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303 K Street, Anchorage, Alaska 99501
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| JAMES A. GARHART, | ) |
| ) Court of Appeals No. A-9081 | |
| Appellant, | ) Trial Court No. 3PA-02-882 Cr |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2072 November 17, 2006 |
| ) | |
Appeal from the Superior Court, Third Judi
cial District, Palmer, Eric Smith, Judge.
Appearances: Verne E. Rupright, Wasilla, for
the Appellant. John A. Scukanec, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
David W. M rquez, Attorney General, Juneau,
for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
A jury convicted James A. Garhart of five counts of
fourth-degree controlled substance misconduct based mainly on the
results of search warrants issued for his house and vehicle.
During the execution of these warrants, the police found physical
evidence tending to prove that he was engaged in the commercial
cultivation of marijuana.
(In particular, the police found 62 marijuana plants in
various stages of growth; these plants yielded over 4 pounds of
marijuana. In addition, Garhart had four motorized track-
lighting systems, timers, fans, scales, and packaging materials.)
Following the jurys verdicts, and while Garhart was
awaiting sentencing, this Court issued its decision in State v.
Crocker, 97 P.3d 93 (Alaska App. 2004). In Crocker, we held that
a magistrate should not issue a warrant to search someones home
for evidence of marijuana possession unless the search warrant
application establishes probable cause to believe that the
marijuana possession falls outside the scope of protected
personal use recognized by the Alaska Supreme Court in Ravin v.
State, 537 P.2d 494 (Alaska 1975) e.g., the marijuana is being
cultivated for sale, or the amount of marijuana exceeds the
amount allowed for personal use. Crocker, 97 P.3d at 97-98.
Based on this Courts decision in Crocker, Garhart filed
a motion for New Trial and Arrest of Judgment. Garhart argued
that, because of Crocker, the superior court needed to re-assess
the validity of the three search warrants in his case. In
particular, Garhart argued that the first search warrant issued
for his home did not establish probable cause to believe that his
marijuana possession exceeded the scope of protected possession
established by Ravin.
The superior court denied Garharts motion because the
court concluded that the search warrant did, in fact, establish
probable cause for the search, even under the rule announced in
Crocker.
Garhart now appeals the superior courts ruling. We
conclude that it makes no difference whether the search warrant
applications in Garharts case were sufficient under Crocker.
Based on the Alaska Supreme Courts decision and reasoning in
State v. Glass, 596 P.2d 10 (Alaska 1979), we conclude that our
decision in Crocker should not be applied retroactively that is,
it should not be applied when assessing the validity of search
warrants issued before we decided Crocker.
Why we conclude that Crocker should not be applied
retroactively
Our decision in Crocker established a new
rule of constitutional law.
We acknowledge that the Crocker decision is
based on our supreme courts decision in Ravin, 537 P.2d
494, and on this Courts own decision in Noy v. State,
83 P.3d 538 (Alaska App. 2003), and on rehearing, 83
P.3d 545 (Alaska App. 2003). But for purposes of
evaluating the potential retroactivity of a court
decision, a court decision can be new even though it
may follow logically from prior decisions or even
though it can reasonably be described as governed by
prior decisions.
As Justice OConnor wrote in her concurring
opinion in Wright v. West, To determine what counts as
a new rule, ... courts [must] ask whether the rule ...
can be meaningfully distinguished from [the rules]
established by binding precedent at the time [the
defendants] state court conviction became final.
(Emphasis added)1
Even though a newly-announced rule may be
described as controlled or governed by prior judicial
decisions, this does not necessarily decide the issue
of whether the rule is new for purposes of the rules
governing retroactivity. As the United States Supreme
Court explained in Butler v. McKellar,
[T]he fact that a court says that its
decision is within the logical compass of an
earlier decision, or indeed that it is
controlled by a prior decision, is not
conclusive for purposes of deciding whether
the current decision is a new rule [for the
test governing retroactivity]. Courts
frequently view their decisions as being
controlled or governed by prior opinions even
when [they are] aware of reasonable contrary
conclusions reached by other courts. [If]
the outcome [was] susceptible [of] debate
among reasonable minds ... , [the rule should
be viewed as] a new rule.
494 U.S. 407, 415; 110 S.Ct. 1212, 1217-18;
108 L.Ed.2d 347 (1990).
This Courts decision in Crocker was
clearly susceptible of reasonable debate.
