the Constitution's core concern for preserving the secrecy of voting, as opposed to the secrecy of party preference. On balance, then, we conclude that, as long as the division takes necessary steps to prevent individual voters' ballot preferences from becoming a matter of public record, the partially closed ballot does not impermissibly infringe the Constitution's voting secrecy clause.

110 We reject as meritless 0'Cal-laghan's contention that inclusion of a "statutory ballot" in the partially closed ballot system is impermissible because Jones declared AS 15.25.060-the statute at issue-uneonsti-tutional. Jones holds that the freedom of association guaranteed by the First Amendment prohibits a statutory ballot that, like the ballot prescribed in AS 15.25.060, allows voters who are not party members to vote in a primary election for candidates of a party that does not consent to the non-members voting. But this constitutional prohibition dissipates when, as here, an emergency regulation prescribes a reformed "statutory ballot" that omits all candidates of the non-consenting party. Since the "statutory ballot" at issue here refers to the ballot that the division has reformed to comply with Jones 's mandate, we find nothing impermissible in the division's specification that the partially closed ballot system include a "statutory ballot."

11 We similarly find no merit in O'Callaghan's claim that the division ignored the "clear mandate" of Jones by adopting a partially closed primary ballot instead of a nonpartisan blanket primary ballot.

a. Although Jones does expressly point out that a non-partisan blanket primary would pass constitutional muster, Jones says nothing to suggest that this is the only constitutionally permissible form of primary ballot or that the non-partisan ballot form deserves preference over other constitutionally permissible forms.

b. Publication of Jones on June 26 left the division less than two months to adopt, implement, and carry out a new form of primary election that would not violate the Republican Party's associational rights. A non-partisan blanket ballot of the kind de-seribed in Jones would have foreed the division to set in motion an unfamiliar process that would have required it to call upon each political party to nominate the party's own slate of candidates for the non-partisan primary ballot.

c. The viability of this non-partisan system presupposes adequate time for its implementation by the division and by political parties alike-time that scarcely existed in this case.

d. Moreover, the non-partisan primary's central assumption that political parties should select their candidates directly conflicts with a fundamental policy long embedded in Alaska's election laws: the notion that party candidates should be nominated by an open, public process-that candidates "be nominated in a primary election by direct vote of the people" and that "the candidate receiving the highest number of votes for an office by a political party" appear on the general election ballot.

e. In sum, given the time constraints facing the division, the untried and relatively elaborate demands it would face in implementing a non-partisan primary, and the basic incompatibility of that process with Alaska's statutory goal of requiring-to the maximum permissible extent-that political parties nominate their candidates through an open and public electoral process, we find no basis for concluding that the division overstepped its emergency powers by opting for the partially closed primary ballot.

112 For the foregoing reasons, we AFFIRM the superior court's decision denying O'Callaghan's request for injunctive and declaratory relief.

      . 6 Alaska Administrative Code (AAC) 28.101-900.

      . See 888 P.2d 1302, 1305-06 (Alaska 1995).

      . See 914 P.2d 1250, 1263 (Alaska 1996).

      . See id. at 1264.

      . See - U.S. --, 120 S.Ct. 2402, 2414, 147 L.Ed.2d 502 (2000).

      . See U.S. Const. art. VL

      . 888 P.2d at 1304.

      . See O'Callaghan II, 914 P.2d at 1264; O'Callaghan I, 888 P.2d at 1305.

      . See AS 15.15.010 (giving the director of elections authority over the conduct of state elections); AS 15.25.090 (extending this authority to primary elections); and AS 44.62.250 (authorizing adoption of emergency regulations). ®

      . + See O'Callaghan II, 914 P.2d'at 1263-64.

      . See O'Callaghan II, 914 P.2d at 1252.

      . See Jones, 120 S.Ct. at 2407 n. 5, 2413.

      . Alaska Const. art. V, § 3.

      . See AS 15.07.127 (requiring director to compile list of registered voters that includes party affiliation, and to provide this list to "[aluy person").

      . See AS 15.25.010 ("Candidates for the elective state executive and state and national legislative offices shall be nominated in a primary election by direct vote of the people ....") (emphasis added); AS 15.25.100 ('The director shall place the name of the candidate receiving the highest number of votes for an office by a political party on the general election ballot.") (emphasis added).

