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Thomas Hernandez-Robaina v. Alaska (4/2/93), 849 P 2d 783
Notice: This is subject to formal correction before publication
in the Pacific Reporter. Readers are requested to bring
typographical or other formal errors to the attention of the
Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska
99501, in order that corrections may be made prior to permanent
THE SUPREME COURT OF THE STATE OF ALASKA
THOMAS HERNANDEZ-ROBAINA, )
) Supreme Court No. S-5005
) Trial Court No.
v. ) 3AN-91-5883 Civil
STATE OF ALASKA, MUNICIPALITY ) O P I N I O N
OF ANCHORAGE, and DR. DAVID )
SPERBECK, DOES 1-5, )
Appellees. ) [No. 3941 - April 2, 1993]
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
J. Justin Ripley,
Appearances: Phillip S. Lopez,
Anchorage, for Appellant. Timothy M. Lynch,
Madelon Blum, Law Offices of Timothy M.
Lynch, P.C., Anchorage, for Appellees.
Before: Moore, Chief Justice,
Rabinowitz, Burke, Matthews, and Compton,
Thomas Hernandez-Robaina appeals the superior court's
summary judgment against him. The main question presented is
whether his inability to understand English made him an "incompe
tent" under the statute which directs that statutes of
limitations do not run against incompetent persons. We answer
this question in the negative.
I. FACTS AND PROCEEDINGS
Thomas Hernandez-Robaina (Hernandez) is an Alaska
resident who arrived in the United States in 1980. He is
originally from Cuba and understands little or no English. On
October 31, 1983, Hernandez was arrested for trespass in the
Alaska Court System Building in Anchorage. Hernandez alleges
that the police repeatedly asked him to leave but that he could
not understand their requests.
Hernandez spent about two and a half months in custody
before the State dropped the trespass charges on January 12,
1984. While Hernandez was in custody, Dr. David Sperbeck, a
psychiatrist employed by the State of Alaska and the Alaska
Psychiatric Institute, wrote, according to Hernandez, "a
significantly damaging assessment . . . concerning [his]
psychiatric condition without ever having met [Hernandez]."
Hernandez also claims that Dr. Sperbeck's evaluation included a
letter "addressed to the Federal authorities"and "drew several
conclusions concerning [Hernandez's] mental state and . . .
potential for violence."
At the time of his arrest, Hernandez was already on
parole under the supervision of the Immigration and
Naturalization Service. Federal authorities detained Hernandez
upon his release from State custody, and ultimately sent him to a
federal penitentiary in Georgia pending an investigation of the
charges giving rise to his imprisonment in Alaska. Hernandez
alleges that "Dr. Sperbeck's letter was the sole tool utilized by
the Federal authorities to hold"him in federal custody.
While at the federal facility, Hernandez sought help to
gain release from custody in a letter in Spanish to the Honorable
Elaine Andrews, then Judge of the District Court, Third Judicial
District, Anchorage. Judge Andrews inquired into Hernandez's
case and, in a letter dated March 6, 1987, reported her findings
to an official at the federal facility and sent a copy of the
letter to Hernandez. Judge Andrews' letter states that many of
Hernandez's legal problems while in Alaska were "apparently
caused, at least in part, by [Hernandez's] language difficulty."
With regard to Dr. Sperbeck's psychiatric evaluation of
Hernandez, Judge Andrews wrote that she had "never seen such a
significantly damaging assessment with essentially no contact
with the defendant."
Hernandez was released from federal custody on March 3,
1988, and placed on parole in California. Hernandez's parole
ended on July 18, 1989, and he then returned to Alaska. On July
12, 1991, Hernandez filed suit in superior court against the
State of Alaska, the Municipality of Anchorage, and Dr. Sperbeck.
The State and Dr. Sperbeck filed a motion for judgment on the
pleadings claiming that (1) the statute of limitations had run on
Hernandez's claims; and (2) all defendants were immune from
liability under the doctrine of sovereign immunity. The motion
was later converted into a motion for summary judgment. Alaska
R. Civ. P. 12(b). The superior court granted summary judgment
but did not set forth the basis of its decision. The superior
court awarded the State and Dr. Sperbeck $7,500 in attorney's
fees, 75% of their reasonable attorney's fees. Hernandez
II. STATUTE OF LIMITATIONS
The parties agree that Hernandez's claims are governed
by the two-year statute of limitations in AS 09.10.070.
Hernandez's only colorable argument in support of the timeliness
of his suit is tolling due to the statutory disability of mental
Hernandez relies on AS 09.10.140(a)(2), which tolls the
statute of limitations for persons "incompetent by reason of
mental illness or mental disability." Hernandez argues that his
"limited understanding of English"and lack of "comprehension of
our legal system"constitute just such a disability. The State
responds that AS 09.10.140(a)(2) refers only to persons without
the mental capability to understand their rights, not to persons
who, due to lack of access to an attorney or otherwise, did not
actually know their rights. Thus, we face two asserted
interpretations of AS 09.10.140(a)(2).2
An individual's mental capacity to understand his or
her rights, not whether the individual actually understood or
knew of those rights, must be the gravamen of mental incompetency
under AS 09.10.140(a)(2). We have previously described the
proper test for an AS 09.10.140(a)(2) disability as follows:
whether a person "could know or understand his legal rights
sufficiently well to manage his personal affairs." Adkins v.
