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Spenard Action Committee v. Evergreen Subdivision (8/25/95), 902 P 2d 766
<![CDATA[
NOTICE: This opinion is subject to formal 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; (907) 264-0607.
THE SUPREME COURT OF THE STATE OF ALASKA
SPENARD ACTION COMMITTEE, )
) Supreme Court Nos. S-5758/5797
Appellant and )
Cross-Appellee, ) Superior Court No.
) 3AN-87-10747 CI
v. )
) O P I N I O N
LOT 3, BLOCK 1, )
EVERGREEN SUBDIVISION, ) [No. 4245 - August 25, 1995]
)
Appellee and )
Cross-Appellant.)
_______________________________)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Brian C. Shortell and Karen L.
Hunt, Judges.
Appearances: Allen M. Bailey, Law Offices of
Allen Bailey, Anchorage, for Appellant and
Cross-Appellee. James D. Gilmore and Brian
M. Doherty, Gilmore & Doherty, Anchorage, for
Appellee and Cross-Appellant.
Before: Moore, Chief Justice, Rabinowitz,
Matthews, Compton, and Eastaugh, Justices.
RABINOWITZ, Justice.
Spenard Action Committee (SAC) instituted an action for
abatement of a public nuisance and injunctive relief against Lot
3, Block 1, Evergreen Subdivision (Lot 3), alleging that The
Chateau, a massage parlor and escort service located on the
property, was operating as a house of prostitution. The superior
court denied relief based on its conclusion that SAC had not
shown that a public nuisance existed at the time of trial.
On appeal, SAC first argues that the superior court
should have established as a matter of law, as a sanction for Lot
3's alleged discovery violations, that The Chateau was a house of
prostitution. Second, SAC argues that the superior court erred
in concluding that the public nuisance must be shown to exist at
the time of trial. Third, SAC argues that the superior court
erred in determining the proper burden of proof, and in excluding
certain evidence. And fourth, SAC argues that it is a public
interest litigant and that the superior court's award of costs
and attorney's fees to Lot 3 was therefore improper.
On cross-appeal, Lot 3 argues that the superior court
erred in awarding SAC $12,000 in costs and attorney's fees as a
sanction for Lot 3's discovery violations. In addition, Lot 3
argues that the superior court erred in allowing police officers
to testify as experts.
I. FACTS AND PROCEEDINGS
SAC is a non-profit Alaska corporation organized for
the purpose of discouraging prostitution in the Spenard area of
Anchorage. SAC's activities include the investigation of
suspected houses of prostitution and the implementation of a
"camera watch"program in which volunteers observe and attempt to
identify individuals who enter or leave these alleged houses of
prostitution.
In October 1987, the Vice Unit of the Anchorage Police
Department conducted a raid on The Chateau. The police seized a
number of items from the premises including 4,752 Rolodex cards
with the names of, and information about, The Chateau's
customers. Following the raid, L.H., an employee of The Chateau,
was charged with assignation,1 and Mary Elstad, the owner of The
Chateau, was charged with owning and operating a house of
prostitution. The raid resulted in only one conviction. A jury
found L.H. guilty of assignation, and the district court imposed
a suspended imposition of sentence for one year. L.H.'s
conviction was subsequently set aside. Elstad was acquitted of
the charge against her.2
A few days after the raid SAC filed an action against a
number of defendants, including Lot 3, for abatement of public
nuisances and injunctive relief.3 In its complaint, SAC alleged
that The Chateau was using Lot 3 "for purposes of lewdness,
assignation, prostitution, or other immoral acts." Lot 3
answered, and discovery commenced.
In furtherance of its discovery efforts, SAC subpoenaed
Sergeant Mark O'Brien of the Anchorage Police Department for
deposition and commanded him to bring the Rolodex files that the
police had seized during the October 1987 raid. In October 1988,
SAC served Elstad with a similar subpoena which again commanded
production of the Rolodex files.4 Lot 3 moved for a protective
order to prohibit SAC from discovering this evidence. The
superior court denied Lot 3's motion in November 1988, but
allowed Lot 3 to submit specific items to the superior court for
an in camera review. Lot 3 subsequently submitted the Rolodex
files to the superior court with a motion requesting that the
superior court find all information in the Rolodex files, other
than the names of The Chateau's customers, to be constitutionally
protected. Following its in camera review, the superior court
ruled that the name, address, telephone number, employer data,
driver's license number, and social security number of each
customer should be produced, but that any other information was
constitutionally protected.
Both SAC and Lot 3 petitioned this court for review of
the superior court's order.5 This court denied Lot 3's petition
for review, and responded to SAC's petition for review as
follows:
1. The petition for review is granted.
2. The order of the superior court
dated December 7, 1988, ruling that all
information contained in the two rolodexes
and one receipt book is protected by the
constitutional right to privacy is reversed
in part.
3. The information on the aforesaid
documents relating to customer sexual
preferences should be produced as such
information is relevant to the petitioner's
argument that the establishment is used for
purposes [of] prostitution. The customers'
privacy interests can be protected by
blanking out their names and other
identifying information on the copies of the
documents which are produced.
Spenard Action Committee v. Lot 3, Block 1, Evergreen
Subdivision, Alaska Supreme Court Order No. S-3140 (Apr. 7,
1989); Lot 3, Block 1, Evergreen Subdivision v. Spenard Action
Committee, Alaska Supreme Court Order No. S-3118 (Apr. 7, 1989).
Counsel for Lot 3 construed this order to mean that
Elstad must produce photocopies of the cards with information
about the customers' sexual preferences, but that she could blank
out the customers' names and addresses. Counsel for Lot 3
advised Elstad in conformity with this interpretation.
Accordingly, when counsel for SAC requested production of the
cards themselves, counsel for Lot 3 responded that the cards need
not be produced. After further discussions between counsel for
both parties revealed that they disagreed as to the meaning of
this court's orders, Lot 3's counsel suggested that they
informally approach the court clerk and ask whether there had
been some confusion concerning the orders. Counsel for SAC did
not respond to this suggestion.