      . See, eg., Lett v. Dennis, 221 Ala. 432, 129 So. 33, 34-35 (1930) ("[Ilt is the secrecy of the ballot which the {Alabama statute] protects and not secrecy as to the political party with which the voters intend to act."); Katz v. Fitzgerald, 152 Cal. 433, 93 P. 112, 113 (1907) ("[It is the secrecy of the ballot which [the California constitution] protects, and not secrecy as to the political party with which the voter desires to act."); State v. Beggs, 126 Kan. 811, 271 P. 400, 402 (1928) (''The secrecy required [by the Kansas constitution] is as to his vote for candidates, not as to political leaning or party affiliation."); Fer-ency v. Secretary of State, 190 Mich.App. 398, 476 N.W.2d 417, 424-25 (1991), rev'd on other grounds, 439 Mich. 1021, 486 N.W.2d 664 (1992) (ballot secrecy requirement of Michigan constitution not violated by requiring voters to declare publicly their party affiliation in order to vote in primary).

      . O'Callaghan has not contended or shown that ballot preference would become a matter of public record under the challenged emergency regulations.

      . See Jones, 120 S.Ct. at 2409-10.

      . See id. at 2414.

      . See id.

      . O'Callaghan filed suit on July 5, 2000, the superior court issued its ruling on July 12, we heard oral argument on July 25 following expedited briefing, and issued a preliminary order affirming on July 25. J

      . AS 15.25.010.

      . AS 15.25.100.


author: CARPENETI, Justice.

text:
    STATE of Alaska, DEPARTMENT OF REVENUE, CHILD SUPPORT ENFORCEMENT DIVISION, Appellant, v. Jeffrey A. MAXWELL, Appellee.
    No. S-8886.
    Supreme Court of Alaska.
    Aug. 18, 2000.

      Diane L. Wendlandt, Assistant Attorney General, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellant.
    Kenneth C. Kirk, Anchorage, for Appellee.
    Before MATTHEWS, Chief Justice, EASTAUGH, FABE, BRYNER, and CARPENETI, Justices.
   OPINION

CARPENETI, Justice.

I. INTRODUCTION

Krystal Maxwell, while married to but separated from Jeffrey Maxwell, gave birth to TW. Both Krystal and Jeffrey knew that TW. was not Jeffrey's child; the biological father (Kurt Walker) acknowledged his paternity of T.W.; and the Child Support Enforcement Division (CSED) apparently knew that Kurt Walker was T.W.'s biological father. Nonetheless, CSED administratively established a child support obligation for Jeffrey and large child support arrearages. Because Jeffrey was denied a fair and meaningful opportunity to rebut the presumption of paternity when CSED entered the support obligation against him, we affirm the decision of the superior court striking Jeffrey's child support obligation and disallowing enforcement of uncollected arrearages.

IIL FACTS AND PROCEEDINGS

Jeffrey and Krystal Maxwell married in October 1988 while Krystal was five months pregnant with the child of another man. She gave birth to the child in February 1989. Soon after the child's birth, the Maxwells permanently separated. Krystal then became involved in an intimate relationship with Kurt Walker. This relationship resulted in a second pregnancy, from which T.W. was born on August 14, 1991.

The Maxwells sought to dissolve their marriage in October 1991, but their petition was rejected by the court. They again sought a dissolution in November 1993, which was granted in January 1994. Although T.W. had been born while the parties were still married, the dissolution papers made no mention of him.

CSED first attempted to collect child support from Jeffrey in 1992 as reimbursement for public assistance paid for the first child. CSED pursued Jeffrey, the presumed father, because he and Krystal were married when that' child was born. Jeffrey responded by successfully disestablishing his paternity of the child in 1998. However, nothing was done at that time regarding Jeffrey's presumed paternity of TW. Apparently, neither Jeffrey nor Krystal understood that TW. was also technically a child of the marriage.

Jeffrey was listed on the birth certificate as T.W.'s father in accordance with AS 18.50.160(d), despite the fact that TW. bore his biological father's surname. Evidence suggests that Kurt Walker may have provided Krystal with an affidavit acknowledging paternity at the time of T.W.'s birth. It is unclear, however, who saw this affidavit. It was apparently never filed with a court or the Bureau of Vital Statistics But CSED knew that Kurt Walker was TW .'s biological father when, on December 21, 1993, it opened a file for TW. and initiated the administrative process to collect child support from Jeffrey. CSED also knew Kurt Walker was living with Krystal and their child, TW.

By 1994 CSED was actively seeking child support from Jeffrey for TW. An order of support was issued and arrears were established on approximately April 16, 1994. However, the Notice of Finding of Financial Responsibility (NFFR) was not served on Jeffrey until January 20, 1995, Jeffrey attempted to oppose CSED's action. He contacted CSED by telephone and explained that he was not the biological father. But the CSED representative who spoke to Maxwell told him that his only recourse was to seek a judicial disestablishment of paternity.

