author: GOLDEN, Justice.

text:
    2002 WY 88
    Rex Brian DAVIS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    No. 00-301.
    Supreme Court of Wyoming.
    June 12, 2002.

      W. Keith Goody, Jackson, Wyoming, Representing Appellant.
    Gay Woodhouse, Wyoming Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Georgia L. Tibbetts, Senior Assistant Attorney General, Representing Appellee.
    Before LEHMAN, C.J., and GOLDEN, HILL, KITE, and VOIGT, JJ.
   GOLDEN, Justice.

[¶ 1] In this appeal, Appellant Rex Davis (Davis) requests that we review the trial court's denial of his motion for a new trial brought pursuant to Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). After a jury trial and convictions for conspiracy to deliver methamphetamine and delivery of methamphetamine, Davis learned that the State failed to disclose impeachment material concerning its primary witness and brought his motion. The trial court conducted a hearing and denied the motion.

[¶ 2] We reverse and remand for new trial.

ISSUES

[¶ 3] Davis presents this statement of the issue for our review:

Did the failure of the State to disclose the existence of the Morris Powell wire and. tape violate the defendant's constitutional right to due process of the law, to be confronted with the witnesses against him and the effective assistance of counsel under the 5th, 6th, and 14th Amendments to the United States Constitution and the applicable Wyoming constitutional provisions?

The State declares the issue is:

Was Appellant denied a fair trial by the State's failure to disclose potential impeachment evidence?

FACTS

[¶ 4] In 1998, the Wyoming Division of Criminal Investigation (DCI) recorded Bobbie Morris selling methamphetamine to a DCI informant on three separate occasions. Subsequently, Morris agreed to be a DCI confidential informant. On June 3, 1999, Morris notified DCI that she had arranged to purchase methamphetamine from Richard Wilkie later that evening. DCI determined that Morris should buy an "eight ball" of methamphetamine and provided her with money for that purpose. Morris carried a microcassette recorder and wore a body transmitter, and DCI agents set up surveillance near Wilkie's home and monitored transmission.

[¶ 5] Morris arrived at and entered a home next to Wilkie's where he was visiting with neighbors. Wilkie did not have methamphetamine to sell to her but twice called someone else and left messages on an answering machine. The recording of Morris' activities while waiting to purchase drugs covered a considerable time and included periods when a stereo's volume was turned up loudly blocking out talking and other sounds and when Morris spent about thirty minutes at the home of Wilkie's neighbor. Morris testified that Wilkie smoked marijuana while she was there. Morris and Wilkie returned to Wilkie's house and, after a third call, Wilkie talked to "Debbie" and told Morris that "Debbie" was on her way. Soon afterwards, Davis and his friend, Deborah Hensley, arrived at Wilkie's residence in Davis' pickup truck.

[¶ 6] The microcassette recorder carried by Morris did not record the drug transaction and, at trial, Morris testified that she had not known that it was not working and had not shut it off. The body transmitter worn by Morris, however, continued to work and revealed Hensley asking Morris what she needed, to which Morris replied, "a ball." Hensley replied that, "we only have a gram." Morris asked the price, and Hensley can be heard stating, "eighty," and Morris stating that she would take the gram. Wilkie, Morris, and Hensley went into Wilkie's home, and the purchase was made. |

[¶ 7] Davis was charged with one count of delivery of methamphetamine and one count of conspiracy to deliver methamphetamine. At trial, Morris testified that Davis had participated in the above conversation by telling Hensley that they had a gram and that the price was eighty, and Hensley then relayed that information to Morris. Morris also testified that Davis pulled out a baggie from his pocket and handed it to Hensley who then left the vehicle, entered Wilkie's home, and finished the transaction. The critical issue in Davis' trial was whether Davis could be heard participating in the delivery. The prosecution argued to the jury that it could hear a male voice in the background making these statements. A DCI agent observing. the buy testified that he saw Davis in the truck but could not hear the statements; however another DCI agent testified that he could hear Davis make these statements. The only witness to testify to these events was Morris because Hensley was also prosecuted for conspiracy to deliver and delivery in 'a separate trial and did not testify, and Wilkie was deceased.

[¶ 8] Although the prosecution contended that the Morris tape confirmed Morris' version of the events during the buy, the State took steps to establish her credibility and had the DCI agent responsible for Morris as an informant testify that he found her particularly trustworthy. This DCI agent testified in pertinent part:

Q. Who was the confidential informant in this case?
A. Bobbie Morris.
Q. Had you previously worked with Ms. Morris?
A,. Yes sir.
Q. Approximately how many times had you worked with Ms. Morris?
A. I would-I would say in the neighborhood of eight to ten times, somewhere along in there.
Q. Is it common for you to work with a confidential informant eight to ten times?
A. Yes, sir, especially one you trust.
Q. Was that, indeed, the case with Ms. Morris?
A, Yes, sir.
Q. Why did you feel that way about Ms. Morris?
A. Well, we had-we had given Ms. Morris random UAs [urinalysis]. They always came clean. And one way, if you want to build your credibility, is when a confidential informant provides you with information and you can in turn go back out and corroborate that information and know that that information is true, you know, that that just boosted that credibility so much, and Ms. Morris did that on numerous occasions.

[¶ 9] Additionally, Morris testified that she had agreed to become an informant to avoid prosecution because of concerns that she might lose custody of her children, and also to change her life by recovering from her drug addiction and trying to escape the drug world.

[¶ 10] Davis' defense council contended that the jury could not hear Davis' statements on the Morris tape and Morris' testimony was not credible because she was a paid informant who had manipulated the events of the drug transaction that evening. Defense counsel explored whether Morris could have purchased the drugs from the neighbors or Wilkie, and suggested that the stereo volume was turned up loudly to deliberately disguise her own drug use that evening. Morris testified that she had not yet been prosecuted for her three earlier arrests, and had used drugs onee two months earlier since she began working for DCI. Davis was convicted on both counts and sentenced to concurrent terms of eight to twelve years.

[¶ 11] Three days after Davis' sentencing, an informant, Charlotte Powell, notified Davis' defense counsel that approximately thirty days before Davis' trial, she had tape-recorded a conversation with Morris for a murder investigation conducted by the Rock Springs Police Department. Morris was not a suspect but was believed to have information about the murder. Powell informed Davis' defense counsel that the tape had recorded Morris using narcotics. Defense counsel moved for new trial on the basis of a Brady violation, and the district court held a hearing.

[¶ 12] At the hearing, Davis' defense counsel contended that on the Powell tape, Morris could be heard consuming the methamphetamine and, in contrast to her trial testimony and the prosecution's contentions at trial, making statements that indicated she was not a reformed addict who had escaped the drug world. Powell testified that before Davis' trial, DCI personnel had learned Powell had recorded her conversation with Morris and were angry with her for doing so. Powell testified that, at the time of the recording, she arrived at Morris' apartment and saw methamphetamine and drug paraphernalia; some time after Powell first spoke with Morris about the murder investigation, Morris and another person present consumed the methamphetamine and continued talking; and audible tapping sounds on the Powell tape were attributed to a razor's cutting the drug into lines. Powell also testified that after Davis' trial, Morris told Powell that Davis had not been involved in the drug transaction as she had testified, but felt compelled to testify against Davis because she believed her cooperation would help her keep custody of her children. Powell claimed that Morris told her that Morris' tape recorder had not malfunctioned during the drug transaction as she had testified at Davis' trial, but that she had deliberately turned it off.

[¶ 13] Morris testified at the hearing and admitted the drug use on that occasion when Powell interviewed her for the murder investigation, but testified that she had admitted drug use at Davis' trial and the Powell interview was the incident that she admitted. The trial court determined that no Brady violation had occurred and denied Davis' motion. This appeal followed.

DISCUSSION

[¶ 14] In Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the Supreme Court set forth the basic principle that the prosecution violates due process by suppressing favorable evidence that is material either to the guilt or to the punishment of the accused, "irrespective of the good faith or bad faith of the prosecution." Id. at 87, 83 S.Ct. at 1196-97. Later the Court extended the Brady rule by holding that the prosecution violates due process by suppressing information concerning the reliability of a key witness when such impeachment evidence would be material to guilt or innocence, finding that when the reliability of a given witness may well be determinative of guilt or innocence, important evidence affecting eredibility may be Brady material. Giglio v. United States, 405 U.S. 150, 153-54, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972). The duty to disclose impeachment and exeulpato-ry evidence applies even though there has been no request by the accused. United States v. Agurs, 427 U.S. 97, 107, 96 S.Ct. 2392, 2399, 49 L.Ed.2d 342 (1976) United States v. Bagley, 473 U.S. 667, 680-81, 105 S.Ct. 3375, 3382-83, 87 L.Ed.2d 481 (1985); Strickler v. Greene, 527 U.S. 263, 280, 119 S.Ct. 1936, 1948, 144 L.Ed.2d 286 (1999). "Moreover, the rule encompasses evidence known only to police investigators and not to the prosecutor' In order to comply with Brady, therefore, the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in this case, including the police" " Strickler, 527 U.S. at 280-81, 119 S.Ct. at 1948 (citing Kyles v. Whitley, 514 U.S. 419, 437-38, 115 S.Ct. 1555, 1567-68, 131 L.Ed.2d 490 (1995)).