Chief Judge Coats dissented in Crocker,
arguing that this Court was overturning years
of established precedent regarding search
warrant applications.2 This fact essentially
decides the question of whether Crocker
announced a new rule. To paraphrase what the
Supreme Court said on this subject in Beard
v. Banks, reasonable jurists could have
concluded that the [Alaska Supreme Courts
decision in Ravin and this Courts decision in
Noy] did not compel [the decision in
Crocker].3 Accordingly, Crocker announced a
new rule for purposes of retroactivity
analysis.
Because Crocker announced a new
rule, we must decide whether that new rule is
entitled to retroactive application.
In Griffith v. Kentucky,4 the
United States Supreme Court held that new
rules of federal constitutional law must be
applied to all defendants whose convictions
are not yet final when the new rule is
announced. But Crocker announced a rule of
state constitutional law, and the state rules
for retroactivity are different particularly
when the new rule deals with the legality of
searches and seizures, and the potential
exclusion of evidence.
The Alaska Supreme Court confronted
an analogous case in State v. Glass, 583 P.2d
872 (Alaska 1978), on rehearing, 596 P.2d 10
(Alaska 1979).
In its first Glass decision, the
Alaska Supreme Court held that the Alaska
Constitution restricts police monitoring of
private conversations to a greater extent
than the federal Constitution does. In
particular, the supreme court held that even
when one participant in the conversation
knows of and consents to the police
monitoring, the police still need to obtain a
warrant to engage in the monitoring5 even
though, under federal law, the acquiescence
of one participant is sufficient to authorize
the police to engage in warrantless
monitoring.6
In its second Glass decision, the
supreme court confronted the issue of whether
the Glass rule should be applied
retroactively i.e., whether defendants
should be entitled to suppression of evidence
which was obtained by police monitoring that
was legal when it occurred, but that violated
the rule announced in Glass. The supreme
court held that, with the exception of Glass
himself and the defendants in three other
accompanying cases, the Glass rule would be
applied prospectively only. That is, the
supreme court held that only police
monitoring that occurred after September 15,
1978 (the date of the first Glass decision)
would be governed by the warrant requirement
announced in Glass. Glass (II), 596 P.2d at
11-12, 15.
In reaching this conclusion, the
supreme court applied the three-prong Alaska
test for retroactivity adopted in Judd v.
State, 482 P.2d 273, 277-78 (Alaska 1971),
and most recently summarized in State v.
Semancik:
We consider three factors when deciding
whether to apply a new rule retroactively or
prospectively: (1) the purpose to be served
by the new rule; (2) the extent of reliance
on the old rule; and (3) the effect on the
administration of justice of a retroactive
application of the new rule.
Semancik, 99 P.3d 538, 543 (Alaska 2004).
Regarding the first prong the
purpose of the new rule the supreme court
noted that evidence suppressed under the
Glass rule is not suppressed because it is
unreliable, but rather to advance the
policies of the exclusionary rule: to deter
police misconduct, and to maintain judicial
integrity. But [the] deterrence function [of
the exclusionary rule] cannot be served by
applying Glass to police conduct occurring
before the date of the decision, nor is
judicial integrity ... undermined when the
police conformed their actions to what was
the law when they acted.7
This circumstance, the supreme
court declared, points quite decisively away
from retroactive application of Glass.8
A review of the decisions of the Supreme
Court of the United States dealing with
retroactivity questions indicates that the
starting point in analysis is the purpose [of
the new rule]. Where the purpose of the new
rule is primarily related to the integrity of
the verdict, the application thereof has
generally been extended to all cases. ...
On the other hand, where the purpose of a new
constitutional standard is not to minimize
arbitrary or unreliable fact findings, but to
serve other ends, retroactive application has
generally been denied.
Glass (II), 596 P.2d at 14.9
Turning to the second criterion for
assessing retroactivity, the supreme court
noted that the reliance by law enforcement
officials on pre-Glass law was reasonable.