In July 1989, Zachary Thorderson, a friend of Elstad's
fiancee, was staying at Elstad's home. Elstad and Thorderson
averred in affidavits that Thorderson asked Elstad about the
Rolodex files after seeing them in the closet of the room where
he was sleeping. According to the affidavits, Elstad had
explained what these files were, that they were involved in this
litigation, and that eventually she would have to blank out the
names and addresses on the cards and produce the sexual
preference information. Thereafter, while Elstad was away from
home for an extended period of time, Thorderson removed the
Rolodex cards, blanked out the names and addresses, and then
returned the cards to the closet without telling Elstad what he
had done. In their affidavits, both Elstad and Thorderson state
that Elstad did not direct or request Thorderson to blank out the
names and addresses.
SAC filed a motion for an order directing Lot 3 to show
cause why it should not be held in contempt for violating this
court's April 1989 orders by failing to produce the Rolodex
files. The superior court granted SAC's motion. After
conducting hearings, the superior court issued an order relating
to discovery. The superior court found "a reasonable basis for
confusion in interpretation by the parties"of this court's April
1989 orders. The superior court construed the orders to require
that Elstad produce two sets of Rolodex cards: one set
containing the names, addresses, telephone numbers, driver's
license numbers and social security numbers of The Chateau's
customers, but with all information about sexual preferences and
practices blanked out; and another set with information about the
customers' sexual preferences and practices, but with all other
information blanked out. Lot 3 then filed a petition for review
to this court seeking review of the superior court's discovery
order, but this court denied the petition. Lot 3, Block 1,
Evergreen Subdivision v. Spenard Action Committee, Alaska Supreme
Court Order No. S-4002 (July 23, 1990).
Elstad averred in her affidavit that in approximately
January of 1991 she retrieved the Rolodex files from the closet
and discovered for the first time that Thorderson had blanked out
the names and addresses. Lot 3 subsequently produced photocopies
of the blanked-out cards. At some time afterwards, Elstad
gathered the Rolodex cards into brown paper bags and placed them
in her kitchen. Her fiancee, without checking with her to find
out what should be done with the contents of the bags, threw them
into the garbage.
Thereafter, SAC filed a motion pursuant to Alaska Civil
Rule 37(b) for entry of an order establishing that The Chateau
operates as a house of prostitution and precluding Lot 3 from
offering proof to the contrary. The superior court ordered
Elstad to show cause why she should not be held in contempt of
court for failure to respond to the court's discovery order. The
superior court then issued an order regarding Elstad's alleged
discovery violations. The superior court denied SAC's motion for
an establishment-preclusion order on the ground that SAC failed
to demonstrate that the information on the Rolodex cards was
unavailable through any other source. However, the superior
court also concluded that Elstad had been "so incredibly careless
with the business records ordered produced that her carelessness
rises to the level of being intentional or wilful failure to
comply with the court's order compelling discovery of those
business records." The superior court then ordered Lot 3 to pay
SAC's attorney's fees from the day that SAC first subpoenaed the
police to produce the Rolodex files to June 19, 1991, when SAC
filed its records of actual costs and attorney's fees incurred in
respect to this discovery issue. Thereafter, the superior court
entered an order awarding $12,000 in attorney's fees to SAC for
Lot 3's discovery violation.6
At trial, one of the police officers who participated
in the October 1987 raid on The Chateau testified that in his
opinion the premises were a place where prostitution had just
occurred, but that he had formulated no opinion as to whether The
Chateau was a house of prostitution. Another officer who had
participated in the raid testified that in his opinion The
Chateau was operating as a house of prostitution at the time the
raid was carried out.
At the bench trial Elstad testified that she warned any
person who worked at The Chateau that if prostitution occurred on
the property, the parties who engaged in prostitution would be
terminated immediately. When L.H. was charged with assignation
in 1987, she was immediately fired. Similarly, Elstad terminated
another individual who had been arrested in 1986 for assignation,
but against whom the charge had been subsequently dropped. In
addition, signs were posted on the premises alerting patrons that
The Chateau did not permit prostitution. The superior court also
heard testimony that The Chateau was licensed by the Municipality
of Anchorage as a physical culture studio, and that the
Municipality had never rejected The Chateau's yearly applications
for a license or for renewal.7
After each side presented its evidence, the superior
court articulated a number of oral findings. The superior court
concluded that "in October 1987 The Chateau was a business that
included prostitution as one of its primary services." However,
recognizing that the case did not come to trial until January
1993, approximately five years after SAC had filed its complaint,
the superior court also found that SAC had not shown that The
Chateau had been operated as a house of prostitution since that
time:
The evidence shows no offers of sex for
money by Chateau employees after October
1987, although the business makes
approximately the same amount of money as it
did in 1987.
. . . .
After consideration of all of the
evidence, I find that the . . . evidence is
insufficient to prove, even by a
preponderance, that The Chateau has been
operated as a house of prostitution at any
time after 1987. Although the evidence
presented is sufficient to create suspicion,
it does not support a . . . factual or legal
conclusion to that effect.
. . . .
Alaska Statutes 09.50.170 to 240
authorize a citizen to bring an action to
enjoin an existing nuisance. . . . However,
neither injunction nor abatement is
authorized . . . unless the nuisance
presently exists. The evidence in this case
is insufficient to show that a nuisance
exists on The Chateau premises.8
Lot 3 then filed a motion seeking an award of $77,818
in attorney's fees. SAC opposed the award, arguing that it was a
public interest litigant. The superior court denied SAC public
interest litigant status and awarded Lot 3 $25,000 in attorney's
fees and $3,782 in costs.
SAC now appeals and Lot 3 cross-appeals from the
superior court's final judgment.9
II. DISCUSSION
A. Whether the Nuisance Must Exist at the Time of Trial
In its findings of fact, the superior court concluded
in part that "in October 1987 The Chateau was a business that
included prostitution as one of its primary services." However,
the superior court also concluded that SAC had not shown that The
Chateau had operated as a house of prostitution since that time
and at the time of trial. The superior court further concluded
that neither an injunction nor abatement is authorized under AS
09.50.170-.240 unless the nuisance "presently exists."10 Because
SAC failed to prove that a nuisance presently exists, the
superior court denied SAC's request for an injunction and order
of abatement. On appeal, SAC argues that the superior court
erred because AS 09.50.170-.240, specifically AS 09.50.210, only
requires that the nuisance be shown to exist at the time the
complaint is filed. In response, Lot 3 argues that these
statutes require that the nuisance be shown to exist at the time
the trial is held.