After receiving this advice, Jeffrey did not formally contest CSED's administrative action. Nor did he immediately seek a judicial order to disestablish paternity. Instead, in July 1997, Jeffrey attempted to disestablish paternity by filing a motion in the Palmer Superior Court as a part of the previous dissolution action. That motion was denied because a dissolution action cannot determine paternity. Upon receiving notice that his motion was summarily denied, Jeffrey filed the complaint to disestablish paternity that gave rise to this case.

Meanwhile, CSED sought involuntary recovery against Jeffrey and collection began. The first two involuntary collections were withheld from Jeffrey's 1995 and 1996 Permanent Fund Dividend checks. Garnishments of his wages began in July 1997, presumably prompting both Jeffrey's motion to disestablish paternity and his subsequent lawsuit to the same effect.

Kurt Walker periodically paid voluntary child support for TW. directly to Krystal beginning in November 1994. He filed to establish paternity and secure visitation rights in February 1997. Trial was held the following August, with the court finding paternity and ordering child support payments to be paid through CSED.

Jeffrey's action to disestablish paternity came to trial in June 1998. After a one-day trial, the superior court vacated the order of child support as of the filing date of Kurt Walker's complaint to establish paternity. The superior court also eliminated arrears due but unpaid as of that date and ordered a refund of involuntary payments withheld after that date. CSED appeals.

III, DISCUSSION

A. Standard of Review

CSED challenges the superior court's elimination of the arrears that Jeffrey Maxwell owed. Whether CSED's child sup port order was void presents a question of law that we review de novo, adopting the rule of law that is "most persuasive in light of precedent, reason, and policy." We may affirm the superior court's decision on any basis appearing in the record.

B. Jeffrey Is Entitled to Relief Under Alaska Rule of Civil Procedure 60(b)(4) Because He Was Not Accorded Due Process of Law.

CSED argues that the superior court erred in vacating Jeffrey's child support arrears. It argues that because child support arrears are enforceable judgments, they may not be retroactively modified. While child support arrears are enforceable judgments, we do not accord them more deference than other forms of judgment.

1. Alaska Rule of Civil Procedure 60(b) indicates the circumstances under which relief is available in the instant case.

As noted above, after being told that his only recourse was a judicial action to disestablish paternity, Maxwell did not formally challenge CSED's 1994 order establishing his child support obligation and arrears. As a result, the order became final thirty days after it was served on Maxwell in January 1995.

The last sentence of Civil Rule 60(b) provides that "the procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independent action." Civil Rule 60(b) is the only Civil Rule that provides relief from a judgment or order. Because the Alaska Statutes treat CSED's support orders as judgments for certain purposes, Civil Rule 60(b) serves by analogy to indicate the cireumstances under which the superior court may grant relief from such orders.

In Kilpper v. State, CSED, we suggested that this approach may be appropriate in cases like this one:

We have never squarely decided whether or when a presumed father who disproves biological paternity is entitled to anything more than relief from future child support payments. But our decisions suggest that broader relief might be available upon proof of grounds that would warrant retrospective relief from judgment under Alaska Civil Rule 60(b).[]

Since child support orders are treated like judgments, we hold that trial courts may look to Civil Rule 60(b) for guidance in determining when relief is available.

2. Civil Rule 60(b)(4) relief was available to Jeffrey because CSED acted in a manner inconsistent with due process of law.

Civil Rule 60(b)(4) provides for relief from a void judgment. A judgment is void if the court that entered the judgment was without jurisdiction to act, or if that court acted in a manner inconsistent with due process of law. This rule of relief applies without time limitations because a void judgment cannot gain validity simply by the passage of time.

Since the judgment at issue here was actually a child support order issued by CSED that later became a series of judgments by operation of law, Jeffrey may not obtain relief unless the support order was issued without statutory authority or in a manner inconsistent with due process. Thus, the judgments were valid unless CSED lacked statutory authority to issue the original order of support or deprived Jeffrey of due process.

a. CSED had statutory authority to enter an order of child support against Jeffrey.

CSED clearly had statutory authority to enter an order of child support against Jeffrey under AS 25.27.140(@). This statute provides:

If no support order has been entered, the agency may establish paternity and a duty of support utilizing the procedures prescribed in AS 25.27.160-25.27.220 and may enforce a duty of support utilizing the procedure prescribed in AS 25.27.230-25.27.270. Action under this subsection may be undertaken upon application of an obligee, or at the agency's own discretion if the obligor is liable to the state under AS 25.27,120(a2) or (b).