Law enforcement officials could not be
expected to foresee our ruling in Glass, and
thus [their] decisions not to seek warrants
for participant monitoring were entirely
reasonable and in good faith.10
And turning to the third criterion
for assessing retroactivity, the supreme
court noted that if the Glass rule were given
complete retroactivity[,] so that it would
apply to cases already completed, the
negative effect on the administration of
justice would be substantial. ... Every
case in which [a] conviction may have
resulted from tape recorded evidence would
have to be reopened and examined. In many
cases, evidence will have been lost, memories
faded and witnesses unavailable.11
Based on these considerations, the
supreme court ruled that the Glass warrant
requirement would only apply prospectively to
activity occurring on or after September 15,
1978.12
The supreme courts analysis in
Glass (II) applies equally to the question of
whether our decision in Crocker should be
applied retroactively.
Regarding the first prong of the
retroactivity analysis, the Crocker decision
does not exclude evidence because it is
unreliable or because the introduction of
that evidence at a criminal trial may lead to
verdicts of questionable validity. Rather,
Crocker is aimed at protecting the privacy of
the home in a particular circumstance.
Regarding the second prong of the
retroactivity analysis, both police officers
(when applying for search warrants) and
judicial officers (when issuing search
warrants) reasonably relied on pre-Crocker
law when they assessed whether there was
probable cause to justify the search of a
persons home based on evidence of marijuana
possession. The decisions made by judicial
officers to issue such warrants were
reasonable at the time, and their actions
were taken in good faith.
And regarding the third prong of
the retroactivity analysis, according full
retroactivity to Crocker would have a
substantial negative effect on the
administration of justice. Many cases would
have to be re-opened and, because of the
fruit of the poisonous tree doctrine of
exclusion, it appears to us that most of
these cases could not be reprosecuted.
Just as the supreme court concluded
that the Glass warrant requirement should not
be applied retroactively, we conclude that
the restriction on search warrants announced
in Crocker should not be applied
retroactively.
Our decision in Crocker was issued
on August 27, 2004. The search warrants in
Garharts case were issued in early March 2002
that is, approximately two and a half years
before Crocker. Accordingly, even if those
search warrant applications did not satisfy
the test announced in Crocker, Garhart is not
entitled to relief.
Garharts challenges to the marijuana laws
Garhart raises a number of other
constitutional claims on appeal. He asserts that
Alaskas laws governing the possession and
distribution of marijuana (as interpreted by the
decisions of the Alaska Supreme Court and this
Court) violate his rights to due process, equal
protection, and privacy.
Garharts arguments are rambling and difficult
to follow, and he does not fully explain why he
believes that the challenged laws violate these
constitutional guarantees. Garharts fundamental
position appears to be that, because the Ravin decision
recognizes a privacy right to possess limited amounts
of marijuana in ones home for personal use, and because
the Ravin decision did not establish an express limit
on the amount of marijuana that one might lawfully
possess in ones home, the legislature is prohibited
from penalizing the possession of any amount of
marijuana in ones home, and the legislature is further
prohibited from penalizing the distribution of
marijuana when the purchaser intends to take the
marijuana home, absent affirmative proof that the
marijuana will be used for commercial purposes.
For example, Garhart asserts that AS
11.71.040(a)(3)(F) (which prohibits the possession of
one pound or more of marijuana) and
AS 11.71.040(a)(3)(G) (which prohibits the possession
of 25 or more marijuana plants) are both
unconstitutional when applied to marijuana possession
in ones home because neither statute requires proof
that the possessor of the marijuana intends to
manufacture or deliver marijuana for commercial
purposes.
Garharts argument is contrary to this Courts
decision in Walker v. State, 991 P.2d 799 (Alaska App.
1999), where we held that the legislature could
properly prohibit the personal possession of eight
ounces or more of marijuana in ones home, even if the
marijuana was intended only for personal use. Id. at
803.
In Walker, we noted that the Ravin decision
did not rest on the notion that people have a
fundamental right to ingest marijuana or possess
marijuana for personal use. Rather, the Ravin decision
rested on a persons heightened right of privacy with
respect to their conduct within their own home. Id. at
801-02, quoting Ravin, 537 P.2d at 504. We accordingly
concluded that, even when marijuana is possessed for
purely personal use, the legislature nevertheless has
the power to set reasonable limits on the amount of
marijuana that people can possess for personal use in
their homes. Walker, 991 P.2d at 802.