Thus, we must determine whether AS 09.50.170-.240
requires that a nuisance be shown to exist at the time the
complaint is filed or at the time the trial is conducted.11 We
hold that AS 09.50.170-.240, specifically AS 09.50.210, requires
that a nuisance be shown to exist at the time the complaint is
filed rather than at the time of trial. Requiring that the
nuisance in question be shown to exist at the time of trial would
frustrate the underlying purpose of the above noted statutes.
Such a holding would invite defendants in nuisance suits to evade
liability by voluntarily abating the nuisance between the filing
of the complaint and the date of trial. Then, after the threat
of trial has passed or the trial has been held, the defendant
could resume the offensive activity with impunity. In addition,
by enacting AS 09.50.170-.240, the Legislature expressed its
specific intent "to suppress houses of lewdness and prostitution,
and to prevent persons from maintaining or conducting such houses
. . . ." Territory v. House No. 24, 7 Alaska 611, 615 (1927).12
Thus, we construe these statutes in a manner to avoid frustrating
their remedial purpose.
Our interpretation of AS 09.50.170-.240 is supported by
decisions from other jurisdictions. Several courts in other
states have suggested that a nuisance need not be shown to exist
at the time of trial. In King v. Commonwealth ex rel. Smith, 238
S.W. 373 (Ky. 1922), the defendant argued that the trial court
should not have issued a permanent injunction against
prostitution on his property because he voluntarily abated the
nuisance after the suit had commenced. Id. at 377. The court
rejected this argument stating that the trial court "had a broad
discretion to grant or withhold the injunctive remedy sought by
the commonwealth." Id. The court added that it was "satisfied
that [the trial court] wisely granted the permanent injunction,"
as "the perpetual injunction was necessary in this case because
of the nature of the business enjoined and the likelihood of it
reviving under cover as soon as the stay of the court is
withdrawn." Id. And in People ex rel. Bradford v. Burch, 189 P.
716, 718 (Cal. App. 1920), the California Court of Appeals
considered an action under the Red Light Abatement Law and stated
that a nuisance must be shown to exist at the time of the
commencement of the action. However, the court also stated that
such an action should be dismissed when a nuisance has been
voluntarily abated in good faith before a complaint is filed.
Id.; see also People ex rel. Van De Kamp v. American Art Enters.,
Inc., 656 P.2d 1170, 1173 n.10 (Cal. 1983). Similarly, in Coty
v. Ramsey Associates, Inc., 546 A.2d 196, 201 (Vt.), cert.
denied, 487 U.S. 1236 (1988), the court held that a pig farm
constituted a nuisance despite the fact that the owners abated
the nuisance before the trial began. And finally, in State ex
rel. Miller v. Anthony, 647 N.E.2d 1368, 1373 (Ohio 1995), the
Ohio Supreme Court recently held that a nuisance need not be
shown to exist at the time of the abatement hearing, concluding
that such an interpretation would be "unnecessarily restrictive."
However, a court should have the discretion to refuse
to issue an injunction or an order of abatement if the defendant
has voluntarily abated the nuisance after the filing of the
complaint, depending on the good faith of the defendant and the
circumstances of the case. For example, in Commonwealth ex rel.
Funk v. Miehl, 258 S.W.2d 493 (Ky. 1953), the court affirmed the
denial of an injunction against a public nuisance because the
nuisance had been voluntarily abated after the filing of the
complaint. To this effect, the court explained:
One fact always to be considered in the
granting or refusal of injunctive relief is
whether or not there is any reasonable
necessity for the injunction. . . . [W]here
the abatement has continued for a long period
of time and the circumstances are such as to
indicate that the offensive acts are not
likely to be repeated, the court, in the
exercise of a discretion inherent in this
type proceeding, may properly conclude that
the necessity for the injunction no longer
exists.
Id. at 494. The court added that "the application for an
injunction is addressed to the sound discretion of the
Chancellor." Id.13 Thus, we conclude that if a nuisance is found
to exist at the time the complaint is filed but not at the time
of trial, the trial court has the discretion not to issue an
injunction or order of abatement. To this effect, the court
should consider the good faith of the defendant, the likelihood
of recurrence of illegal activity, and other circumstances of the
case.14
B. The Appropriate Burden of Proof
As to the appropriate burden of proof under AS
09.50.170-.240, the superior court stated:
The evidence in this case is insufficient to
show that a nuisance exists on the defendant
premises on which The Chateau is operated.
The Court has utilized the burden of proof of
the preponderance of the evidence standard in
making this decision. There is a strong
argument that the burden of proof in this
case should be the higher standard of clear
and convincing evidence, however, it is clear
that the evidence is insufficient under
either the preponderance of the evidence
standard or the clear and convincing proof
standard.
On appeal, SAC argues that the appropriate burden of proof is a
preponderance of the evidence. In response, Lot 3 seems to argue
that this court should require a clear and convincing evidentiary
standard under AS 09.50.170-.240.15 This presents a question of
law to which this court applies its independent judgment,
adopting the rule of law that is most persuasive in view of
precedent, reason and policy. Ford v. Municipality of Anchorage,
813 P.2d 654, 655 (Alaska 1991).
We hold that in regard to suits brought under AS
09.50.170-.240, the appropriate burden of proof is clear and
convincing evidence. This ruling is supported by a number of
decisions from other jurisdictions. In State ex rel. Miller v.
Anthony, 647 N.E.2d 1368, 1374 (Ohio 1995), the Ohio Supreme
Court held that clear and convincing evidence is the appropriate
burden of proof under Ohio's nuisance abatement statute. In
State ex rel. Cox v. Taft, 100 S.E.2d 161 (W. Va. 1957), the
court construed a public nuisance statute, stating "[t]he weight
of authority appears to be that in a proceeding to abate a
nuisance the proof necessary to establish the existence of a
nuisance need not be convincing beyond a reasonable doubt, but
there is respectable authority to the effect that such proof must
be 'clear, convincing and satisfactory.'" Id. at 165 (quoting 66
C.J.S. Nuisances 127). And in State v. Henderson, 669 P.2d
113, 113-14 (Ariz. App. 1983), the court applied the clear and
convincing evidence standard under a public nuisance statute
similar to the one at issue in this case.16 Moreover, this court
has required clear and convincing evidence in other areas
concerning real property such as reformation of a deed and
abandonment of a mining claim. D.M. v. D.A., 885 P.2d 94 (Alaska
1994); Miscovich v. Tryck, 875 P.2d 1293 (Alaska 1994).