[¶ 15] Strickler articulated the underlying philosophy of these decisions in this way:

These cases, together with earlier cases condemning the knowing use of perjured testimony, illustrate the special role played by the American prosecutor in the search for truth in criminal trials. Within the federal system, for example, we have said that the United States 'Attorney is "the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done." Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1814 (1935).
This special status explains both the basis for the prosecution's broad duty of disclosure and our conclusion that not every violation of that duty necessarily establishes that the outcome was unjust.

Strickler, 527 U.S. at 281, 119 S.Ct. at 1948.

[¶ 16] We must determine, therefore, whether the government's failure to disclose evidence favorable to the defendant deprived the defendant of a fair trial under Brady by considering whether the "favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict." Id. at 290, 119 S.Ct. at 1952 (quoting Kyles, 514 U.S. at 435, 115 S.Ct. at 1566). In order to establish a Brady violation, a defendant must demonstrate that the prosecution suppressed evidence, the evidence was favorable to the defendant, and the evidence was material. Helm v. State, 1 P.3d 635, 639 (Wyo.2000). We have previously decided that the materiality of withheld evidence and its possible effect on the outcome of the trial are mixed questions of fact and law. Id. Generally, the denial of a motion for a new trial is reviewed for an abuse of discretion; however, a claim of failure to disclose evidence in violation of Brady is properly reviewed de novo. United States v. Hughes, 33 F.3d 1248, 1251 (10th Cir.1994).

Analysis of Elements

[¶ 17] The first element requires that we determine whether Davis showed that the prosecution suppressed evi-denee. Davis presented testimony showing that DCI knew about the Powell tape before trial. When the prosecution learned about it after trial, it did disclose. A prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police. Kyles, 514 U.S. at 437-38, 115 S.Ct. at 1567. In this case, the Powell tape is admissible to impeach Morris' testimony at Davis' trial that she had used drugs two months before trial when she had actually used drugs more recently and to impeach the DCI agents' testimony vouching for Morris' eredi-bility. The discovery of the Powell tape directly led to the defense's discovery of Powell's post-trial conversation with Morris where Powell alleges that Morris said she had intentionally shut off the tape recorder, and stated different motives for testifying against Davis. Powell's version of Morris post-trial statements contradicts Morris' trial testimony and could potentially be recognized as improperly suppressed Brady evidence. See Paradis v. Arave, 240 F.3d 1169, 1178-79 (Oth Cir.2001). These post-trial contradictions obviously could not have been disclosed before trial, however, and, because they were not in existence before trial, cannot be part of an analysis as to whether the suppression of the Powell tape was a Brady violation. Strickler, 527 U.S. at 283, 119 S.Ct. at 1949. Nevertheless, by showing that the State failed to disclose the Powell tape which did exist before trial, Davis has met his burden on this element.

[¶ 18] The next element, that Davis prove the evidence would have been favorable to him, is also established by the record. Favorable evidence includes impeachment evidence, and the undisclosed Powell tape of Morris' use of drugs is impeachment evidence, particularly so when her use was at a time different than that to which she had testified. The Powell tape is also impeachment evidence because, at trial, the defense had no evidence and could only suggest that Morris' motives were not as pure as she testified. Further, the defense at trial had no evidence with which to challenge the prosecution's bolsterinw of Morris' credibility with the testimony of DCI agents who vouched for Morris' credibility in that she was trustworthy for various reasons including clean urinalyses results and who stated that one agent could hear Davis make inculpatory statements on an inaudible tape. In the hands of defense counsel, the Powell tape's disclosure indicating that DCI knew that Davis was engaging in illegal activities would have been most useful for challenging all of this testimony.

[¶ 19] The final element requires that we focus on the materiality of the undisclosed evidence, mindful that favorable evidence is material if "its suppression undermines confidence in the outcome of the trial." Bagley, 473 U.S. at 678, 105 S.Ct. at 3381. In Kyles, the Court further reviewed the meaning of materiality as it relates to the final result of the trial:

Bagley's touchstone of materiality is a "reasonable probability" of a different result, and the adjective is important. The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence. A "reasonable probability" of a different result is accordingly shown when the government's evidentiary suppression "undermines confidence in the outcome of the trial."

Kyles, 514 U.S. at 434, 115 S.Ct. at 1566 (citing Bagley, 473 U.S. at 678, 105 S.Ct. at 3381) (emphasis added).

[¶ 20] In Strickler, the Court distinguished between finding a "reasonable probability" that the outcome might have been different requiring a reversal and finding a "reasonable possibility" requiring that the conviction be affirmed. 527 U.S. at 291, 119 S.Ct. at 1953. The dissent in Strickler cautioned that the continued use of the term "probability" promoted the likelihood that courts would apply the forbidden "more likely than not" determination and thus violate Kyles, and it proposed that the term be deemed "inevitably imprecise," thus warranting changing the term to a "significant possibility." Id. at 298, 119 S.Ct. at 1956 (Souter and Kennedy, JJ., concurring and dissenting). The differing conclusions on materiality reached by Strickler's majority and dissent in analyzing the particular facts illustrate not only that the preceding discussion is not idle intellectualizing but also that a conclusion regarding materiality may well be entirely subjective when credibility judgments are at issue.

[¶ 21] The subjectivity presented when evaluating the significance of credibility determinations is particularly troublesome in this case where Morris' credibility was the critical issue. Perhaps we could simply dispose of this case by simplistically concluding that had the Powell tape been disclosed, Morris would not have testified that she had used drugs two months earlier, but would have testified that she used them one month earlier; or by agreeing with the trial court that Morris had admitted that she had used drugs on a single occasion and a new trial is not required; or by deciding that the difference in time frames relating to Morris' drug use does not undermine our confidence in the verdict.

[¶ 22] However, our review indicates that the portions of the Morris tape where Davis allegedly made his inculpatory statements are inaudible, and, therefore, Davis' trial was dependent entirely upon Morris' testimony. Impeachment evidence that could be used to discredit such an important witness or cast doubt on her veracity is usually material. As previously discussed, the prosecution presented DCI agent testimony that bolstered Morris' credibility and opined that Davis could actually be heard on the tape. The Powell tape could have been used to discredit that testimony also. "The question is not whether the State would have had a case to go to the jury if it had disclosed the favorable evidence, but whether we can be confident that the jury's verdict would have been the same." Kyles, 514 U.S. at 453, 115 S.Ct. at 1575. Because no evidence other than Morris' testimony established Davis' alleged inculpatory statements, we hold that the undisclosed evidence is material, Davis' conviction is reversed, and this case is remanded for new trial.

      . The propriety of the court's admission of the tape and both agents' testimony are at issue in the appeal only as it relates to materiality of the Brady violation.

      . This murder was unrelated to Wilkie's death. Police believed that the person who had committed a murder at a convenience store may have confided in Morris.

      . Prior inconsistent statements by a witness are admissible under W.R.E. 613(b):
      "(b) Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate him thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party-opponent as defined in Rule 801(d)(2)."
      Monn v. State, 811 P.2d 1004, 1006 (Wyo.1991).

      .
      "The jury is charged with resolving the factual issues, judging the witnesses' credibility, and ultimately determining whether the accused is guilty or innocent. Gayler v. State, 957 P.2d 855, 860 (Wyo.1998); Zabel v. State, 765 P.2d 357, 362 (Wyo.1988). A witness may not, therefore, vouch for the credibility of another witness or a victim. Gayler, 957 P.2d at 860; Curl v. State, 898 P.2d 369, 373-74 (Wyo. 1995)."
      Newport v. State, 983 P.2d 1213, 1215 (Wyo.1999). Whether Davis can be heard on the tape making the precise statements that Morris alleged he made is a question of fact for the jury to determine.