Accordingly, for Jeffrey to be entitled to relief, CSED must have acted in a manner inconsistent with due process.

b. CSED violated Jeffrey's right to due process.

Due process requires that CSED provide an alleged obligor with an opportunity for a fair and impartial hearing before finalizing and implementing a continuing child support order that will become a series of enforceable judgments. Jeffrey did not re ceive a fair and impartial hearing.

CSED predetermined that Jeffrey was the "legal father" of TW. when he was merely the legally presumed father. The difference is significant. In the procedural context of a civil action, a legal presumption is a pre-investigatory allocation of evidentia-ry burdens; a finding of fact is a post-investigatory conclusion based on the evi-denee presented.

Jeffrey was the legally presumed father of T.W. based on the common law presumption that a husband is the father of any child born to his wife during the term of their marriage. But once CSED took formal action to enforce this presumption by issuing an administrative child support order, Jeffrey was entitled to a formal opportunity to rebut the presumption before CSED's order became final. CSED, however, did not entertain Jeffrey's efforts to rebut the presumption and show that he was not in fact TW .'s father. Nor did CSED engage in any fact finding. Because CSED did not have the power to administratively disestablish paternity at the time, it merely held that Jeffrey was the legal father of TW. and directed Jeffrey to the courts for relief.

It might be argued that at most Jeffrey has established grounds for reversal on appeal but not for Civil Rule 60(b) relief Here, however, the mistaken conclusion that Jeffrey was TW .'s "legal father" was used by CSED to deny him a meaningful hearing that could provide true relief in the procedural context of CSED's administrative action. His only recourse, as stated by CSED, was to seek relief by initiating a separate paternity action in the superior court. But that position denies due process to the presumed father: Arrears that acerue in the interim between service of the NFFR and a court order disestablishing the paternity of the presumed father cannot be retroactively modified because they are final judgments. Thus, the legally presumed father is liable for the arrears and has no recourse. Such a procedure denies a fundamental aspect of due process, which is the right to be heard.

C. Jeffery Is Entitled to Reimbursement of Child Support Amounts Collected and Retained by the State.

CSED argues that the superior court improperly ordered the state to reimburse Jeffrey for funds involuntarily collected from him after Kurt Walker filed his complaint. As both parties agree, our recent decision in State CSED v. Mitchell controls. In Mitchell, we held that to the extent that funds were collected and retained by the state, a court may properly order a refund, but that the court could not order a refund as to funds collected but passed through to another entity. As to those funds, the disestablished father must instead collect directly from that other entity. Thus, any funds collected from Jeffrey and retained by the state are subject to a refund order; but Jeffrey must bring a separate action to obtain those funds collected and passed through to either the federal government or to Krystal. Because the superior court's refund order did not distinguish between funds retained by the state and those passed through to another entity, we remand with directions that only funds retained by the state are subject to the refund order.

IV. CONCLUSION

Jeffrey Maxwell was not accorded due process of law by CSED when it entered a child support order and established child support arrears against him. Therefore, the order of support entered by CSED against him was void. As a matter of law, Jeffrey Maxwell is entitled to relief under Civil Rule 60(b)(4). Accordingly, we AFFIRM the superior court's order vacating the child support arrears. We REMAND the superior court's order concerning refund for further proceedings consistent with this opinion.

      . AS 18.50.160(d) provides:
      If the mother was married at conception, during the pregnancy, or at birth, the name of the husband shall be entered on the certificate as the father of the child unless: (1) paternity has been lawfully determined otherwise by a tribunal ...; or (2) both the mother and the mother's husband execute affidavits attesting that the husband is not the father ... and the mother and the other man execute affidavits attesting that the other man is the father....

      . The record indicates that Krystal resisted efforts to list Jeffrey as her husband for birth certificate purposes.

      . The record does not contain the actual order; accordingly, the exact date is uncertain.

      . The record shows that CSED returned Jeffrey's call on April 26, but CSED's records do not indicate the date of Jeffrey's call that prompted this response.

      . The superior court also ended Jeffrey's ongoing child support obligation when it disestablished his paternity of TW. CSED does not appeal that aspect of the superior court's judgment.

      . Cf. Dewey v. Dewey, 969 P.2d 1154, 1157 (Alaska 1999) (reviewing de novo subject matter jurisdiction under Civil Rule 60(b)(4) (citations omitted)).