Finally, the nature of the sanctions under the
abatement statute supports our adoption of a clear and convincing
standard of proof. The sanctions imposed under AS 09.50.210 are
severe. All personal property used in the nuisance must be
removed and sold, and the building used in the nuisance must be
closed for one year.17 Because the abatement law adopts severe
civil remedies, we believe that the statute can be characterizesd
as falling somewhere between a civil and a criminal statute.
Thus, the standard of proof should be one which lies between the
civil standard of a preponderance of the evidence and the
criminal standard of beyond a reasonable doubt, that is, clear
and convincing evidence.18
C. Sanctions for Elstad's Discovery Violations
If a party fails to obey a discovery order, a trial
court may impose sanctions under Civil Rule 37(b).19 We review a
trial court's decision relating to the imposition of a discovery
sanction for an abuse of discretion. Underwriters at Lloyd's
London v. The Narrows, 846 P.2d 118, 119 (Alaska 1993). Where a
trial court enters findings of fact in determining whether
discovery sanctions are appropriate, we will not set aside such
findings unless they are clearly erroneous. Alaska R. Civ. P.
52(a). "We will not declare a trial court's finding to be
clearly erroneous unless, after a review of the entire record, we
are left with a definite and firm conviction that a mistake has
been made." Demoski v. New, 737 P.2d 780, 784 (Alaska 1987).
1.The Denial of the Establishment-Preclusion Order
The superior court denied SAC's request for an order
establishing that The Chateau was operating as a house of
prostitution in 1987 and still operates as a house of
prostitution and similarly denied its request to preclude Lot 3
from offering proof to the contrary. This ruling was based on
the superior court's determination that SAC had failed to
demonstrate that the information contained in the Rolodex files
was unavailable by any other means. On appeal, SAC asserts that
the superior court abused its discretion by failing to grant its
request for an establishment-preclusion order.
Conclusive resolution of an issue against a party as a
sanction for discovery violations should only be invoked in
extreme cases. Underwriters, 846 P.2d at 119. Thus, before
issuing an establishment-preclusion order which would have the
practical effect of ending litigation, a trial court must: (1)
find willfulness on the part of the non-complying party; (2)
undertake a reasonable exploration of possible and meaningful
alternatives to litigation-ending sanctions; and (3) determine
that the information is not available by any other means. Id. at
119-20; Sandstrom & Sons, Inc. v. State, 843 P.2d 645, 647-48
(Alaska 1992). To this effect, we have stated as follows:
For this reason, the trial court must find
that the non-complying party "willfully"
violated the discovery order in question.
"Willfulness" is defined as the "conscious
intent to impede discovery, and not mere
delay, inability or good faith resistance."
We have held that before a court may impose
litigation ending sanctions for discovery
violations the record must clearly indicate a
reasonable exploration of possible and
meaningful alternatives to dismissal.
Finally, the sanction must be "sufficiently
related"to the discovery violation. We must
determine "if the established issue is an
_element of the dispute that cannot be
determined on the merits without disclosure
of the evidence the court has ordered the
party to produce._"
Underwriters, 846 P.2d at 119-20 (citations omitted).
In support of its position, SAC points out that the
superior court's October 1991 order included a finding that
Elstad's discovery violations were willful. In addition, SAC
argues that subsequent trial testimony showed that witness
information was unavailable from any source other than the
Rolodex files. The trial testimony to which SAC refers on appeal
consists of Elstad's statements that she made no new entries in
her Rolodexes after 1987, an opinion from SAC's president that
the police have obtained few prostitution convictions since 1987,
and a statement from one of the police officers that enforcing
laws against prostitution was of the lowest priority.
However, even assuming that Elstad's discovery
violation was willful, the testimony on which SAC relies does not
demonstrate that the information was unavailable by any other
means. In fact, as Lot 3 points out, SAC could possibly have
obtained customer names by deposing Elstad herself. In addition,
SAC could have identified customers through its "camera watch"
program, an operation that had run periodically from 1987 to the
time of trial in which SAC volunteers filmed customers entering
suspected houses of prostitution, recorded the license plate
numbers of vehicles parked in front of such establishments, and
used the numbers to obtain some 200 customer names through
inspection of records at the Division of Motor Vehicles. Thus we
conclude that the superior court's determination that SAC failed
to show that the information was unavailable by any other means
was not clearly erroneous. Based on the foregoing, we hold that
the superior court did not abuse its discretion in rejecting
SAC's request for the entry of an establishment-preclusion order
against Lot 3.
Additionally, SAC appears to argue that the superior
court's assessment of attorney's fees against Lot 3 is too
lenient a sanction. Even in the circumstance where a violation
of a discovery order is willful, we have not established a
standard requiring trial courts to elevate a cost sanction to one
of issue preclusion. Koehring Mfg. Co. v. Earthmovers of
Fairbanks, Inc., 763 P.2d 499, 508-09 (Alaska 1988). Rather,
this court has stated only "minimum criteria that must be met
when a court imposes issue preclusion." Id. at 508.
2. The Attorney's Fees Sanction
On cross-appeal, Lot 3 argues that the superior court
abused its discretion in awarding $12,000 in attorney's fees to
SAC as a Rule 37(b) discovery sanction because Elstad's conduct
was not willful. In addition, Lot 3 argues that the $12,000
award improperly includes costs incurred by SAC in attempting to
obtain the Rolodex files from the Anchorage Police Department, an
initiative that preceded any alleged discovery violations on
Elstad's part.
We need not address Lot 3's argument that Elstad's
conduct was not willful because an award of attorney's fees
against Lot 3 is proper regardless of whether Elstad's behavior
was willful. An award of costs and attorney's fees under Civil
Rule 37(b)(2) is distinct from the Rule's list of enumerated
sanctions:
In lieu of any of the foregoing orders
[or] in addition thereto, the court shall
require the party failing to obey the order
or the attorney advising that party or both
to pay the reasonable expenses including the
attorney's fees, caused by the failure,
unless the court finds that the failure was
substantially justified or that other
circumstances make an award of expenses
unjust.
Alaska R. Civ. P. 37(b)(2) (emphasis added).
Authorities construing the parallel Federal Rule of
Civil Procedure 37(b)(2) consider willfulness to be relevant only
as to the selection of the sanctions to be imposed, not to the
imposition of attorney's fees and costs. 8A Charles A. Wright et
al., Federal Practice and Procedure 2289, at 672-74 (1994).