      . In its presentation of its case, the prosecution established Morris as an informant whom the jury could find trustworthy in several ways. First, Morris testified that her motives for acting as a DCI informant were to cooperate for favorable treatment regarding her own arrests for drug violations; to avoid the possibility of losing custody of her children; and to escape her life as a drug addict in the drug world although she forthrightly disclosed that since becoming a DCI informant, she had used drugs once two months before trial. Second, a DCI agent testified and vouched for Morris' credibility. Finally, another DCI agent testified to a question reserved for the jury, that he could hear the male voice making the statements that Morris testified had been made on the tape.


source: Caselaw Access Project

author: EASTAUGH, Justice.

license: Public Domain

text:
    Camille WILLIAMS, f/k/a Camille McVey, Petitioner, v. James CRAWFORD, as Personal Representative of the ESTATE OF William R. McVEY, Deceased, Cynthia Gilbert, and Rachel Evans, Respondents.
    No. S-9791.
    Supreme Court of Alaska.
    Feb. 8, 2002.
    As Amended on Denial of Rehearing June 24, 2002.
    Michael W. Flanigan, Walther & Flanigan, Anchorage, and Steven D. Smith, Law Offices of Steven Smith, Anchorage, for Petitioner.
    Ronald L. Bliss, Bliss, Wilkens & Clayton, Anchorage, for Respondent James Crawford.

      Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, and BRYNER, Justices.
   OPINION

EASTAUGH, Justice.

I. INTRODUCTION

This case is before us for the second time. In Williams v. Crawford, we remanded with instructions that Camille Williams be awarded "one-half of the value of the marital portion of [William MeVey'sl civil service pension-valued as of the date the parties entered into the property settlement agreement, August 12, 1992" On remand, the superior court awarded Camille one-half of the marital share of the pension benefits that William, who died in June 1995, had actually received. Because this award turned on information-the actual date of William's death-not available on August 12, 1992, when the parties entered into their agreement, we vacate the award and remand for further proceedings.

IL FACTS AND PROCEEDINGS

Camille Williams and William McVey divoreed in April 1992. Camille remarried shortly thereafter.

On August 12, 1992 Camille and William entered into a property settlement agreement, which the superior court incorporated into the divorce decree. Paragraph Seven of the agreement stated:

[William] shall be granted all payments under his Civil Service pension during his lifetime. [Camille] shall be granted surviv-orship benefits upon [William]'s death equal to one-third the maximum survivor-ship benefits that may be elected, which means that [Camille] shall receive surviv-orship benefits at [William's] death of at least $6,912 per year, or $576 per month. [William] shall elect survivor benefits and shall be responsible for any required premiums or cost to insure [Camille]'s surviv-orship benefits. This Court shall retain jurisdiction as necessary to enforce these provisions.[]

When William retired two years later, he discovered that federal regulations made Camille ineligible for survivorship benefits, because she had remarried before age fifty-five. Both parties were unaware of this restriction when they entered into the agreement in 1992. Camille therefore moved under Alaska Civil Rule 60(b)(6) to be named the irrevocable beneficiary of William's life insurance policies. The superior court granted Camille's motion. Before comply ing with the superior court's order, William unexpectedly died in June 1995.

After a series of superior court proceedings, Camille appealed to us. Because Camille's "eligibility for the survivorship benefits was one of the fundamental assumptions underlying the property division," we held that Camille was entitled to Rule 60(b)(6) relief. We concluded that

Camille should receive one-half of the value of the marital portion of William's civil service pension-valued as of the date the parties entered into the property settlement agreement, August 12, 1992. This is the most equitable result given the particular facts of this case. We remand this valuation question to the superior court for determination.[]

On remand, Camille argued that our remand instructions to award Camille "one-half of the value of the marital portion of William's civil service pension ... valued as of ... August 12, 1992" required the superi- or court to value William's pension based only on information that was available as of that date. Thus, Camille proposed that the superior court value William's pension by multiplying William's life expectancy as of August 12, 1992 by the expected annual pension benefit, and discounting to present value. Multiplying the resulting figure by cighteen percent-one-half of the marital share of William's pension-to calculate her share of the pension, Camille's request was for an award of $90,017, plus prejudgment interest.

By contrast, the estate argued on remand that the superior court should value William's pension by simply totaling the pension benefits William received-$58,567-before he died in June 1995. Based on this calculation, the estate valued Camille's share of the pension at $10,700.19.

The superior court agreed with the estate. Its July 18, 2000 order concluded:

Because this court understands that Camille is entitled to equitable relief, and because the estate's method of valuation is the one which results in a figure most closely resembling the value of an asset that she knowingly bargained for with the assistance of counsel, this court finds that equity demands adoption of the estate's valuation method. This court further finds that adoption of Camille's valuation method would be profoundly and manifestly inequitable.

On July 19, 2000 the superior court denied Camille's motion to vacate the attorney's fees and costs awards it had entered against Camille before we issued our 1999 opinion.

On July 28, 2000 Camille filed a petition for review asking us to review the superior court's July 2000 orders. The estate did not oppose the petition. We granted Camille's petition for review on September 28, 2000, and ordered briefing.

III. DISCUSSION

A. Standard of Review

"Upon remand of a case by this court it becomes the duty of the lower court to obey the mandate and render judgment in conformity." Whether a lower court on remand has correctly applied our mandate 's a question of law which we review de novo.

B. William's Pension Was Erronecously Valued on Remand.

Camille argues that it was error to value William's pension by considering information that was not available on August 12, 1992, the date we instructed the superior court to use in valuing William's pension. Camille notes that on that date, it would have been impossible to determine the amount of pension benefits William would collect before his eventual death. Thus, Camille argues that the superior court should have valued the pension by multiplying William's life ex-pectaney as of August 1992 by the expected annual pension benefit, adjusting that figure for cost of living allowances, and discounting it to present value.

The estate responds that our remand instructions in Williams required the superior court to award Camille the amount she would have received if the court had divided Willam's pension in August 1992. Citing McDougall v. Lumpkin, the estate argues that "trial courts have discretion to distribute retirement benefits to a non-employee spouse through either a qualified domestic relations order (QDRO) or through a Iump sum payout." The estate further argues that because there were insufficient marital assets in 1992 to satisfy Camille's claim for a lump sum payout-the marital estate exeluding William's pension was valued at approximately $85,000-it would not have been an abuse of discretion to distribute William's pension in August 1992 by entering a QDRO. And although it concedes that " 'an agreement for equitable division of retirement benefits earned during marriage presumptively encompasses survivor benefits, " the estate notes that a QDRO could not have conferred survivor benefits on Camille, because the federal regulations made her ineligible for survivor benefits. The estate therefore concludes that if the superior court had entered a QDRO in August 1992, Camille would have received one-half of the marital share of any pension benefits that William received before his eventual death in June 1995. Thus, the estate argues that it was not error to award Camille one-half of the marital share of the pension benefits William (and his estate) actually received.

Camille's interpretation of our remand instructions is correct. We instructed the superior court to award Camille one-half of the marital share of William's pension valued as of August 12, 1992, when the parties entered into their agreement. We have previously referred to the value of a defined benefit pension as its actuarial value, determined by multiplying the employee's life expectancy by the expected annual benefit, and discounting it to present value. It is appropriate to apply this same valuation method here. We specified August 12, 1992 as the date of valuation, because we intended to give effect to the parties' agreement to divide the pension benefit as of that date. We did not intend that the value of William's pension would be calculated based on the actual date of his death, a date that was, of course, unknown to the parties on August 12, 1992 when they entered into their agreement.

We therefore conclude that it was error to rely on remand on the actual date of William's death in valuing the pension. Accordingly, we reverse and remand for further proceedings.

On remand, the superior court should determine the actuarial value of William's pension on August 12, 1992 by multiplying William's life expectancy on that date by the expected annual pension benefit, and by discounting to present value. In calculating that value and determining William's life ex-pectaney as of August 12, 1992, however, the superior court may consider evidence relevant to the state of William's health to the extent it bears on his life expectancy and to the extent it was known on August 12, 1992.

The superior court concluded on remand that it would be inequitable to ignore the amount actually paid on William's pension, an amount dependent on the actual date of his death.

We disagree with that conclusion, for a number of reasons. First, looking to William's actual state of health as of August 12, 1992 will minimize the chance of overvaluing the prospective pension benefit. And to the extent William's health status reduces the value of his pension benefit, this approach reduces any apprehension that Camille's ultimate share of the benefit will be disproportionately large compared to the value of the estate apart from the pension benefit,. Likewise, to the extent the superior court based its conclusion of inequity on the parties' expectations as of August 12, 1992, William's health status is particularly relevant.

Second, basing the award on the actual date of death leads to inequity not recognized by the superior court. Its conclusion of inequity turns in part on its finding that Camilie "knowingly bargained ... with the assistance of counsel" for a nearly equal division of the pension benefit. But to be consistent, if the actual date of death can be taken into account for one purpose, it must also be taken into account for equivalent purposes. Per the superior court's analysis, the values of what the parties respectively bargained for would have to be based on the actual date of death. Knowledge in August 1992 that William would die in 1995 would have made the survivor benefit bargained for by Camille more valuable and would have diminished the value of the benefit bargained for by William. Inconsistent use of the prospective date of 'death contributed to the inequity perceived by the superior court.