Nabors Alaska Drilling, Inc., 609 P.2d 15, 23 (Alaska 1980)
(emphasis added). The use of the word "could"instead of a word
such as "did" or "does" suggests an intent to measure an
individual's capabilities. The central question is whether the
individual would be able to comprehend the concepts and ideas of
which his or her rights consist if those matters were adequately
communicated. Furthermore, in setting forth this test, we
explained in Adkins: "This same test is applied whether the
applicable tolling statute uses the term `insane,' as AS
09.10.140 [formerly provided], or some other language such as
`incompetent by reason of mental illness' . . . ." Id. at 23
n.12. This passage clearly shows our preference for treating AS
09.10.140 as requiring a form of mental impairment affecting the
person's ability to perceive and understand his or her rights.3
Lastly, as Hernandez notes in his brief, "mental incompetency"
has been defined as addressing those "incapable of understanding
and acting with discretion in the ordinary affairs of life."
Black's Law Dictionary (6th ed. 1990) (emphasis added). For
these reasons, we reaffirm our commitment to the Adkins test as
interpreted in this opinion.
In the present case, difficulty with English and
confusion as to Alaska's legal system cannot, alone, constitute
mental incompetency. There can be no doubt that these factors
increased Hernandez's difficulty in obtaining information
regarding his rights. Many citizens face significant
difficulties in gaining information regarding their rights in
particular contexts. Yet, Hernandez's difficulties cannot be
said to raise a genuine issue of fact regarding his ability to
comprehend such information once obtained.
Since we find that the applicable statute of
limitations barred Hernandez's claims against the State and Dr.
Sperbeck, we AFFIRM the superior court's grant of summary
1 Hernandez makes three other arguments in favor of the
timeliness of his suit that we dispose of summarily. First,
Hernandez argues that the former statutory provision tolling the
statute of limitations for prisoners applies to him. AS
09.10.140(3). This statutory provision was repealed effective
September 3, 1986. We agree with those jurisdictions that hold
that a statutory amendment repealing the disability for prisoners
removes an individual prisoner's disability as of the effective
date of the statutory amendment. See Zuck v. State, 764 P.2d
772, 775 (Ariz. App. 1988); Kelly v. State, 395 N.Y.S.2d 311, 314-
16 (N.Y. App. 1977); Lerma v. Pecorino, 822 S.W.2d 831, 832-33
(Tex. App.-- Houston [1st Dist.] 1992). Thus, if applicable, AS
09.10.140(3) would toll the statute of limitations only until
September 3, 1986. Second, Hernandez argues that the discovery
rule delayed the running of the statute of limitations. Sharrow
v. Archer, 658 P.2d 1331, 1334 n.6 (Alaska 1983). Yet, Hernandez
was aware of the facts underlying all of his pled causes of
action as of his receipt of Judge Andrews' letter in March 1987.
Third, Hernandez claims that the State and Dr. Sperbeck should be
equitably estopped from asserting the defense of statute of
limitations for the period that the tortious acts of the State
kept him outside of Alaska. This argument too must fail because
Hernandez has suggested no conduct of the State or Dr. Sperbeck
that induced him to "postpone filing suit until the limitations
period has run." Gudenau & Co. v. Sweeney Ins. Inc., 736 P.2d
763, 768 (Alaska 1987).
2 Statutory interpretation is a question of law which we
answer by "adopt[ing] the rule of law which is most persuasive in
light of precedent, reason, and policy." Ford v. Municipality of
Anchorage, 813 P.2d 654, 655 (Alaska 1991). In applying our
adopted interpretation, we will affirm the superior court's
summary judgment only if the record presents no genuine issue of
material fact and "the moving party was entitled to judgment on
the law applicable to the established facts." Wassink v.
Hawkins, 763 P.2d 971, 973 (Alaska 1988). In making this
determination, we make "[a]ll reasonable inferences of fact from
proffered materials . . . against the moving party . . . and in
favor of the non-moving party . . . ." Sea Lion Corp. v. Air
Logistics of Alaska, Inc., 787 P.2d 109, 116 (Alaska 1990).
3 See also Feeley v. Southern Pac. Transp. Co., 285 Cal.
Rptr. 666, 667 (App. 1991) (person is mentally incompetent if
"incapable of caring for his [or her] property or transacting
business or understanding the nature or effects of his [or her]
acts") (alteration in original); Pederson v. Time, Inc., 532
N.E.2d 1211, 1213 (Mass. 1989) (mental incompetence is "`any
mental condition which precludes the plaintiff's understanding
the nature or effects of his acts' and thus prevents him from
comprehending his legal rights"); Harrington v. County of Ramsey,
279 N.W.2d 791, 795 (Minn. 1979) (mental incompetence "means
substantial inability, by reason of mental defect or deficiency,
to understand one's legal rights, manage one's affairs, and
prosecute the claim").
4 Hernandez also challenged the superior court's attorney's
fees award. We do not disturb the award of attorney's fees as it
was not "arbitrary, capricious, manifestly unreasonable, or
[based on] an improper motive." Tobeluk v. Lind, 589 P.2d 873,
878 (Alaska 1979).