For example, in David v. Hooker, Ltd., 560 F.2d 412, 415 (9th
Cir. 1977), the court reviewed a sanction of attorney's fees and
expenses imposed pursuant to a party's motion for sanctions for
failure to comply with a discovery order. The court noted that
the controlling statutory provision was Rule 37(b) and not Rule
37(a). Id. at 419. Then, relying on the Notes of the Advisory
Committee to Rule 37, the court held that willfulness is not a
necessary element for the imposition of expenses and attorney's
fees under Rule 37(b). Id. Likewise, we hold that willfulness
is not required for a sanction of attorney's fees and expenses
under Alaska Civil Rule 37(b)(2).
Second, Lot 3 argues that the award of $12,000 in costs
and attorney's fees improperly includes costs incurred by SAC in
attempting to obtain the Rolodex files from the Anchorage Police
Department. The superior court ordered Lot 3 to pay "the
reasonable attorney fees and costs incurred by plaintiff from the
day it subpoenaed the police officer to get the rolodex
information until June 19, 1991 . . . ." Counsel for SAC
submitted an affidavit and a supplemental affidavit of attorney's
fees incurred by SAC from the time the first subpoena was issued
for the police sergeant who had custody of the Rolodex files.
The total amount of attorney's fees was $16,426.85. The superior
court subsequently ordered Lot 3 to pay SAC $14,000 in attorney's
fees. The superior court then reduced this order to a judgment
in the amount of $12,000. The judgment states in part as
follows:
Although the exact dollar amount at
issue as a result of the defendant's (Elstad)
opposition to plaintiff's submission of fees
and costs are well-taken in part, even
careful review by the court makes exact
calculation nearly impossible on an activity
per minute basis . . . . Consequently, this
court has made an activity by activity
estimation.
Lot 3 then requested the court to reconsider the $12,000 award of
attorney's fees. Lot 3 specifically objected "to all of the fees
sought prior to October 24, 1988, when Ms. Elstad was served with
a subpoena for her deposition." The superior court agreed to
consider Lot 3's objections.20 Then, the superior court again
reduced the award of attorney's fees in the amount of $12,000 to
judgment. However, the superior court failed to make specific
findings as to whether the $12,000 award contains fees prior to
October 24, 1988, when Elstad was served with a subpoena for her
deposition and, if so, why the award contains such fees.
While we agree that an exact calculation of attorney's
fees is extremely difficult, we conclude that the superior court
erred in failing to make findings in support of the $12,000
award. On remand, the superior court should make specific
findings as to whether the $12,000 award contains fees incurred
by SAC in attempting to obtain the rolodex files from the
Anchorage Police Department prior to October 24, 1988, and if so,
to eliminate such fees from its award.
D. Evidentiary Rulings
On appeal, SAC argues that the superior court erred in
excluding any evidence regarding L.H.'s conviction for
assignation. On cross-appeal, Lot 3 argues that the superior
court erred in permitting police officers to testify as expert
witnesses as to whether The Chateau was operating as a house of
prostitution. We review a trial court's ruling relating to the
admissibility of evidence, including the admissibility of expert
testimony, for an abuse of discretion. In re D.J.A., 793 P.2d
1033, 1035-36 n.2 (Alaska 1990); Patricia R. v. Sullivan, 631
P.2d 91, 99 (Alaska 1981).
1. Exclusion of L.H.'s Conviction for Assignation
As a result of the October 1987 raid, L.H., an employee
of The Chateau, was tried and convicted of assignation.21 After
receiving a suspended imposition of sentence, L.H.'s conviction
was subsequently set aside upon her successful completion of a
probation period. SAC sought to offer the conviction to
establish that The Chateau was operating as a house of
prostitution in October 1987. The superior court excluded the
conviction due to the lack of privity between L.H. and Lot 3. On
appeal, SAC challenges the superior court's exclusion of L.H.'s
conviction. In response, Lot 3 argues that this court should
uphold the exclusion of L.H.'s conviction because it was
subsequently set aside, and because of the lack of privity
between L.H. and Lot 3.
We first address the question of whether a conviction
that has been set aside may be introduced as evidence in a
subsequent proceeding.22 Lot 3 relies on Wickham v. State, 844
P.2d 1140 (Alaska App. 1993), in support of its argument that
L.H.'s conviction should be excluded because it was subsequently
set aside. In Wickham, the court of appeals held that a
conviction set aside under AS 12.55.085 cannot be used for
impeachment purposes in a future proceeding. Id. at 1144.
However, the use of a conviction for impeachment purposes differs
from the use of a conviction as relevant evidence that a crime or
event occurred. The court's holding in Wickham was based on its
conclusion that the set aside provisions of AS 12.55.085 require
a substantial showing of rehabilitation, and that evidence of a
conviction is inadmissible under Alaska Rule of Evidence
609(d)(2) if an offender has been rehabilitated. Id. at 1142-44.
Because the court's decision to exclude the conviction was based
on the text of Evidence Rule 609(d)(2), Wickham does not apply to
this case.
A set aside does not mean that the crime, and the
events surrounding the crime, never occurred. In City of St.
Paul v. Froysland, 246 N.W.2d 435, 438 (Minn. 1976), the
Minnesota Supreme Court stated that "the dismissal of a charge
following the period of stayed imposition of sentence is in the
nature of a pardon, not a declaration of innocence." Thus, there
is no reason why a set aside should render a judgment of
conviction inadmissible as evidence that the crime occurred.
Moreover, the Model Penal Code provides that a conviction which
has been discharged and set aside may still be introduced as
relevant evidence in a future proceeding. Model Penal Code
301.5 and explanatory note (1985). Based on the foregoing, we
hold that a conviction which has been set aside may be introduced
as evidence in a future proceeding for certain purposes.23
However, we must still determine whether the criminal
conviction of a non-party following trial may be admitted at a
subsequent civil trial as evidence of the facts on which the
judgment rests. This is a question of first impression in
Alaska. In Scott v. Robertson, 583 P.2d 188 (Alaska 1978), this
court held that the criminal conviction of a party is admissible
in a subsequent civil trial where:
(1) the prior conviction is for a serious
criminal offense; (2) the defendant in fact
had a full and fair hearing; and (3) it is
shown that the issue on which the judgment is
offered was necessarily decided in the
previous trial.