Finally, the superior court does not mention another post-agreement cireumstance that bears on the equity resulting from our prior remand instruction. After the parties learned of Camille's ineligibility for survivor-ship benefits, Superior Court Judge Larry D. Card granted Camille post-judgment relief and ordered William to make Camille the beneficiary of his life insurance policies. William died before complying.

C. Denial of Camille's Motion to Vacate Awards of Fees and Costs Was Error.

We also hold that it was an abuse of discretion to deny Camille's post-remand motion to vacate the July 1997 awards of attorney's fees and costs. Those awards were based on the March 1997 order that denied Rule 60(b)(6) relief to Camille. When we reversed the March 1997 order in 1999 and remanded to determine the value of the pension as of August 12, 1992, the July 1997 fees and costs awards should have been vacated as a matter of course.

IV. CONCLUSION

For these reasons, we VACATE the July 18, 2000 decision and order valuing William McVey's pension and the July 19, 2000 order denying Camille's motion to vacate the attorney's fees and costs awards. We REMAND for further proceedings consistent with this opinion.

CARPENETT, Justice, not participating.

      . 982 P.2d 250, 256 (Alaska 1999) (emphasis added).

      . See id. at 252.

      . See id.

      . Id.

      . Id.

      . Id.

      . Id.

      . Id.

      . Id.

      . Thehistory of proceedings before Camille's first appeal is fully set out in Williams, 982 P.2d at 252-53.

      . Id. at 256. We reversed "the superior court's conclusion that Camille had waived her entitlement to relief under Rule 60(b)." Id. at 255.

      . Id. at 256.

      . William actually received payments totaling only $41,412.20 during his lifetime. But under William's pension plan, a retiree's estate is entitled to a lump sum death payment of "any amount by which [the retiree's] contributions to the retirement fund, plus any interest due, exceed the total amount of the annuity ... paid [to the retiree} and all other eligible survivors...." Because William's contributions to the retirement fund totaled $58,567, an amount greater than the total amount of benefits William received, the estate conceded that William's pension should be valued at $58,567 to account for the lump sum death payment received by Wil-Ham's estate.

      . Alaska R.App. P. 402. Although we accepted this case as a petition for review, the superior court's July 18, 2000 order was essentially a final judgment from which a direct appeal could have been taken. AS 22.05.010; Alaska R.App. P. 202.

      . Davis v. Hallett, 630 P.2d 1, 2 (Alaska 1981) (quoting State v. Salinas, 362 P.2d 298, 301 (Alaska 1961)).

      . See Bennett v. Bennett, 6 P.3d 724, 726 (Alaska 2000) (holding that proper interpretation of court order is question of law).

      . 11 P.3d 990 (Alaska 2000).

      . Id. at 996 (citing Nicholson v. Wolfe, 974 P.2d 417, 425-26 (Alaska 1999)).

      . See Nicholson, 974 P.2d at 425-26 (describing abuse of discretion as relating to a QDRO: "Generally courts have approved of lump sum payouts where there are 'marital assets sufficient to satisfy the non-employee spouse's claim without undue hardship on the employee spouse.' ") (quoting Laing v. Laing, 741 P.2d 649, 657 (Alaska 1987)).

      . McDougall, 11 P.3d at 996 (quoting Zito v. Zito, 969 P.2d 1144, 1148 (Alaska 1998)).

      . A defined benefit pension provides "systematically for the payment of definitely determinable benefits to the employees over a period of years, usually for life, after retirement. Retirement benefits generally are measured by and based upon such factors as years of service and compensation received by employees." Barta H. GorpBERc, VaLuation or Divorce Assers § 9.2, at 232 (1984).

      . Foster v. Foster, 883 P.2d 397, 400 n. 4 (Alaska 1994).

      . See, e.g., Boyd v. Boyd, 116 Mich.App. 774, 323 N.W.2d 553, 556 n. 2 (1982) ("[Wle do not foreclose the introduction of evidence tending to show that a particular individual is likely to have a longer or shorter life expectancy than is reflected by the statutory mortality tables or, indeed, any mortality table used to determine expected lifespan.").

      . Alaska R. Civ. P. 60(b)(5) (providing that "the court may relieve a party ... from a final judgment, order, or proceeding" if "a prior judgment upon which it is based has been reversed or otherwise vacated").


text:
    LEXINGTON INSURANCE COMPANY, a Delaware corporation, Westchester Fire Insurance Company, a New York corporation, Agricultural Insurance Company, a Delaware corporation, The Travelers Indemnity Company of Illinois, an Illinois corporation, and Fireman's Fund Insurance Company, a California corporation, Appellants, v. LINDAHL CONSTRUCTION AND ENGINEERING, INC., an Alaska corporation, Steven M. Lindahl, an individual, and the State of Alaska, Appellees.
    No. S-9701.
    Supreme Court of Alaska.
    May 24, 2002.

      William Grant Callow, Law Offices of William Grant Callow, P.C., Anchorage, and Paul V. Esposito, Clausen Miller, P.C., Chicago, Ilinois, for Appellants.
    Steven M. Lindahl, pro se, Holmes Beach, Florida.
    Randy M. Olsen, Assistant Attorney General, Fairbanks, and Bruce M. Botelho, Attorney General, Juneau, for Appellee State of Alaska.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

EASTAUGH, Justice.

I. INTRODUCTION

Fire damaged the Denali Princess Lodge in 1996. Five insurance companies paid the lodge owner under policies covering property and business interruption loss. The insurance companies then sued the State of Alaska, claiming that it negligently approved building plans which did not satisfy the 1979 Uniform Building Code (UBC) and negligently failed to require a one-hour fire-resistive enclosure around a lodge furnace. They also sued the contractor that built the lodge, claiming that it negligently failed to follow the building code. The superior court granted summary judgment to the defendants, holding that the 1985 UBC applied and that it did not require a one-hour fire wall around the furnace. We affirm, because there are no genuine issues of material fact and the defendants were entitled to judgment as a matter of law.

II. FACTS AND PROCEEDINGS

In 1986 Princess Tours hired Lindahl Construction and Engineering, Inc., as the general contractor for its new hotel complex near Denali National Park. Jerry Moberg, Princess's project engineer, began discussing the project and code requirements with a state deputy fire marshal, Charles Lee Davis, in May 1986. At the time of those early conversations the 1979 Uniform Building Code was still in effect in Alaska. It was not until August 2, 1986 that the 1985 UBC became effective in Alaska) On July 31, 1986 Princess submitted its application for plan review to the state's Department of Public Safety, Fire Marshal's Office, and paid the fees for the review. It did not submit the project plans with the application. On the same day Lindahl and Moberg met with another state deputy fire marshal, Ernest Misewiez, to discuss the project. Lindahl wrote a letter to Misewicz confirming the discussion: "To confirm the topics discussed in your office on 7/81/86, I have enclosed a list of items that were discussed for your records...." The letter listed several items of discussion, including "18. The entire project will be reviewed under the 1979 U.B.C. codes." Lindahl testified in his deposition that he believed this statement was a request by Princess to have the project reviewed under the 1979 UBC, and that it did not reflect an affirmative answer by the state to apply the 1979 UBC.

On August 12, 1986 Deputy Fire Marshal Davis spoke with Moberg by telephone. Davis asked Moberg what version of the UBC Princess was using to formulate its plans. Davis told Moberg that if Princess wanted the state to apply the 1979 UBC to the project, Princess needed to submit a letter requesting application of the 1979 UBC. Although the state received on August 15, 1986 Lindahl's letter recounting the July 31 meeting between Lindahl, Moberg, and Misewiecz, the supervisor of the State Fire Marshal's Office later stated in an affidavit that the state did not receive any other writing representing Princess's desire to have the building plans reviewed under the 1979 UBC.

The building plans divided the hotel into four buildings: Building 1 contained hotel rooms, a lobby, a gift shop, and offices; Building 2 contained hotel rooms; Building 3 contained the restaurant; and Building 4 housed employees. Building 4 was separate from the others and was the only building to survive the fire.

By letter of September 11, 1986 Deputy Fire Marshal Misewicz authorized Lindahl to begin foundation work for Buildings 1 and 2, but forbade further work until complete plans for the project were received and approved. The letter warned that the distance between Building 1 and Building 3 was insufficient to meet the standards set out in the 1985 UBC. Princess did not communicate any objection to this application of the 1985 UBC to the lodge project. Misewicz reviewed the plans for Buildings 1 and 2 on September 28 under the 1985 UBC and classified Buildings 1 and 2 as "Occupancy: R-1." He issued a certificate of plan review on September 29. On October 22, 1986 Lindahl wrote Misewicz regarding the classification of the lobby and reception area in Building 1. By letter of October 28, 1986 Misewiecz replied, stating that the "lobby/reception area/foyer" of Building 1 was "considered one area" and that "[the 1985 Uniform Building Code classifies this area as an Assembly 3(A3) [oJecupancy." Princess did not object to this classification.