Garharts argument essentially calls upon us
to overrule our decision in Walker. Because Garhart
asks us to overturn the law established in Walker, it
is Garharts burden to convincingly demonstrate that the
Walker decision either (1) was originally erroneous or
(2) is no longer sound because of changed conditions.13
But Garharts opening brief does not even
mention the Walker decision. Nor does Garhart mention
Walker in his reply brief even though the States brief
explicitly relies on Walker when answering Garharts
argument.
One can not defeat the principle of stare
decisis by studiously avoiding any mention of
inconvenient precedent. We accordingly reject Garharts
constitutional attack on AS 11.71.040(a)(3)(F) (G).
Garhart also argues that if, under Alaskas
constitutional right of privacy, people are entitled to
possess a limited amount of marijuana in their homes
for personal use, then the constitution must also
protect the cooperative growing and distribution of
marijuana if the marijuana is intended solely for the
personal use of the people involved in the growing and
distribution activities. But, as we pointed out above,
the Ravin decision is not based on a purported right to
ingest or possess marijuana. Rather, it is based on
peoples heightened expectation of privacy in their
homes. The Ravin decision clearly states that there is
no constitutional right to buy or sell marijuana:
[N]either the federal or Alaska constitution affords
protection for the buying or selling of marijuana ... .
Ravin, 537 P.2d at 511.
Garhart also argues that the courts and the
legislature can not lawfully authorize disparate
treatment of different aspects of the right of privacy.
Thus, Garhart contends, the government can place no
greater limits on the right to possess marijuana than
it can place on other privacy rights such as the right
to use contraceptives or the right to obtain an
abortion.
This argument is frivolous. The Ravin
opinion explains that when a statute or other state
action is challenged as violating an individuals right
to privacy, a court must first determine the nature of
the privacy rights, if any, that are infringed by the
states action. Then, if identifiable privacy rights
are infringed, the court must resolve the question of
whether the infringement is justified. This question
is answered by determining (1) whether there is a valid
governmental interest in imposing the challenged
restriction, and (2) whether the means chosen by the
government to advance its interest bear a sufficiently
close and substantial relationship to that interest,
given the nature of the privacy right infringed.
Ravin, 537 P.2d at 498, 504.
In other words, our supreme court has held
that when a court assesses a claimed right of privacy,
the result will depend on what particular activity is
at stake. The court must weigh the persons privacy
interest in pursuing that particular activity against
the governments competing interest in regulating or
forbidding that activity.
To the extent that Garhart may be attempting
to raise other claims in his brief, we conclude that
any such claims are waived because of inadequate
briefing.14
The superior courts denial of Garharts requests for
special interrogatories and special production, and for
pre-trial depositions
Garhart filed several discovery requests in
the superior court, including a motion to compel the
State to answer special interrogatories and produce
documents under Alaska Criminal Rule 16, as well as a
motion under Alaska Criminal Rule 15 to conduct pre-
trial depositions.
In these motions, Garhart sought information
regarding the investigative techniques and the
personnel used by the Matanuska-Susitna Narcotics Unit.
Garharts expressed intention was to prove that the
officers of this unit, when applying for search
warrants, presented false assertions that they
personally could detect the odor of marijuana emanating
from a particular structure when, in fact, the true
source of the information about the marijuana was an
undisclosed informant or a prior unlawful search of the
premises.
Garhart sought to depose two individuals who
lived near Garharts residence. According to Garharts
motion, these two individuals allegedly told a third
party that they had been secretly involved in the
investigation of Garharts case. Based on this third
partys report, Garhart claimed that the officers who
procured the search warrant in his case relied on these
two undisclosed informants for information about
Garharts illegal activities, but then failed to
disclose the existence of these informants to the court
or to Garharts defense attorney.
Superior Court Judge Eric Smith denied
Garharts motion to compel the State to answer special
interrogatories and to specially produce other evidence
because the judge concluded that the Alaska Criminal
Rules did not authorize these procedures. On appeal,
Garhart argues that Judge Smith should have granted his
requests, but he does not address the substance of the
judges ruling (i.e., the judges conclusion that Garhart
was asking for something that the Criminal Rules do not
authorize). Because Garhart does not address Judge
Smiths legal basis for denying this special discovery,
Garhart has waived his challenge to the judges
ruling.15
With regard to Garharts motion for pre-trial
depositions, Judge Smith allowed Garhart to submit ex
parte the affidavit of the person who allegedly
interviewed the two undisclosed police informants, and
the judge deferred his ruling on the matter of
depositions until he reviewed this affidavit.