Id. at 191-92 (footnotes omitted). This court further held that
such convictions should be admitted as conclusive proof of the
facts necessarily determined. Id. at 193. However, Scott
applies to the admission of a criminal conviction of a party.
Lot 3 argues, and the superior court ruled, that L.H.'s
conviction is not admissible under Scott due to the lack of
privity between L.H. and Lot 3. The rule of privity "states that
the only persons bound by a judgment are those who are parties to
the action or in privity with the parties." Pennington v. Snow,
471 P.2d 370, 375 (Alaska 1970). However, SAC sought to
introduce the conviction as evidence of the facts on which it
rests and not as conclusive proof of those facts. Thus, privity
is not required if the conviction is admissible as evidence.24
Several federal courts have admitted prior criminal
judgments against a non-party to the original suit as evidence of
the facts on which the judgment rests. For example, Schwartz v.
United States, 582 F.Supp. 224 (D. Md. 1984), involved a dispute
between Schwartz and the federal government over ownership of
corporate stock. To prove that Schwartz did not own the stock,
the government used the special verdict from a prior criminal
trial in which Schwartz's associate, Irvin Kovens, had been
convicted. Id. at 227-28. The jury in that trial found that
Kovens owned the stock. Id. at 225. The court agreed with
Schwartz that the finding in the previous trial could not estop
him from asserting ownership of the stock because he had not been
a party to that trial; however, the court admitted the jury's
special verdict into evidence against Schwartz. Id. at 227-28;
see also Hiroshi Motomura, Using Judgments as Evidence, 70 Minn.
L. Rev. 979, 1012 (1986).
However, in Schwartz the court relied in part upon
Federal Rule of Evidence 803(22) in admitting the judgments.25
The Commentary to Alaska Rule of Evidence 803 notes that the
Alaska rule omits an exception for criminal judgments like that
contained in Federal Rule 803(22). To this effect, the
Commentary states as follows:
If a judgment of guilty in a criminal case,
which follows proof beyond a reasonable
doubt, is to have impact in subsequent cases,
the impact should be by way of collateral
estoppel, not by admitting the previous
judgment. The judgment tells the second
trier of fact nothing; that trier will either
disregard it or defer to it, neither of which
tactic is intended by the Federal Rule. . . .
But the fact remains that the trier of fact
in the second case cannot know how to use the
first finding. There is no reason to adopt a
rule that can only confuse the trial process.
Alaska Evidence Rules Commentary, Rule 803.
Thus, the Alaska Rules of Evidence articulate a policy
against admitting criminal judgments as evidence. Moreover, in
Scott this court noted Professor McCormick's concerns that
parties will tend to rely too heavily on the prior conviction and
will not introduce sufficient evidence at the second trial.
Scott, 583 P.2d at 191 n.11 (citing McCormick on Evidence 318,
at 739 (2d ed. 1972)). Based on the foregoing, we hold that the
criminal conviction of a non-party following trial is not
admissible as evidence in a subsequent civil proceeding.
2. Admission of Police Officers' Expert Opinions
Prior to trial Lot 3 filed a motion in limine seeking
an evidentiary ruling that no Anchorage police officer should be
permitted to testify as an expert witness regarding whether The
Chateau was operated as a house of prostitution. The superior
court denied the motion. One of the police officers who
participated in the October 1987 raid testified that in his
opinion The Chateau was a place where prostitution had just
occurred, but that he had formulated no opinion as to whether The
Chateau was a house of prostitution. Another officer who had
participated in the raid testified that in his opinion The
Chateau was operating as a house of prostitution at that time.
On appeal, Lot 3 challenges the superior court's decision to
allow the police officers to testify as experts. Lot 3
specifically argues that police officers do not qualify as expert
witnesses under the criteria of Alaska Rule of Evidence 702, and
that such testimony invaded the province of the fact finder.
Alaska Rule of Evidence 702(a) provides as follows:
If scientific, technical, or other
specialized knowledge will assist the trier
of fact to understand the evidence or to
determine a fact in issue, a witness
qualified as an expert by knowledge, skill,
experience, training, or education, may
testify thereto in the form of an opinion or
otherwise.
In the present case, the superior court permitted
police officers to express specific opinions as to whether The
Chateau was operating as a house of prostitution. At least one
authority concludes that while experts may provide general
standards, criteria, or descriptions of social frameworks, the
helpfulness standard requires that experts "stop short of stating
their own conclusions on [points that] the jury is at least
equally capable of [determining]." 3 Christopher B. Mueller and
Laird C. Kirkpatrick, Federal Evidence 350, at 628 (1994).
Thus, while courts have allowed expert testimony as to patterns
of conduct in drug trafficking,26 criteria for determining the
adequacy of a
warning,27 and principles of handwriting analysis,28 courts have
been reluctant to let experts state their own conclusions
regarding such matters. Rather, courts prefer to let a jury
apply general standards supplied by experts to the specific facts
of a case in order to reach its own conclusion.29
We conclude that the officers' specific opinions as to
whether The Chateau was operating as a house of prostitution do
not meet the criteria for scientific, technical, or other
specialized knowledge which would assist the trier of fact as
required by Evidence Rule 702(a). Thus, we hold that the
superior court abused its discretion in permitting the police
officers to express their opinions as to whether The Chateau was
operating as a house of prostitution.30
E. SAC's Status as a Public Interest Litigant
Because we reverse the superior court's judgment in
favor of Lot 3 as to the merits of this case, we vacate the
court's award of attorney's fees and costs. However, because the
issue may arise again on remand, we address SAC's argument that
it is a public interest litigant.
The superior court concluded that SAC is not a public
interest litigant and awarded $25,000 in attorney's fees and
$3,782 in costs to Lot 3 as the prevailing party pursuant to
Civil Rule 82.31 On appeal, SAC argues that the superior court
erred in concluding that SAC is not a public interest litigant.32
In Gilbert v. State, 526 P.2d 1131, 1136 (Alaska 1974),
this court recognized a public interest exception to Civil Rule
82 and held that "it is an abuse of discretion to award
attorneys' fees against a losing party who has in good faith
raised a question of genuine public interest before the courts."
The public interest exception to Civil Rule 82 is designed to
encourage plaintiffs acting as private attorneys general to bring
issues of public interest to the courts when such issues might
otherwise not be brought. Anchorage v. McCabe, 568 P.2d 986, 990
(Alaska 1977). A litigant must satisfy the following four
criteria to be deemed a public interest litigant:
(1)Is the case designed to effectuate
strong public policies?