In March 1996 fire destroyed three of the Denali Princess Lodge buildings. As a result of the fire Lexington Insurance Company and four other insurance companies (collectively "Lexington") paid Princess Tours more than $18,000,000. The state fire inspector concluded that the fire started at the furnace in the crawlspace of Building 1.

In March 1998 Lexington filed a superior court complaint that alleged, among other things, that Lindahl Construction and Engineering, Inc., breached its general construction contract with Princess Tours by failing to comply with the owner-approved plans and specifications, and by failing to comply with all applicable building and fire codes, including the requirement of a one-hour fire wall around the furnace where the fire allegedly started. The complaint also alleged that Lindahl Construction and Steven Lindahl individually failed to exercise due care in constructing the four buildings, causing the fire to spread from the crawlspace under Building 1 to Buildings 2 and 8. Finally, the complaint alleged that the State of Alaska failed to exercise due care in reviewing the plans submitted by Lindahl Construction for Building 1 because the plans contained no provision for a one-hour fire wall around the furnace where the fire allegedly started.

In September 1999 the state moved for summary judgment; it argued that the 1985 UBC was the applicable building code and that the 1985 UBC did not require fire walls around the furnaces in the Princess Lodge because the furnaces were located in an assembly area (A-3) or a business area (B-2). In September 1999 Lindahl, representing both his construction company and himself pro se, moved for summary judgment. He also argued that fire walls were not required under the 1985 UBC for the lobby area of Building 1. He then adopted the state's similar motion, and the state adopted Lin-dahl's motion.

Lexington argued in its opposition to the summary judgment motions that the 1979 UBC applied to the Denali Princess Lodge project because the application for plan review was submitted to the Fire Marshal's Office on July 81, 1986, two days before the 1985 UBC took effect, and because Deputy Fire Marshal Misewicz had agreed to apply the 1979 UBC. Lexington also argued that the furnace was located in an R-1 area and that the 1979 and 1985 UBC both required one-hour fire walls around furnaces in that area. The state argued in response that Misewicz did not err in reviewing the Building 1 plans under the 1985 UBC and that "tlhe 1985 UBC was the proper code to govern the construction of Building 1."

The superior court granted summary judgment in April 2000 to the state, Lindahl Construction, and Steven Lindahl individually. It concluded that as a matter of law the 1985 UBC applied to the Denali Princess Lodge project. It also held that the state's A-8 classification of the lobby area was not legally infirm or an abuse of discretion, and that the state was not negligent in failing to require a one-hour fire wall because the 1985 UBC did not require a fire wall for furnaces built in A-8 areas.

The state moved for attorney's fees. Lexington opposed, claiming that the state's attorneys had devoted twice as much time to the case as Lexington's attorneys. The state replied that Lexington's comparison of its hours spent on the case with the state's was faulty because much of Lexington's legal work would have been done before Lexington filed suit. The state also filed a motion to require Lexington to disclose the total time spent on the case from the time of the fire. Without deciding this last motion, the superi- or court entered final judgment for all defendants and awarded the state $54,471.12 for attorney's fees and paralegal fees.

Lexington appeals the grant of summary judgment to the defendants and the award of attorney's fees.

III, DISCUSSION

A. Standard of Review

We review the dismissal of Lexington's claims on summary judgment de novo. A summary judgment movant must establish that there "are no genuine issues of material fact and that it is entitled to judgment as a matter of law." We will draw all reasonable factual inferences in favor of Lexington, the nonmoving party. Summary judgment is inappropriate if "the parties genuinely dispute any facts material to a viable legal theory." We apply our independent judgment to questions of law, adopting " 'the rule of law that is most persuasive in light of precedent, reason, and policy.

We review an award of Alaska Civil Rule 82 attorney's fees for an abuse of discretion.

B. The Superior Court Did Not Err in Concluding that the 1985 UBC Applied to Building 1.

1. No factual dispute about whether the state was required to review the Denali Princess Lodge building plans under the 1979 UBC is material.

Lexington argues that there is a genuine issue of material fact whether Lexington and the state agreed that the 1979 UBC would govern the Denali Princess Lodge project. In making this argument Lexington relies in part on the July 31, 1986 letter to Deputy Fire Marshal Misewiecz in which Lin-dahl. writes: "The entire project will be reviewed under the 1979 U.B.C. codes." The state argues that the letter was only a recitation of discussion topics and not an agreement to apply the 1979 UBC to the project. The state also claims that once Princess received oral advice that the 1985 UBC was already in effect and would control, Princess offered no objections to the application of the later code. The supervisor of the State Fire Marshal's Office provided an affidavit stating that after Moberg and Davis spoke on August 12, 1986, Princess made no written requests that the plans be reviewed under the 1979 UBC.

The grant of summary judgment to the state must be overturned if we determine that any genuine factual disputes are material. Viewed in a light most favorable to Lexington, there may be a factual dispute about the significance of Lindahl's July 31, 1986 letter to the state. But Lexington's complaint alleged a negligence cause of action against the state based on the state's review and approval of the building plans and the state's subsequent fire safety inspections. Lexington reiterated its negligence claim in its opposition to the state's motion for summary judgment; Lexington stated that "Iolne of the reasons [Lexington] claim[s] [the state] was negligent in this case is because Mr. Misewiesz reviewed this project under the wrong edition of the Uniform Building Code at the time he did his building plans review." Lindahl's letter may indicate that it was contemplated or even expected during initial discussions between Lindahl, Moberg, and Misewicz that the 1979 UBC would apply. But as a matter of law it was the 1985 UBC that was in effect when Mi-sewiez actually reviewed the plans in late September 1986.

Lexington's cause of action necessarily assumes that the state breached the applicable standard of care by failing to apply the 1979 UBC and by classifying the commercial area as A-3 rather than R-1. At the time of his plans review in September, however, Deputy Fire Marshal Misewiecs had no legal obligation or authority to apply the 1979 UBC because the 1985 UBC was already in effect. It was the 1985 UBC, along with the classification of the commercial area, that governed Lexington's negligence claim. Perhaps if Lexington had asserted a negligent misrepresentation claim or a contract claim, the state's earlier alleged agreement to apply the 1979 UBC, and its initial characterization of the commercial area as R-1, would have raised a genuine, material factual dispute. But because Lexington actually asserted only a negligence claim, its claim turns on whether the state breached a duty at the time it approved the plans; pre-approval events are of no consequence. Since Deputy Fire Marshal Misewicz's application of the 1985 UBC after it became effective did not breach the negligence standard of care, we do not need to decide whether he arguably could have been required to apply the 1979 UBC by agreement with Princess or otherwise.

Although we need not examine whether there is a genuine issue of material fact about whether the parties agreed to apply the 1979 UBC, we note that basic contract principles cast serious doubt on Lexington's claim that the state entered into a legally binding agreement to apply the earlier UBC. Lexington cites Bloomstrand v. State for the proposition that silence may be deemed an admission when a silent person could be reasonably expected to speak. That case involved constitutional and criminal law issues related to a defendant's right to remain silent in a homicide investigation; it is of no relevance here.

Instead, it is instructive to consider Lexington's claim of an alleged agreement with the state in a contractual environment. We have previously held in the context of summary judgment that to demonstrate the existence of a contract or legally binding agreement, a party must point to evidence showing that the opposing party "unequivocally accepted an offer by words and actions that objectively manifested an intent to be bound." Without this showing we will not disturb the summary judgment. We have also held that silence operates as acceptance of an agreement only in cases where a party has " 'reason to understand that assent may be manifested by silence ..., and the [party] in remaining silent ... intends to accept the offer?'" The state's silence upon receiving Lindahl's July 31, 1986 letter does not demonstrate the type of clear knowledge of an agreement required to bind the state. Also, Lexington does not make a sufficient showing through the state's actions or written or spoken words that the state assented to an agreement that would potentially subject it to the type of liability Lexington now alleges.

Lexington further argues that Deputy Fire Marshal Misewiez's August 20, 1986 letter to Lindahl seeking clarification of work relating to Building 4 evinced the state's intent to enter into an agreement to apply the 1979 UBC to the entire project. The state claims that "[the employee housing building [Building 4] ... had already been started [and] was being constructed according to the 1979 UBC." Accordingly, it would not be surprising that the August 20 letter referred to the 1979 UBC. In any event, the state's letter was addressed to Lindahl and did not create any contractual obligation with Princess.

For the reasons discussed above, any dispute regarding the alleged agreement to use the 1979 UBC is not material to Lexington's negligence claim. We consequently hold that the superior court did not err by granting summary judgment to the state.

2. The vested rights approach to determining which building code applied to Building 1 does not apply here.

Lexington asks us to adopt the vested rights approach for determining whether the 1979 UBC or the 1985 UBC was the appropriate building code for the state's review of the Denali Princess Lodge project. It asserts that under the vested rights approach, a property owner has a right to application of the building code that is in effect when the owner applies for plan review. Lexington argues that we should adopt this rule in Alaska because it produces a bright line test that is easy to administer. Although it would be a matter of first impression for this court, we do not need to decide here whether to adopt this approach for Alaska. The vested rights approach is the minority rule in other jurisdictions. It requires not merely an application by the owner, but a substantial change in position in reliance on the old law. Lexington does not argue that Princess changed its behavior in reliance on any expectation that the state would apply the 1979 UBC. Princess remained free to build the lodge to standards exceeding the requirements of the 1985 UBC, and the state did not prevent Princess from building a fire wall around the furnace. Because Lexington would not prevail even if we applied the vested rights approach, there is no reason for us to decide whether to adopt it for Alaska.

C. The Superior Court Did Not Err in Holding that the Fire Marshal Correctly Classified the Lobby as an Assembly-3 Area.

Lexington argues that even if the 1985 UBC applied, a one-hour fire wall was still required. The 1979 UBC and the 1985 UBC both state that "[e]very room containing a boiler, central heating plant or hot-water supply boiler in Division 1 Occupancies [which include areas characterized as R-1] shall be separated from the rest of the building by not less than a one-hour fire-resistive occupancy separation." Lexington therefore reasons that because Deputy Fire Marshal Misewiez classified the lobby area of Building 1 as R-1 in his September 1986 plan review, the one-hour fire wall was necessary since both versions of the UBC required it.

The state argues that Deputy Fire Marshal Misewiez's October 28, 1986 letter to Lindahl stating that "[the 1985 Uniform Building Code classifies this area as an Assembly 3(A8) occupancy" was sufficient to classify the area as A-8 and not R-1L. It argues that Misewicz's classification of the area as A-3 was bolstered by the opinions of other professional engineers and architects. Also, the state notes that fire inspections of the premises in subsequent years classified the area as A-8 or B-2, confirming that Misewiez's classification of the area as A-8 was not in error.

To prevail on its negligence claim against the state, Lexington must demonstrate that the state breached some duty owed to Lexington-that it misinterpreted or misapplied the law. The superior court correctly noted that it is a question of law whether the occupancy classification assigned to the lobby was correct, Section 501 of the UBC gave the fire marshal the authority to classify Building 1. Misewiez classified the lobby as A-8 in his October 28, 1986 letter. Although Lexington continues to maintain that there is a genuine issue of material fact about the lobby's proper classification, Lexington has offered no evidence that the lobby should have been classified as R-1 or that it was incorrectly classified in the October 23, 1986 letter or during state inspections in subsequent years.

Lexington argues that the state, by first assigning the R-1 classification to Building 1 during the initial review, was not permitted to adjust its classification in light of additional information about the building. Lexington's interpretation defies the clear words of both editions of the UBC, which state that "any question [regarding occupancy] shall be classified by the building official." Lexington does not argue that Misewiez's classification of the lobby as A-3 was itself incorrect, and neither code prohibits such a classification. Lexington only argues that Misew-icz's first review classified the lobby as R-1 and that his later classification of the lobby as A-8 was impermissible. Further, if Lexington's argument were the law, it would impose an undue burden on the review of building plans and inspection of buildings by state officials. Because section 501 of the 1985 UBC clearly gave the fire marshal the authority to classify the lobby in Building 1, we hold that the state's original classification of the lobby as R-1 does not create a genuine issue of material fact, especially in light of Misewiez's October 28, 1986 classification of the area as A-8.

D. The Superior Court Did Not Abuse Its Discretion in Awarding Attorney's Fees to the State.

Applying the twenty percent standard for cases resolved without trial, the superior court awarded the state Civil Rule 82 fees of $54,471.12. The award was twenty percent of $272,855.58, the value the state attributed to the services of Department of Law attorneys and paralegals.

Lexington argues that this award was excessive. It reasons that the hours the state claims it spent-1,446.4 hours by its attorneys and 767.6 hours by its paralegals-greatly exceeded the 694 hours Lexington's attorneys spent during the same period. Lexington does not separately attempt to show that it was error to award paralegal fees. The state argues that the time its attorneys spent was not excessive, and that a fair comparison would require Lexington's attorneys to document the total time they spent on the litigation, including time they spent before they filed the complaint.

Lexington does not challenge any specific part of the 1,446.4 hours of attorney time reported by the state, but argues only that the total was excessive. An award of attorney's fees under Civil Rule 82 will be reversed "only upon a showing of abuse of discretion or a showing that the award [was] manifestly unreasonable." Because Lexington has not demonstrated that the amount awarded was excessive, that the twenty percent standard was the incorrect standard, or that the state's attorneys' hours were excessive, we hold that the superior court did not abuse its discretion in awarding attorney's fees to the state.

Finally, Lindahl seeks an award of attorney's fees from Lexington. Because he is a pro se litigant, Lindahl is not entitled to attorney's fees.

IV. CONCLUSION

We AFFIRM the superior court's grant of summary judgment in all respects and AFFIRM its award of attorney's fees.

      . 13 Alaska Administrative Code (AAC) 50.020 (1986).

      . Reeves v. Alyeska Pipeline Serv. Co., 926 P.2d 1130, 1134 (Alaska 1996).

      . Id. (citing Zeman v. Lufthansa German Airlines, 699 P.2d 1274, 1280 (Alaska 1985)).

      . Id. (citations omitted).

      . McGlothlin v. Municipality of Anchorage, 991 P.2d 1273, 1277 (Alaska 1999) (citations omitted).

      . Bockness v. Brown Jug, Inc., 980 P.2d 462, 465 (Alaska 1999).

      . Caudle v. Mendel, 994 P.2d 372, 374 (Alaska 1999).

      . McGlothlin, 991 P.2d at 1277.

      . The premise of Lexington's claim is that the state owes owners a duty, enforceable in tort, to advise them of their noncompliance with applicable building code provisions. In view of our decision in this case we have no occasion to endorse or reject this premise.

      . See infra Part IILB.2 for a discussion of the classification of Building 1.

      . 656 P.2d 584, 588 (Alaska App.1982).

      . Id. at 587-89.

      . Brady v. State, 965 P.2d 1, 8 (Alaska 1998) (citations omitted).

      . Id.

      . Id. at 9 (quoting Restaremrnt (Secomp) or ConTracts § 69 (1979)). See also 1 M. Perito, Coren on Contracts § 3.18, at 402-07, § 3.21, at 414 (1993) (silence as acceptance usually limited to cases where conduct of party denying contract or agreement would lead other to reasonably believe that silence would be sufficient, such as where party "is so certain that the [other] will accept that the [other's] silence will be taken as acceptance").

      . Lexington cites State ex rel. Ogden v. City of Bellevue, 45 Wash.2d 492, 275 P.2d 899, 901-02 (1954), in support. Ogden involved a zoning ordinance and not a building code. We do not consider how the vested rights approach might apply in the context of building codes because Lexington's argument fails even if there is no difference in the legal applicability of the rule in the two separate contexts.

      . Relay Improvement Ass'n v. Sycamore Realty Co., 105 Md.App. 701, 661 A.2d 182, 188-89 (1995).

      . UBC §§ 1201, 1212 (1979, 1985).

      . Wickwire v. Arctic Circle Air Servs., 722 P.2d 930, 932 (Alaska 1986) ("'To make out a prima facie case of negligence, Wickwire needed to present evidence on each of the following elements: duty, breach of that duty, proximate cause and damages."); contra Mesiar v. Heckman, 964 P.2d 445, 452 (Alaska 1998) ('Heckman cites no cases, and we are aware of none, holding that mere negligence by an agency charged with a general public duty of resource management supports a claim for damages by an affected resource user.").

      . Section 501 of both the 1979 UBC and the 1985 UBC states that "[a]ny occupancy ... about which there is any question shall be classified by the building official." UBC § 501 (1979, 1985).

      . UBC § 501 (1979, 1985).

      . Id.

      . Alaska R. Civ. P. 82(b)(2) (providing that the court "shall award the prevailing party in a case resolved without trial 20 percent of its actual attorney's fees which were necessarily incurred").

      . Feichtinger v. Conant, 893 P.2d 1266, 1268 (Alaska 1995) (citations omitted).

      . Alaska Fed. Sav. & Loan Ass'n of Juneau v. Bernhardt, 794 P.2d 579, 581-82 (Alaska 1990).


text:
    IN RE 2001 REDISTRICTING CASES.
    No. S-10615.
    Supreme Court of Alaska.
    May 24, 2002.

      Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   Order

In consideration of the appeal from the May 9, 2002 final judgment of the superior court, including its Memorandum and Order of May 9, 2002, and after hearing oral argument on May 24, 2002,

IT IS ORDERED:

1. The Redistricting Board issued its Amended Final Plan and Proclamation of Redistricting on April 25, 2002 after this court issued its March 21, 2002 order holding unconstitutional several aspects of the board's June 18, 2001 Proclamation Plan and remanding. Because the board's Amended Final Plan (the plan) fully complies with our March 21 order and is not otherwise unconstitutional, we AFFIRM the superior court's May 9, 2002 order upholding the plan. We adopt the attached portions of Superior Court Judge Mark Rindner's May 9 decision and provide the following additional reasons for our decision.

2. The Luper appellants argue that the 9.96% maximum statewide deviation in the plan is too great, and that positive deviations in the Kenai Peninsula Borough and Anchorage Bow! districts are also unconstitutionally excessive. As to Anchorage, their claim is meritless: we ordered the board to make a good faith effort to reduce deviations across the Anchorage Bowl districts, and the board has clearly done so. The remaining challenges could have been raised against the original Proclamation Plan but were not; thus they cannot be raised for the first time at this late date. Accordingly, we need not decide whether statewide deviations under 10% remain prima facie constitutional following the 1998 amendment to article VI, section 6.

3. The Luper appellants argue that the Eagle River-Chugiak area is a socio-econom-ically integrated area that should not have been divided, and they object to this community being combined with the other communities in House Districts 16, 18, and 32. While the Eagle River-Chugiak area is socio-eco-nomically integrated, its residents have no constitutional right to be placed in a single district. The only relevant related inquiry is whether the districts in which Eagle River-Chugiak was placed are socio-economically integrated.

House District 18 is sufficiently socioeconomically integrated as a matter of law because it lies entirely within the Municipality of Anchorage. House District 16 is socioeconomically integrated because it combines communities within the Municipality of Anchorage with areas north and east of the Municipality. House District 32 is socioeconomically integrated because communities within the Municipality of Anchorage are so-cio-economically integrated as a matter of law, and we have previously upheld a district combining the northern Kenai peninsula with Anchorage.

The Luper appellants also argue that the natural and local government boundaries of the Eagle River-Chugiak area should have been "recognized." But the plain language of the Alaska Constitution indicates that respecting local government boundaries is discretionary. Further, the appellants have not demonstrated that any failure by the board to follow natural boundaries violates article VI, section 6. As Judge Rindner observed, "respect for neighborhood boundaries is an admirable goal," but "it is not constitutionally required and must give way to other legal requirements. Therefore, the districts containing the Eagle River area are not unconstitutional in any respect.

4. The Luper appellants argue that two "appendages" along the southwest and southeast borders of House District 18 render this district non-compact, and that the southwest appendage also renders House District 28 non-compact. But the Luper appellants propose to remedy the southwest appendage by placing all of Government Hill in District 28. This would substantially increase the population deviations between these districts and would thereby violate our prior order requiring "minimal population deviations" in Anchorage. Accordingly, we hold that this appendage does not render the district non-compact. We further hold that the Luper appellants' challenge to the southeast appendage is not timely.

5. Finally, the Luper appellants contend that House District 382 is non-compact because it is too large, much of its area is unpopulated and roadless, and its population is unevenly distributed. But neither size nor lack of direct road access makes a district unconstitutionally non-compact, and population distributions are largely irrelevant to the compactness inquiry.

6. We therefore conclude that House Districts 18, 28, and 32 are constitutional in all respects.

Entered at the direction of the court.

APPENDIX

IN THE SUPERIOR COURT FOR THE STATE OF ALASKA THIRD JUDICIAL DISTRICT AT ANCHORAGE

IN RE 2001 REDISTRICTING CASES, Plaintiffs, v. REDISTRICTING BOARD, et al, Defendants.

Consolidated Case No. 3AN-01-8914 CI

1KE-01-0316 CI 8AN-01-8996 CI

4FA-01-1592 CI 8AN-01-8908 CI

4FA-01-1608 CI 3AN-01-9026 CI

3V A-01-0040 CI 8AN-01-8995 CI

MEMORANDUM AND ORDER REGARDING AMENDED FINAL REDISTRICTING PLAN

On March 22, 2002, this court remanded the June 18, 2001 Final Plan and Proclamation for Redistricting to the Alaska Redistricting Board (the Board) for formulation of a new final plan complying with the Order of the Alaska Supreme Court issued March 21, 2002. In that order the Alaska Supreme Court found certain districts of the Board's plan unconstitutional and directed the Board to reconsider other aspects of the plan. Pursuant to these orders, the Board reconvened on April 12, 18, and 18, 2002 and unanimously passed an amended Plan that it believed complied with the order of the Supreme Court.

On April 19, 2002 the Board filed a motion to expedite notice of compliance and request for entry of final judgment. In light of the upcoming candidate filing deadline for the 2002 elections of June 1, 2002 and in accordance with the requirements of Article VI, Section 11 of the Alaska Constitution, which requires this court to expedite its redistricting decisions, "affording them priority over all other matters," this court ordered that any objections to the Board's motion be filed by May 1, 2002. The Board's response was ordered to be filed by May 8, 2002 with the expectation that a decision would be entered by May 13, 2002. In order to provide notice of this schedule to the greatest extent possible, the Board was ordered to post the court-imposed schedule on its website.

After receiving the objections to the Plan discussed below this court held a status conference on May 6, 2002 to discuss the need for further proceedings in this case. Notice of the status hearing was again posted on the Board's website. At the May 6, 2002 status conference the parties disputed whether a further evidentiary hearing would be needed or whether the legality of the plan could be decided based on the pleadings of the parties. This court indicated that it would review the pleadings onee the Board had filed its response and would issue a decision by May 10, 2002 indicating whether a further evidentiary hearing was needed and, if so, on what issues. In the event an evidentiary hearing was necessary the hearing was tentatively scheduled for May 18, 2002.

Having reviewed the objections to the Board's amended plan and the Board's response to those objections, this court concludes that no evidentiary hearing is necessary to resolve the objections to the Amended Redistricting Plan. This court further concludes that the Amended Redistricting Plan fully complies with the Order of the Alaska Supreme Court dated March 21, 2002 and is constitutional in all respects.

The objections to the Board's amended plan fall into three categories. First, the court has received a number of letters from various individuals who, for the most part, were not parties to the original litigation.

Most of these letters are from residents of Chugiak or Eagle River who complain about the manner in which these areas were placed into house and/or senate districts. Second, objections have been filed by certain Anchorage plaintiffs (those plaintiffs known as the Luper Plaintiffs in previous proceedings in this case along with the Municipality of Anchorage and Terry Martin). The concerns raised by these plaintiffs mirror many of the concerns raised in the letters discussed above. The Luper plaintiffs also contend that House Districts 23 and 18 are not constitutionally compact; that the plan violates the requirements of equal representation; and that District 82 is not compact....

Each of these objections to the amended final plan will be discussed.

A. Citizen Letters

Six of the seven letters received by the court are from Chugiak or Eagle River residents who primarily complain that their neighborhood boundaries were not respected. Some of the authors complain that they are part of a house district, which includes the residents of the Matanuska-Susitna Valley. Others complain that Eagle River is a distinct neighborhood that should not be joined with other neighborhoods in Anchorage. The June 18, 2001 plan originally proposed by the Board placed the Eagle River-Chug-iak area into two complete house districts, neither of which contained population from the Matanuska-Susitna Valley. A purported justification for this plan was the need to respect neighborhood boundaries in the Anchorage area. This court found House District 16 under the June 18, 2001 plan to be insufficiently compact despite the Board's effort to justify the shape of that district on the need to preserve neighborhoods. The Alaska Supreme Court also rejected the Board's position that respect for neighborhood boundaries justified the deviations in the Anchorage districts, holding "Anchorage neighborhood patterns cannot justify 'substantial disparities' in population equality across Anchorage districts." See Supreme Court Order No. 89 (March 21, 2002), at pp. 8-9. While respect for neighborhood boundaries in the redistricting process is an admirable goal, it is not constitutionally required and must give way to other legal requirements.

The Alaska Supreme Court also rejected the notions that communities within the Anchorage area are socially and economically distinct. The court held: "Anchorage is by definition socio-economically integrated and its population is sufficiently dense and evenly spread to allow multiple combinations of compact contiguous districts with minimal population deviations." Id. at p. 9; see also Groh v. Egan, 526 P.2d 868, 878-79 (Alaska 1974). The Alaska Supreme Court further recognized the permissibility of combining portions of the Matanuska-Susitna Borough with the Municipality of Anchorage noting that "any neighboring areas north, east or south of the combined municipalities would meet the constitutional requirement of relative socio-economic integration." Supreme Court Order No. 89 at p. 4-5, n. 7. Implicit in the Supreme Court's order is the notion that it would be constitutionally permissible for the Board to combine portions of the Municipality of Anchorage with portions of the Ma-tanuska-Susitaa Borough.