Alaska Criminal Rule 15 authorizes pre-trial
depositions in criminal cases for only two purposes:
(1) to preserve a witnesss testimony if the witness
will not be available to testify at trial, and (2) [in]
exceptional circumstances, ... to prevent a failure of
justice. Judge Smith apparently believed that,
depending on the content of the affidavit, Garharts
request for depositions might potentially fall under
subsection (2).
But after reviewing the affidavit, Judge
Smith found no basis for allowing the affidavit to be
presented ex parte, and he notified Garhart that he
intended to release the affidavit to the State unless
Garhart filed an opposition. Garhart filed no
opposition, so Judge Smith made the affidavit public.
The judge also denied Garharts motion for pre-trial
depositions, concluding that the affidavit submitted by
Garhart failed to establish reason to believe that the
police were using undisclosed or unlawful investigative
techniques.
We have examined the affidavit, and we agree
with Judge Smiths conclusion. The information in this
affidavit does not establish a reasonable possibility
that the police were using undisclosed informants or
that they had engaged in illegal investigative tactics.
Accordingly, we conclude that Judge Smith did not abuse
his discretion when he denied Garharts request for pre-
trial depositions.
Garharts argument that the State should have been
required to elect a single count among the five counts
of the indictment before the case was submitted to the
jury
In five separate counts, Garhart was accused
of violating four provisions of AS 11.71.040(a)
relating to marijuana: subsection (a)(2)
(manufacturing or possessing one ounce or more with
intent to deliver); subsection (a)(3)(F) (possessing
one pound or more); subsection (a)(3)(G) (possessing 25
or more plants); and two counts under subsection (a)(5)
(knowingly maintaining a building and knowingly
maintaining a vehicle that were used for the felony
keeping or distribution of marijuana).
Garhart went to trial on all five counts.
However, just prior to the parties closing arguments,
Garhart asked Judge Smith to order the State to elect
one count among the five, and to preclude the jury from
considering the four others. In his motion, Garhart
argued that allowing presentation of all five counts to
the jury would violate the constitutional prohibition
on double jeopardy.
Judge Smith correctly denied this motion.
Even when the counts of the defendants indictment
charge separate theories of the same crime, or when the
counts of the indictment charge separate crimes that
will ultimately be treated as the same crime under the
rule announced in Whitton v. State,16
Alaska law allows the government to seek a
jury verdict on each count. The double jeopardy clause
comes into operation later, when the sentencing court
is asked to enter judgement on those verdicts. At that
time, the court must merge one or more of the verdicts
so that the defendant receives only the number of
convictions and sentences allowed by the double
jeopardy clause.
See Gilbert v. State, 598 P.2d 87, 91 (Alaska
1979); Robinson v. State, 487 P.2d 681, 682 (Alaska
1971); Atkinson v. State, 869 P.2d 486, 495 (Alaska
App. 1994).
This is what happened in Garharts case. The
jury found Garhart guilty of all five counts, but Judge
Smith later ruled that, under Alaska double jeopardy
law, he was obliged to merge the verdicts on Counts I,
II, III, and IV. Thus, Judge Smith entered only two
convictions against Garhart: one conviction on these
four merged counts, and another conviction on Count V
(maintaining a vehicle for the felony keeping or
distribution of marijuana).
Garharts challenges to his sentence
Garharts offenses are class C felonies.17
Garhart was a second felony offender, owing to his 1992
federal felony conviction for manufacturing marijuana.
Garhart therefore faced a 2-year presumptive term on
each of his two convictions.18
In support of his request for a lesser
sentence, Garhart proposed three mitigating factors
under AS 12.55.155(d): (d)(13) that the facts
surrounding this offense and his previous offense
established that the harm he has caused is consistently
minor and inconsistent with a substantial period of
imprisonment; (d)(14) that his offense involved small
quantities of marijuana; and (d)(16) that his offense
involved a small amount of a marijuana for personal use
in his home.
Judge Smith found that Garhart had failed to
prove any of these three mitigators. Later, the judge
sentenced Garhart to the 2-year presumptive term on
each count, and he ordered these two sentences to run
concurrently. Thus, Garharts composite sentence is 2
years to serve.
Garhart argues that Judge Smiths ruling on
the proposed mitigating factors was influenced by the
fact that all five counts were submitted to, and
decided by, the jury. But as we explained above, it
was proper for Judge Smith to allow the jury to
deliberate on all five counts. Moreover, even if all
five counts had not been submitted to the jury, Judge
Smith was nevertheless entitled to consider all of the
evidence in the case when he made his rulings on
Garharts proposed mitigators, regardless of whether
that evidence was a necessary component of the jurys
verdicts.
See Brakes v. State, 796 P.2d 1368, 1370-73
(Alaska App. 1990) (holding that, because a lower
burden of proof applies at sentencing, a sentencing
judge can consider facts adverse to the defendant even
if the jurys verdict shows that the jurors found those
same facts not to be proved).
Garhart also argues that Judge Smith rejected
his proposed mitigators because the judge improperly
employed a presumption that Garharts marijuana growing
and distribution activities were for commercial
purposes. But Garhart cites no portion of the record
or the transcript to support this assertion.
In fact, the record shows that when Judge
Smith rejected Garharts assertions of consistently
minimal harm and purely personal use, the judge relied
heavily on the evidence in Garharts present case
especially, the amount of marijuana found in Garharts
possession. We note, as well, the facts of Garharts
previous federal conviction; in that prior case, more
than 4 kilograms of marijuana (approximately 9 pounds)
was seized from Garharts house.
Garhart also argues that he should have
received either a suspended imposition of sentence or,
at least, a wholly suspended sentence of imprisonment
in light of the political nature of his case. Garhart
argues that [his] only crime was a political belief
held by almost forty percent of Alaskans: that the
government has no business criminalizing the use or
cultivation of marijuana.
First, Judge Smith had no authority to
sentence Garhart to less than the 2-year presumptive
term. Garhart failed to prove any mitigating factors,
and he did not ask Judge Smith to refer his case to the
statewide three-judge sentencing panel under
AS 12.55.165. Thus, the prescribed 2-year presumptive
term was, in effect, the applicable minimum sentence.
See the pre-March 2005 versions of AS 12.55.125(e),
AS 12.55.125(g), and AS 12.55.155(a).
Second, Garhart was not convicted because of
his political beliefs. He was convicted because the
State proved that he broke the law. Garhart has the
right to seek to have the marijuana laws changed or
repealed, but he does not have the right to flout them.
Conclusion
The judgement of the superior court is
AFFIRMED.
_______________________________
1Wright v. West, 505 U.S. 277, 304; 112 S.Ct. 2482, 2497;
120 L.Ed.2d 225 (1992) (OConnor, J., concurring).
2Crocker, 97 P.3d at 99 (Coats, C.J., dissenting), citing
Lustig v. State, 36 P.3d 731, 732-33 (Alaska App.
2001); Wallace v. State, 933 P.2d 1157, 1163 (Alaska
App. 1997); McClelland v. State, 928 P.2d 1224, 1226-27
(Alaska App. 1996); Landers v. State, 809 P.2d 424, 424-
25, 426-27 (Alaska App. 1991).
3Beard v. Banks, 542 U.S. 406, 416; 124 S.Ct. 2504, 2513;
159 L.Ed.2d 494 (2004).
4479 U.S. 314, 328; 107 S.Ct. 708, 716; 93 L.Ed.2d 649
(1987).
5Glass, 583 P.2d at 879, 881.
6See United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28
L.Ed.2d 453 (1971).
7Glass (II), 596 P.2d at 14.
8Glass (II), 596 P.2d at 13.
9Quoting Rutherford v. State, 486 P.2d 946, 952-53 (Alaska
1971).
10Glass (II), 596 P.2d at 14.
11Id. at 14-15.
12Id. at 15.
13State v. Semancik, 99 P.3d 538, 540 (Alaska 2004).
14See Katmailand, Inc. v. Lake and Peninsula Borough, 904
P.2d 397, 402 n. 7 (Alaska 1995); Petersen v. Mutual Life
Ins. Co. of New York, 803 P.2d 406, 410 (Alaska 1990); Wren
v. State, 577 P.2d 235, 237 n. 2 (Alaska 1978).
15See Zok v. State, 903 P.2d 574, 576 n. 2 (Alaska 1995).
16479 P.2d 302 (Alaska 1970).
17See AS 11.71.040(d).
18See AS 12.55.125(e)(1) (pre-March 2005 version).
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