(2)If the plaintiff succeeds will
numerous people receive benefits from
the lawsuit?
(3)Can only a private party have been
expected to bring the suit?
(4)Would the purported public interest
litigant have sufficient economic
incentive to file suit even if the
action involved only narrow issues
lacking general importance?
Citizens Coalition, 810 P.2d at 171.
SAC brought this action to abate houses of prostitution
in the Spenard area. The suppression of prostitution and related
activities is supported by the policies and laws of this state.
AS 09.50.170-.240; AS 11.66.100-.150. We therefore conclude that
this action was designed to effectuate the strong public policy
of suppressing prostitution in the Anchorage area. Thus, we hold
that the first criterion is satisfied.
Those who live in close proximity to the premises,
those who drive by on a regular basis, and the community as a
whole will benefit if SAC is successful in closing houses of
prostitution. We therefore conclude that numerous people will
benefit from the successful outcome of SAC's lawsuit. Thus, we
conclude that the second criterion is met.
As to the third criterion, this action could have
arguably been brought by the Municipality of Anchorage or the
State of Alaska. However, David Erlich, the president of SAC,
averred in an affidavit that law enforcement action had not been
successful in closing alleged houses of prostitution, and that
the Municipality of Anchorage had refused to initiate an action
to close the houses of prostitution in the Spenard area.
Moreover, Sergeant Mark O'Brien of the Anchorage Police
Department, who was supervisor of the General Investigation Unit
responsible for investigating prostitution, gambling and street
level drug trafficking, testified that prostitution was the
Unit's lowest priority. He stated that he was instructed that
his priorities were to focus on drugs and crack cocaine and to
not work on prostitution. Thus, for all practical purposes, only
a private party could have been expected to bring this suit. We
therefore conclude that the third criterion is satisfied.
Finally, as to the fourth criterion, in his affidavit
David Erlich stated that SAC is a non-profit corporation. One of
SAC's purposes is to improve the Spenard neighborhood by its
efforts to bring about the closing of houses of prostitution. It
is apparent that SAC will not receive any direct financial
benefit from the successful outcome of this litigation. While
the members of SAC may benefit indirectly based on improved
property values in their neighborhood, such minimal economic
interests cannot destroy a litigant's capacity to satisfy the
fourth criterion. We therefore hold that SAC would not have a
sufficient economic incentive to file suit even if the action
involved only narrow issues lacking general importance. Thus,
the fourth criterion is satisfied. Based on the foregoing, we
hold that the superior court erred in concluding that SAC is not
a public interest litigant.
III. CONCLUSION
We AFFIRM the superior court's order denying SAC's
motion for an establishment-preclusion order and AFFIRM the
superior court's exclusion of L.H.'s conviction for assignation.
We REMAND the superior court's discovery sanction award of
$12,000 in costs and attorney's fees against Lot 3 for specific
findings as to whether the award contains fees prior to October
24, 1988, when Elstad was served with a subpoena for her
deposition and, if so, why the award contains such fees. We
REVERSE the superior court's admission of the police officers'
expert opinions, and REVERSE the superior court's determination
that SAC is not a public interest litigant.
Finally, we REVERSE the judgment of the superior court
and REMAND for redetermination consistent with this opinion as to
whether Lot 3 should be abated under AS 09.50.210 and whether an
injunction should be issued under AS 09.50.180.33 As to these
issues the determinative questions are: (1) whether a nuisance
existed by clear and convincing evidence at the time SAC filed
its complaint; and (2) if so, whether the equitable factors
discussed earlier warrant injunctive relief. As to the first
question, we note the superior court previously concluded that
"in October 1987 The Chateau was a business that included
prostitution as one of its primary services." Thus, on remand
the superior court may give the parties the option of offering
further evidence, may order sua sponte the further taking of
evidence, shall enter such additional findings of fact and
conclusions of law as are appropriate in the circumstances, and
shall undertake such further proceedings it deems appropriate not
inconsistent with this opinion.
_______________________________
1 Assignation is "the making of an appointment or
engagement for prostitution or an act in furtherance of such
appointment or engagement." A.M.C. 8.14.010. Assignation is
punishable by a fine of up to $5,000 and imprisonment for not
more than one year. A.M.C. 8.14.020; 8.50.010(A)(7).
2 The record also contains evidence of a 1986 police
undercover operation at The Chateau during which a Chateau
employee was arrested for assignation. However, the Municipality
exercised its discretion under Alaska Criminal Rule 43(a) and
dismissed the charge.
3 The superior court severed SAC's claims against other
properties. Default judgments were entered against some of the
properties after severance, and the claims which were severed and
not defaulted were stayed pending appeal.
4 The record contains no information on precisely when
the police returned the Rolodex files to Elstad. In the criminal
proceeding against Elstad, the district court excluded the files
from evidence as the fruit of an illegal search and seizure. The
police retained custody of the files until the disposition of the
proceeding, which was scheduled for trial in September 1988. At
some point, the police returned the files to Elstad.
5 Neither party has designated the petitions or their
supporting memoranda as part of the record on appeal. However,
in its motion to the superior court for a stay pending the
outcome of the petition, Lot 3 stated its position that "the
documents in their entirety are protected from disclosure and
discovery by the constitutional right to privacy afforded by the
Alaska Constitution to the patrons whose names and other
information are contained in the documents." In a motion to the
superior court for reconsideration, SAC stated its position that
the additional information sought -- notations pertaining to a
customer's sexual preferences -- was not protected under the
right to privacy. The superior court denied SAC's motion.
6 Lot 3 moved for reconsideration of the judgment,
arguing that the superior court should have deducted from the
award the amount of actual fees that were unrelated to the
discovery of the Rolodex cards. The superior court granted the
motion for reconsideration, but sustained the judgment for
$12,000.
7 The superior court also heard testimony that the
Municipality would reject a license or renewal application if the
police department believed that an establishment was being
operated as a house of prostitution.
8 The superior court subsequently issued written findings
of fact and conclusions of law that paralleled its oral findings.