Some of the letter writers have also complained about Senate District P arguing either that this district is not composed of socio-economically integrated areas or that these districts are not contiguous or compact. However, Article VI, Section 6 only requires that senate districts be composed of two contiguous house districts. Senate District P meets this requirement.

The objections raised by the various letter writers are without legal merit and do not provide a basis for overturning any portion of the amended final plan. None of the objections raised by the letter writers as to House Districts 16, 32, 18, and Senate District P are legally valid. The court finds that these districts fully satisfy the requirements of Alaska and federal law. ‘

B. Objections of Luper Plaintiffs

The Anchorage plaintiffs along with Terry Martin object to the amended final plan for a number of reasons. First, these plaintiffs contend that the Plan is a "partisan gerrymander." They make this assertion based on the claim that the amended plan pairs 18 Republican incumbents against one another and zero Democrats. This number does not appear to be correct. Regardless of the correct number, however, there is no evidence that the Amended Final Plan invidiously minimizes the right of any politically salient class to an equal effective vote. See Alaska Supreme Court Order No. 89, at p. 5 & n. 8. There is no evidence that this plan fences Republicans out of the political process or invidiously minimizes their voting strength. Id. The claim of "partisan gerrymander" was raised by certain plaintiffs and rejected by this court as to the original June 18, 2001 plan. See Memorandum and Order (February 1, 2002) at pp. 73-77. Applying the same legal standards utilized in that decision, the claim of partisan gerrymander is likewise rejected as to the Amended Final Plan.

The Luper plaintiffs also assert that House Districts 28, 18, and 32 are not compact. This court discussed the standards for reviewing the requirement of compactness contained in Article VI, Section 6 of the Alaska Constitution both in its order of December 31, 2001 granting the Ruedrich plaintiffs Motion for Summary Judgment re: Lack of Compactness of House District 16 and in its Memorandum and Order of February 1, 2002 regarding the June 18, 2001 Plan. The Alaska Supreme Court affirmed that portion of this court's February 1, 2002 Memorandum and Order in its March 21, 2002 order. See Alaska Supreme Court Order No. 39 at 2. Applying the same standards used to review this issue in this court's prior rulings, and recognizing that the Board was required to shift census blocks in order to minimize population deviations in Anchorage as required by the order of the Alaska Supreme Court, this court finds that House Districts 18, 28 and 82 all satisfy the compactness requirement contained in Article VI, Section 6 of the Alaska Constitution. _ |

Finally, the Luper plaintiffs object to the population deviations in the amended Final Plan and seek another remand with direction to further reduce deviations statewide, particularly in Anchorage and the Kenai Peninsula Borough. The Supreme Court held that deviations from ideal size in the Anchorage District were unconstitutional and required the Board on remand to make a good faith effort to further reduce the deviations. The Board has done so. Districts within the Anchorage bowl are all within 1.1% of ideal district size and have an overall deviation of only 1.35%. As to Anchorage the Alaska Supreme Court recognized that "Anchorage is by definition socio-economically integrated, and its population is sufficiently dense and evenly spread to allow multiple combinations of compact, contiguous districts with minimal population deviations." Id. at 9. No such observation was made as to other parts of the state where reducing population deviations below ten percent is more problematic in light of the other requirements of Article VI, Section 6 of the Alaska Constitution. Thus, the Alaska Supreme Court did not require the Board to reduce population deviations statewide. Rather, the only deviations the Alaska Supreme Court required the Board to adjust were deviations in the Anchorage house districts and in House District 40. All other aspects of the June 18, 2001 Plan regarding population deviation were affirmed by the court.

As to population deviation the Amended Final Plan fully complies with the Order of the Alaska Supreme Court. None of the population deviations in the Amended Plan violate the equal protection requirements of the Alaska Constitution.

CONCLUSION

Upon consideration of the Notice of Compliance filed by the Alaska Redistricting Board, all objections thereto and upon full consideration of the record before this court in this proceeding, this court finds the Final Plan and Proclamation of Redistricting dated June 18, 2001, as amended by the Alaska Redistricting Board on April 13 and 18, 2002 to be reasonable and constitutional in all respects, and in full compliance with the order of this court dated February 1, 2002 and the order of the Supreme Court, dated March 21, 2002. A final judgment to this effect is being entered concurrently with the issuance of this opinion.

DATED at Anchorage, Alaska this 9th day of May 2002.

      . In re 2001 Redistricting Cases, 44 P.3d 141 (Alaska 2002).

      . We review redistricting plans "de novo upon the record developed in the superior court." Groh v. Egan, 526 P.2d 863, 867 (Alaska 1974) (interpreting Alaska Constitution article VI, section 11, which provides that claims of errors in redistricting "shall be reviewed by the supreme court on the law and the facts").

      . In re 2001 Redistricting Cases, 44 P.3d at 146.

      . On remand the board reduced the maximum deviation in the Anchorage Bowl area from 9.5% to 1.35%.

      . Article VI, section 11 requires that applications to compel the board to correct any error in redistricting "must be filed no later than thirty days following the expiration of the ninety-day period specified in this article." The claimed errors regarding the Kenai Peninsula Borough districts and statewide deviations concern aspects of the Final Amended Plan that were largely carried over from the June 18, 2001 Proclamation Plan. The Proclamation Plan was published on the last day of the ninety day period specified in article VI, section 11. Accordingly, the relevant deadline for these claims was July 18, 2001, but the appellants did not raise these claims until after the board promulgated its Final Amended Plan on April 25, 2002.

      . As a result of the 1998 amendment, Alaska Constitution article VI, section 6 provides that "{elach [house district] shall contain a population as near as practicable to the quotient obtained by dividing the population of the state by forty." In our March 21, 2002 order we interpreted this new clause to mean that "article VI, section 6 will in many cases be stricter than the federal threshold," In re 2001 Redistricting Cases, 44 P.3d at 146, and held that Anchorage Bowl deviations slightly under the 10% federal threshold were nonetheless unconstitutionally excessive. Id. at 146; but see id. at 150-52 (Carpeneti, J., dissenting).

      . See In re 2001 Redistricting Cases, 44 P.3d at 145 ("Dividing the [socio-economically integrated Delta Junction] area does not violate the constitutional requirement that districts be socioeconomically integrated so long as each portion is integrated, as nearly as practicable, with the district in which it is placed.").

      . See In re 2001 Redistricting Cases, 44 P.3d at 146 ("Anchorage is by definition socio-economi-cally integrated."); see also Hickel v. Southeast Conference, 846 P.2d 38, 52 (Alaska 1992) ("[A] borough is by definition socio-economically integrated."); id. at 51 (quoting AS 29.05.031) ("By statute, a borough must have a population which 'is interrelated and integrated as to its social, cultural, and economic activities." ").

      . See In re 2001 Redistricting Cases, 44 P.3d at 144 n. 7. ("[Aluy neighboring areas north, east, or south [of the Municipality of Anchorage and the Matanuska-Susitna Borough] would meet the constitutional requirement of relative socio-eco-nomic integration.").

      . See In re 2001 Redistricting Cases, 44 P.3d at 146.

      . Kenai Peninsula Borough v. State, 743 P.2d 1352, 1362-63 (Alaska 1987).

      . Article VL, section 6 of the Alaska Constitution provides: "Consideration may be given to local government boundaries."

      . Memorandum & Order of May 9, 2002, p. 4.

      . See Alaska Const. art. VI, § 6 ("Each house district shall be formed of contiguous and compact territory containing as near as practicable a relatively integrated socio-economic area.").

      . In re 2001 Redistricting, 44 P.3d at 146.

      . The Luper appellants candidly admitted at oral argument that they did not previously challenge the southeast appendage extending into Muldoon even though this appendage existed in the board's original Proclamation Plan of June 18, 2001.

      The superior court's opinion has been edited to conform with our technical rules.

      . The court has received letters from Carl Diso-tell, Debbie Ossiander, Lee B. Jordan, Terry Martin, Randy Phillips, Janet S. Seitz, and Susan Gorski. Although as a technical matter these citizens did not move to intervene in this proceeding, the court has considered the objections raised by these citizens.

      . The evidence indicates that in actuality 16 Republican incumbents are placed in shared districts while one Democrat incumbent is paired with a Republican incumbent. See Exhibit A to Memorandum in Support of Objection to Amended Redistricting Plan filed by the Luper Plaintiffs.