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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
JUDY M. MITCHELL, )
) Court of Appeals No. A-3818
Appellant, ) Trial Court No. 3AN-S90-4753
Cr
)
v. )
) O P
I N I O N
STATE OF ALASKA, )
) [No. 1171 - October 25, 1991]
Appellee. )
________________________________)
Appeal from the District Court, Third Judi
cial District, Anchorage, Michael Wolverton,
Judge.
Appearances: David R. Weber, Assistant
Public Defender, and John B. Salemi, Public
Defender, Anchorage, for Appellant. Terry A.
Fikes, Assistant District Attorney, Edward E.
McNally, District Attorney, Anchorage, and
Charles E. Cole, Attorney General, Juneau,
for Appellee.
Before: Bryner, Chief Judge, and Coats and
Mannheimer, Judges.
MANNHEIMER, Judge.
Judy M. Mitchell pleaded no contest to two counts of
unsworn falsification, AS 11.56.210(a)(1), preserving her right
to challenge the convictions on double jeopardy grounds. Cooksey
v. State, 524 P.2d 1251 (Alaska 1974). We affirm.
In August and September, 1989, Mitchell applied for and
received unemployment insurance benefits; however, she lied in
her benefits application. When this was discovered, Mitchell
agreed to repay the unlawfully obtained benefits plus the 50-
percent penalty specified in AS 23.20.390(f). She also signed
the following acknowledgement:
It is expressly understood and agreed that
this [repayment] agreement relates
exclusively to my civil liability to make
restitution of overpaid benefits ... and that
it in no way relates to or absolves me from
any other liability imposed by state or
federal law.
Two weeks after she signed this acknowledgment,
Mitchell was served with a criminal complaint charging her with
five counts of unsworn falsification based on the fraudulent
unemployment benefit claims she had submitted to the Department
of Labor. She asked the district court to dismiss these charges,
asserting that the criminal charges violated the guarantee
against double jeopardy. The district court denied Mitchell's
motion, leading to this appeal.
Mitchell contends that she was already penalized for
her conduct when the court imposed the 50-percent civil penalty
provided in AS 23.20.390(f), and that the double jeopardy clauses
of both the federal and state constitutions bar further prosecu
tion. Mitchell is in error.
With regard to the federal guarantee against double
jeopardy contained in the Fifth Amendment to the United States
Constitution, Mitchell's argument is foreclosed by United States
v. Halper, 490 U.S. 435, 109 S.Ct. 1892 (1989). The defendant in
Halper, a physician, had fraudulently inflated the value of 65
Medicare claims by $9.00 each. He received a prison sentence and
a fine of $5000. The governing statute also provided for a civil
penalty of $2000 per false claim. Under this provision, the
defendant was assessed a penalty of $130,000 for submitting false
claims totaling $585. This penalty, the Supreme Court ruled, was
so disproportionate to the government's loss that it should be
considered a criminal punishment: imposing the full statutory
amount in the civil lawsuit would violate the double jeopardy
clause of the Fifth Amendment because it would punish Halper a
second time for the same conduct for which he had been convicted.
Thus, in Halper, the United States Supreme Court ruled
that the imposition of ostensibly "civil" penalties for fraud
upon the government could potentially constitute "jeopardy" if
the penalties were completely disproportionate to the injury
suffered by the government. But although the Supreme Court
granted relief to Halper, the court carefully affirmed its prior
cases upholding the government's right to impose civil penalties
in excess of the government's actual loss:
[T]he Government is entitled to rough
remedial justice, that is, it may demand
compensation according to somewhat imprecise
formulas, such as reasonable liquidated
damages or a fixed sum plus double damages,
without being deemed to have imposed a second
punishment for the purpose of double jeopardy
analysis.
Halper, 490 U.S. at 446, 109 S.Ct. at 1900.
[W]e have recognized that in the ordinary
case fixed-penalty-plus-double-damages
provisions can be said to do no more than
make the Government whole. We cast no shadow
on these time-honored judgments. What we
announce now is a rule for the rare case ...
where a fixed- penalty provision subjects a
prolific but small-gauge offender to a
sanction overwhelmingly disproportionate to
the damages he has caused.
Halper, 490 U.S. at 449, 109 S.Ct. at 1902.
Mitchell was obliged to repay the amount she
fraudulently obtained from the Department of Labor plus a penalty
of 50 percent. The language of Halper demonstrates that Mitchell
has no claim under the federal Constitution.
Mitchell's brief to this court contains no separate
argument based on the double jeopardy provision found in Article
I, Section 9 of the Alaska Constitution. However, at oral
argument Mitchell's attorney urged this court to interpret this
provision more broadly than its federal counterpart. We decline
to do so for two reasons. First, this contention was not
briefed; it is therefore not preserved. Wren v. State, 577 P.2d
235, 237 n.2 (Alaska 1978). Second, when a litigant claims that
a provision of the state constitution should be interpreted at
variance with its federal counterpart, it is incumbent upon that
litigant to point this court to something in the text, context,
or history of the Alaska Constitution which justifies this
divergent interpretation. Abood v. League of Women Voters, 743
P.2d 333, 340-43 (Alaska 1987); State v. Wassillie, 606 P.2d
1279, 1281-82 (Alaska 1980); Annas v. State, 726 P.2d 552, 556
n.3 (Alaska App. 1986); and State v. Dankworth, 672 P.2d 148, 151
(Alaska App. 1983). Mitchell has failed to do this.
At oral argument, Mitchell claimed that the "fair and
just treatment" clause of Article I, Section 7 of the state
constitution indicates that Alaska's double jeopardy clause
should be interpreted expansively. This clause reads: "The
right of all persons to fair and just treatment in the course of
legislative and executive investigations shall not be infringed."
This language does not seem to have any particular relevance to
Alaska's double jeopardy provision. Moreover, because Mitchell's
contention was raised for the first time at oral argument, he has
not briefed the history or meaning of the "fair and just
treatment" clause. We therefore decline to reach Mitchell's
argument. Wren v. State, 577 P.2d 235.
The judgement of the district court is AFFIRMED.