9 The rulings at issue in this appeal were made by Judges
Hunt and Shortell. Judge Hunt issued the establishment-
preclusion order and awarded $12,000 in attorney's fees against
Lot 3. Judge Shortell ruled on the meaning of "exists," the
exclusion of L.H.'s conviction, the admission of the police
officers' expert testimony, and SAC's status as a public interest
litigant. Judge Shortell also held that SAC had not met the
preponderance of the evidence standard, but declined to determine
the proper burden of proof.
10 Subsequently amended, AS 09.50.170 provided as follows:
A person who erects, establishes, continues,
maintains, uses, owns, or leases a building,
structure, or other place used for the
purposes of lewdness, assignation, or
prostitution or any other immoral act is
guilty of maintaining a nuisance, and the
building, structure, or place, or the ground
itself in or upon which or in any part of
which the lewdness, assignation, or
prostitution is conducted, permitted, or
carried on, continues or exists, and the
furniture, fixtures, and other contents
constitute a nuisance and may be enjoined and
abated.
AS 09.50.180 provides as follows:
When there is reason to believe that a
nuisance as defined in AS 09.50.170-09.50.240
exists, the attorney general shall, or a
citizen may, bring an action to perpetually
enjoin the nuisance, the person maintaining
it, and the owner, lessee, or agent of the
building or group upon which the nuisance
exists.
Subsequently amended, AS 09.50.210 provided in part as
follows:
Upon judgment that a nuisance exists, an
order of abatement shall be entered directing
the removal from the building or place of the
fixtures, furniture, and movable property
used in the nuisance and their sale in the
manner provided for the sale of chattels
under execution. The order shall also direct
the closing of the building or place against
its use for any purpose for a period of one
year unless sooner released.
11 The interpretation of a statute presents a question of
law to which this court applies its independent judgment,
adopting the rule of law that is most persuasive in light of
precedent, policy, and reason. Zsupnik v. State, 789 P.2d 357,
359 (Alaska 1990).
12 At least one court has held that such statutes should
be liberally construed to enable communities to protect
themselves. State ex rel. English v. Fanning, 149 N.W. 413, 415
(Neb. 1914).
13 See also McCarthy v. Gaston Ridge Mill & Min. Co., 78
P. 7, 9 (Cal. 1904) (upholding court's denial of injunction
because defendant had voluntarily abated nuisance after
commencement of action); Commonwealth ex rel. Attorney Gen. v.
Brown, 39 S.W.2d 223, 227 (Ky. 1931) ("an abatement by defendant
subsequent to the filing of the action will not prevent the
granting of the permanent injunction where it is not made to
appear that the abatement was in good faith, and upon that issue
the character of violations and the objects and things of which
they consist may be taken into consideration") (citation
omitted); Dunbar v. O'Brien, 220 N.W. 278, 279 (Neb. 1928)
(whether cessation of nuisance after filing of complaint defeats
right to injunction "depends on the good faith of defendant" and
the circumstances of the case); cf. United States v. W. T. Grant
Co., 345 U.S. 629, 633 (1953) ("the court's power to grant
injunctive relief survives discontinuance of the illegal
conduct,"but the case may "be moot"and injunctive relief should
not be granted "if the defendant can demonstrate that 'there is
no reasonable expectation that the wrong will be repeated'")
(quoting United States v. ALCOA, 148 F.2d 416, 448 (2d Cir.
1945)).
14 We also note that there must be repeated or continuous
prohibited activity before a nuisance can be found to exist. See
Southeastern Liquid Fertilizer Co. v. Chapman, 120 S.E.2d 651,
653 (Ga. App. 1961) ("The whole idea of nuisance is that of
either a continuous or regularly repetitious act or condition
which causes the hurt, inconvenience or injury."); State v.
Glenny, 6 N.W.2d 241, 242 (Minn. 1942) ("The commission of single
or isolated disorderly or immoral acts on the premises does not
constitute the place a disorderly house within the meaning of the
penal laws."); Tenement House Dep't of New York v. McDevitt, 109
N.E. 88, 89 (N.Y. 1915) ("To make the owner liable, it must
appear that the building has been 'used' for the purpose of
prostitution, and this imports, not an isolated act of vice, but
some measure, even though brief, of continuity and permanence.");
Starview, Inc. v. Oregon Liquor Control Comm'n, 514 P.2d 898, 899
(Or. App. 1973) ("To constitute the offense of 'maintaining'
there must be some purpose of continuity in the use of the place
for the proscribed illegal conduct.") (quoting People v. Holland,
322 P.2d 983, 986 (Cal. App. 1958)); State ex rel. Carroll v.
Gatter, 260 P.2d 360, 364 (Wash. 1953) ("To sustain the
application of the [nuisance abatement] act . . . requires more
than a showing that sporadic acts of prostitution occurred
therein.").
15 We have articulated the difference between clear and
convincing evidence and a preponderance of the evidence as
follows:
Where one has the burden of proving asserted
facts by a preponderance of the evidence, he
must induce a belief in the minds of the
jurors that the asserted facts are probably
true. If clear and convincing proof is
required, there must be induced a belief that
the truth of the asserted facts is highly
probable.
Curran v. Mount, 657 P.2d 389, 391 n.4 (Alaska 1982) (quoting
Saxton v. Harris, 395 P.2d 71, 72 (Alaska 1964)).
16 See also Cherry Hill Tp. v. New Jersey Racing Comm'n,
328 A.2d 653, 664 (N.J. Super. Ct. Law Div.) ("Plaintiffs, in
charging a public nuisance, assumed the burden of establishing
their cause of action by clear and convincing evidence."), aff'd,
330 A.2d 600 (N.J. Super. Ct. App. Div. 1974), cert. denied, 343
A.2d 423 (N.J. 1975); Delaware Optometric Ass'n v. Sherwood, 122
A.2d 424, 427 (Del. Ch. 1956) ("Evidence sufficient to warrant
the enjoining of a public nuisance must be clear and
convincing."), aff'd, 128 A.2d 812 (Del. 1957); Sullivan County
v. Filippo, 315 N.Y.S.2d 519, 539 (N.Y. Sup. 1970) ("It is the
rule in this state that a public nuisance must be established by
clear evidence before the preventive remedy will be granted.").
17 Under AS 09.50.230, the building may be released to
the owner before expiration of the one year period if the owner
posts a bond and meets several other conditions.
18 Courts interpreting similar public nuisance abatement
laws in other jurisdictions have split on whether such statutes
are civil or criminal in nature. In State ex rel. Haas v. