You can
search the entire site.
or go to the recent opinions, or the chronological or subject indices.
Beilgard v. State (6/2/95), 896 P 2d 230
<![CDATA[
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, telephone (907) 264-0607, fax (907) 276-
5808.
THE SUPREME COURT OF THE STATE OF ALASKA
STEPHEN R. BEILGARD, )
) Supreme Court No. S-5729
Appellant, )
) Superior Court No.
v. ) 3AN-91-9317 CI
)
STATE OF ALASKA, ) O P I N I O N
)
Appellee. ) [No. 4215 - June 2, 1995]
______________________________)
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Anchorage,
J. Justin Ripley,
Judge.
Appearances: A. Lee Petersen, Law
Offices of A. Lee Petersen, P.C., Anchorage,
for Appellant. Raymond M. Funk, Assistant
Attorney General, Fairbanks, Bruce M.
Botelho, Attorney General, Juneau, for
Appellee.
Before: Moore, Chief Justice,
Rabinowitz, Matthews, Compton and Eastaugh,
Justices.
EASTAUGH, Justice.
I. INTRODUCTION
An Alaska state trooper arrested Stephen Beilgard on
May 16, 1991, pursuant to an arrest warrant issued on a complaint
charging Beilgard with five counts of state game violations.
Beilgard pled no contest to two counts, and the State dismissed
the remaining three counts. Beilgard later sued the State of
Alaska, alleging that it negligently caused his arrest and
subsequent loss of business. On appeal, Beilgard claims that the
superior court erred in granting summary judgment to the State
and dismissing his complaint.
This case turns on questions of public policy. We
affirm.
II. FACTS AND PROCEEDINGS
Beilgard is a resident of Wyoming, where he conducts a
hunting and guiding business. In early 1991 he and his partner,
Bill Depuy, decided to offer their customers a self-guided
fishing and black bear hunting trip to Alaska. Beilgard alleges
that he wrote to the Alaska Department of Fish and Game (ADF&G)
on January 24, concerning his intended plans, and requested
information about applicable state laws.1 Beilgard maintains
that the State did not respond to his inquiry until early April,
when it sent him application forms for an "Alaska Business
License,"a "Transporter License,"and a "Commercial Use Permit,"
without explanation.
On April 2 Beilgard telephoned Shaleen Harrison at the
Juneau office of ADF&G; she informed him of the bear hunting
season and the cost of fish and game licenses. Harrison also
informed Beilgard that, without a license, he could neither guide
nor accompany hunters while they hunted. Beilgard sent the State
his completed applications for a business license, transporter
license, and commercial use permit on April 10. The State
received his applications on April 16.
On May 3 state licensing examiner Kurt West, of the Big
Game Commercial Services Board, wrote to Beilgard. He informed
Beilgard that because Beilgard had represented on his transporter
license application that Gulf Air of Yakutat would be
transporting Beilgard's clients, Gulf Air needed to obtain the
transporter license. West also informed Beilgard that he needed
to obtain a "Commercial Use Permit Holder License"which would
allow him to rent gear and book hunts, but not to accompany
hunters in the field. Finally, West asked Beilgard to clarify
his intentions. On May 6 Beilgard mailed West a letter
describing his intended activities and requesting clarification
as to what was legal and illegal and what licenses he needed to
obtain.
On May 10, the day he received Beilgard's May 6 letter,
West replied with a letter stating:
In our last correspondence we ruled out
your application for a transporter license
because Gulf Air in Yakutat would be flying
the hunters from Yakutat. If you choose to
pursue the commercial use permit holder
license you are not permitted to go into the
field with the hunters nor are you permitted
to set up and take down camps for them. The
commercial use permit license allows you to
act as a hunt broker and rent gear to
hunters, however, under AS 08.54.460, you may
provide accommodations in the field at a
permanent lodge, house, or cabin only.
Setting up tent camps or spike camps is not
permitted. At this point, the only services
I believe that you can offer under a
commercial use permit [are] to rent gear and
offer your advice to hunters. You may not
accompany them in the field or provide any
type of guide-outfitting services. I have
enclosed a copy of the statute for your
review. If you still wish to pursue a
commercial use permit holder license, please
describe your services and I will apply $130
of the $280 already submitted towards that
license and refund the balance to you.
West enclosed a pamphlet entitled "Statutes and Regulations - Big
Game Commercial Services Board."2
Beilgard, however, did not wait for a response to his
May 6 letter. Instead, he and Depuy proceeded with the hunting
trip as planned; they had already solicited and received money
from several customers.3 Beilgard and Depuy left Wyoming May 8
and arrived in Yakutat May 9. Their clients arrived May 10.
Beilgard made no further attempts to communicate with the State
before the hunt began. Beilgard knew he did not possess a
transporter license or commercial use permit, but he planned "to
hire somebody with the proper licenses." Beilgard later
explained:
Because of this, we negotiated an
agreement with Dean Taylor, d/b/a Harlequin
Lodge, Yakutat, under which he became the
transporter and the commercial user with
respect to the group who were to hunt black
bear. We traded Mr. Taylor our camping
outfit and made payments amounting to more
than $1,500, and he agreed to fulfill our
obligations to the hunters with respect to
transportation and commercial use. Mr.
Taylor did have a Transporter Permit and a
Commercial Use Permit. Thereafter, I and Mr.
DePuy merely worked for Mr. Taylor, who was
the transporter and commercial user.
Beilgard had apparently contacted Dean Taylor before
May to request Taylor's services. Taylor had then informed the
Alaska State Troopers he believed Beilgard planned to engage in
illegal activity in Yakutat in May. Trooper Al Cain was assigned
to investigate.
On May 10 Taylor, State Trooper Gerry Shanahan, who was
posing as a representative of Taylor, Beilgard, and one of
Beilgard's clients, proceeded to a camp site on Knight Island.
All four helped set up the camp. On May 10 and 11 Taylor
transported three of Beilgard's clients to the camp. On May 15
Beilgard transported two of the clients, both of whom were paying
guests, from the camp back to Yakutat. On May 16 Taylor
transported Shanahan and the two remaining guests back to
Yakutat.
Upon his return to Yakutat, Trooper Shanahan informed
Trooper Cain that Beilgard had transported some of the paying
guests on a skiff to hunt for bear and later transported them
back to Yakutat. Shanahan also told Cain that Beilgard had
offered to trade Shanahan a Wyoming hunt for use of Shanahan's
brown bear tag. Trooper Cain then prepared a five count
complaint against Beilgard and obtained a warrant for his arrest.4
On May 16 Beilgard was arrested pursuant to the warrant
in front of his guests and clients. On August 29 Beilgard pled
no contest to counts one and two, guiding without a license and
transporting without a license; the State dismissed the other
three charges.
Beilgard thereafter filed a complaint against the State
and others, alleging negligence. He later moved to amend his
complaint, asserting four theories against the State: (1) it
negligently failed to answer Beilgard's routine inquiries about
fish and game licensing within a reasonable time (Count I); (2)
it negligently failed to process and issue Beilgard's commercial
use permit and transporter license (Count II); (3) it negligently
failed to keep adequate records containing prior correspondence
with Beilgard (Count III); and (4) it negligently failed to
adequately train and supervise state agents and employees (Count
IV). Beilgard claimed that the State's breach of those duties
led to his arrest in front of important clients and influential
people in his industry and thus caused him to lose business. The
State opposed the motion to amend. The court allowed Beilgard to
file the amended complaint as to Count II only and dismissed
Counts I, III, and IV of the amended complaint with prejudice.
The court then granted summary judgment to the State on the
remaining claim and issued a final judgment. Beilgard appeals
the partial denial of his motion to amend and the grant of
summary judgment in favor of the State on the remaining count.
III. DISCUSSION
Beilgard argues that the superior court erred in
rejecting his proposed amendments and granting summary judgment
to the State. He asserts that under Alaska law, he alleged
triable claims because the State owed him duties of care and
breached those duties, causing him damage. His underlying theory
is that if the State had not dealt negligently with his inquiries
and license applications, he would not have violated Alaska's
game laws, would not have been arrested, and would not have been
damaged. He also theorizes that Taylor was an agent of the
State, and that the State is liable for Taylor's tortious conduct
and for failing to supervise Taylor.
The State argues in response that it owed Beilgard no
duty of care, that it breached no duty to him, that it did not
proximately cause Beilgard damage because he was properly
arrested, and that it is entitled to statutory immunity. At oral
argument, counsel for the State also argued that, as a matter of
public policy, a convicted criminal should not be allowed to
impose tort liability on others for his criminal acts.
A. Standard of Review
The superior court considered matters outside the
pleadings when it entered orders rejecting some counts or
proposed counts for failure to state a claim upon which relief
could be granted and dismissing the remaining count on summary
judgment. We consequently review both orders as if they granted
summary judgment. Alaska R. Civ. P. 12(b); Shooshanian v.
Wagner, 672 P.2d 455, 460 (Alaska 1983).
When reviewing a grant of summary judgment, we must
"determine whether any genuine issue of material fact exists and
whether the moving party is entitled to judgment on the law
applicable to the established facts." R.E. v. State, 878 P.2d
1341, 1345 (Alaska 1994); Brock v. Alaska Int'l Indus., Inc., 645
P.2d 188, 190 n.6 (Alaska 1982); see also Alaska R. Civ. P.
56(c). In determining whether summary judgment was warranted, we
review the matter de novo, and view the facts presented in the
light most favorable to the non-moving party. Farmer v. State,
788 P.2d 43, 46 n.8 (Alaska 1990); Kollodge v. State, 757 P.2d
1028, 1032 (Alaska 1988).
B. Effect of Beilgard's Guilt
We first consider the effect of Beilgard's guilt on his
claim that the arrest caused him to suffer damages. Beilgard
argues that it was error to enter the orders disposing of his
claims and proposed claims because there were genuine issues of
material fact concerning the State's alleged negligent acts
leading to the arrest. The State raises numerous theories to
support affirmance. Because it is dispositive, we consider only
the public policy issue.
We have consistently recognized that public policy
precludes a criminal defendant convicted of a crime from imposing
liability on others for the consequences of his own antisocial
conduct. Shaw v. State, Dept. of Admin., 861 P.2d 566, 571-72
(Alaska 1993) (Shaw II) (concerning convicted criminal's
malpractice suit against his former criminal defense attorney);
Lord v. Fogcutter Bar, 813 P.2d 660, 663 (Alaska 1991) (holding
dram shop statute did not protect bar patron from the
consequences of his own intentional, criminal misconduct);
Adkinson v. Rossi Arms Co., 659 P.2d 1236, 1240 (Alaska 1983)
(barring suit against shotgun manufacturer by assailant for
damages resulting from his manslaughter conviction).5 In Shaw II
we stated: "As we did in Adkinson and Lord, we hold that if
plaintiffs engaged in the criminal conduct they are accused of,
then they alone should bear full responsibility for the
consequences of their acts, including imprisonment." Shaw II,
861 P.2d at 572.6
Beilgard failed to establish any genuine fact dispute
about his guilt on the five counts on which he was charged,
including the two counts to which he pled no contest and on which
he was sentenced.7 Public policy consequently bars his claims
against the State.
C. Other Issues
Our conclusion that Beilgard's lawsuit is barred by
public policy makes it unnecessary to consider other contentions
of the parties, including numerous other theories potentially
supporting affirmance.8
IV. CONCLUSION
For these reasons, we AFFIRM the superior court
judgment dismissing Beilgard's claims against the State.
_______________________________
1 Beilgard claims his January 24, 1991 letter stated:
I need some help with law definitions,
and an opinion of what is legal to do and
what is not. Please read on, and advise.
I intend to supply a tent, food,
camp, equipment, and boat transportation for
a small group of hunters in the spring of
1991. Their pursuit is Black Bear. I will
not be in the camp with them, but will check
on them from day to day. They will be
hunting alone, totally un-guided. While I
will recommend certain camp spots, they will
be welcome to be dropped off at any point
they choose. We may even be chartering a
plane to get them where they want to hunt.
In short, a typical drop camp situation where
I supply the area expertise and equipment,
for a fee.
The questions are these: 1. Am I
legal to do this? I AM NOT an Alaskan big
game guide or outfitter at this point. I do
outfit fishing trips. 2. Do I need any
licenses, and if so, where and how can I get
same? I am insured. 3. Is there anything
else that you can think of that I should be
aware of prior to showing folks where to hunt
for Black Bear?
2 Beilgard did not respond to West's May 10 inquiry until
May 23, well after the events occurred upon which Beilgard's tort
action is based. Beilgard's May 23 letter to West stated:
As per your letter of May 10, please
issue the Commercial Use Permit so that I can
offer to rent gear and give advice to
hunters, as well as to broker trips, as per
AS 08.54.460. I understand that you will
apply $130.00 of the previously sent $280.00
and refund the difference. Thank you.
3 Beilgard solicited customers for this trip by telephone
and mail. Several customers asserted that they each paid $1,950
to Beilgard for this outfitted combination bear hunt/fishing
trip. Beilgard's services were to include setting up a bear
hunting camp near Yakutat. The camp was to include tents, food,
cots, cooking equipment and bear bait.
4 Beilgard was charged with (1) guiding without a
license; (2) transporting without a license; (3) providing
commercial services without a permit; (4) representing himself to
be a guide/outfitter; and (5) soliciting a loan or transfer of a
brown bear tag.
5 Lord sued the Fogcutter Bar on the theory the bar was
criminally negligent for serving him alcoholic beverages while he
was intoxicated, causing him to suffer damages when he was later
prosecuted for felonies he committed while intoxicated. Lord,
813 P.2d at 663.
Adkinson sued Rossi on the theory Rossi manufactured a
defective shotgun which discharged, causing Butts' death, when
Adkinson pointed the shotgun at Butts. Following trial, Adkinson
was convicted of manslaughter. His conviction was upheld on
appeal. Adkinson claimed Rossi was liable for Adkinson's damages
resulting from his manslaughter conviction. Adkinson, 659 P.2d
at 1237.
In both Lord and Adkinson, we affirmed summary
judgments entered for the civil defendants. The defendants'
alleged conduct in those cases preceded the plaintiffs' criminal
acts. In Shaw II, Shaw's alleged criminal acts preceded his
defense attorney's alleged malpractice. Shaw moved successfully
for post-conviction relief. Shaw II, 861 P.2d at 572.
6 AS 09.17.030, enacted in 1986, prohibits a convicted
felon from suing for personal damages resulting from the
commission of the felony for which he or she was convicted. The
statute encompasses convictions arising from pleas of no contest.
While the statute does not apply to Beilgard because he was not
charged with a felony, it nonetheless "embodies the public policy
justification we articulated in Adkinson." Lord, 813 P.2d at
663.
7 There is no genuine dispute about Beilgard's guilt, at
least as to the two charges to which he pled no contest. Shortly
after his arrest, Beilgard admitted to an interviewing trooper
facts establishing his guilt. He pled no contest to two of the
counts. He never attempted to set aside his conviction by
appealing or moving for post-conviction relief. He did not
allege his innocence in his complaint or proposed amended
complaint. In listing genuine, material fact disputes in
opposition to the State's motion for summary judgment, he raised
no genuine dispute about his guilt on any count. He tacitly
recognizes his guilt when he argues that if the State had not
been negligent, his acts would have been lawful.
8 We consequently need not decide whether the State owed
Beilgard a duty of care, whether AS 09.50.250 provides immunity
on claims which arguably implicate discretionary functions or are
based on theories of misrepresentation or false arrest, whether
AS 08.02.020 applies, and whether Beilgard failed to exhaust
administrative remedies.
Beilgard seems to suggest that the State's pre-arrest
conduct was akin to entrapment. Beilgard did not formally claim
entrapment in the superior court or on appeal, and did not raise
entrapment as a defense in the criminal case. He has
consequently waived any possible claim based on an entrapment
theory. Schmidt v. Beeson Plumbing & Heating, Inc., 869 P.2d
1170, 1177 n.10 (Alaska 1994). We also note that the record
contains no evidence supporting a claim that the State entrapped
Beilgard.
]]>