      . State, CSED v. Kovac, 984 P.2d 1109, 1111 (Alaska 1999) (citation omitted); Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979).

      . See Pierce v. Pierce, 949 P.2d 498, 500 (Alaska 1997).

      . See AS 25.27.225; Ferguson v. State, CSED, ex rel. P.G., 977 P.2d 95, 100 (Alaska 1999) ("[Elach child support payment, as it becomes due, is a final judgment in its own right." (citations omitted)).

      . See AS 25.27.170(b).

      . AS 25.27.225 provides:
      A support order ordering a noncustodial parent obligor to make periodic support payments to the custodian of a child is a judgment that becomes vested when each payment becomes due and unpaid. The custodian of the child, or the agency on behalf of that person, may take legal action under AS 25.27.226 to establish a judgment for support payments ordered by a court of this state that are delinquent.

      . We have previously applied other civil rules by analogy in appropriate cases. See e.g., Pioneer Const. v. Conlon, 780 P.2d 995, 1001 (Alaska 1989) (awarding attorney's fees under AS 23.30.145(c) by analogy to Civil Rule 82); State v. Thompson, 612 P.2d 1015, 1017 (Alaska 1980) (applying procedural Civil Rules by analogy to administrative proceedings); Ketchikan Retail Liquor Dealers Ass'n v. State, Alcoholic Beverage Control Bd., 602 P.2d 434, 439 n. 16 (Alaska 1979) (applying former Appellate Rule 9(d) by analogy to Civil Rule 37(b)(2)(A), which authorizes the imposition of a similar sanction for failure to make discovery).

      . 983 P.2d 729 (Alaska 1999).

      . Id. at 732-33.

      . See Dixon v. Pouncy, 979 P.2d 520, 525 (Alaska 1999) (citing Perry v. Newkirk, 871 P.2d 1150, 1153, 1157 n. 5 (Alaska 1994)); Aguchak v. Montgomery Ward Co., 520 P.2d 1352, 1354 (Alaska 1974).

      . See Kennecorp Mortgage & Equities, Inc. v. First Nat'l Bank of Fairbanks, 685 P.2d 1232, 1236 (Alaska 1984) (citation omitted).

      . See AS 25.27.225.

      . We observed in In re Hanson, 532 P.2d 303 (Alaska 1975), that:
      In determining whether due process has been observed by an administrative agency of the State of Alaska, this court reviews the proceedings of the administrative body to assure that the trier of fact was an impartial tribunal, that no findings were made except on due notice and opportunity to be heard, that the procedure at the hearing was consistent with a fair trial, and that the hearing was conducted in such a way that there is an opportunity for a court to ascertain whether the applicable rules of law and procedure were observed.
      Id. at 305 (internal indentation omitted) (quoting K & L Distribs., Inc. v. Murkowski, 486 P.2d 351, 357 (Alaska 1971)). As such, a failure on the part of CSED to provide Jeffrey with a fair and impartial hearing would violate Jeffrey's due process rights.

      . See T.P.D.v. A.C.D., 981 P.2d 116, 119 (Alaska 1999) ("A child born to a married woman is presumed to be the offspring of her husband." {citation omitted)).

      . See Alaska R. Evid. 301(a).

      . See Black's Law Dictionary 646 (7th ed.1999) (defining "finding of fact').

      . See T.P.D., 981 P2d at 119 (citation omitted).

      . See Morris v. Morris, 908 P.2d 425, 429 (Alaska 1995) (noting that Civil Rule 60 is not a substitute for failing to file a timely appeal or a vehicle for relitigating issues that have been resolved by a prior judgment (quoting Burrell v. Burrell, 696 P.2d 157, 163 (Alaska 1984)).

      . See Keyes v. Humana Hosp. Alaska, Inc., 750 P.2d 343, 353 (Alaska 1988).

      . The parties dispute the proper effective date of the refund order. CSED argues that the date on which Jeffrey Maxwell moved to disestablish paternity (December 18, 1997) is the proper date. Maxwell argues that the date on which Kurt Walker moved to establish his own paternity (February 8, 1997) is the proper date. The superior court utilized the earlier date, reasoning that because a child may have only one father the date of Kurt Walker's establishment of paternity must necessarily end Jeffrey Maxwell's obligation to provide support. The superior court did not err in this conclusion.

      . 930 P.2d 1284 (Alaska 1997).

      . See id. at 1289-90.

      . See id. at 1290.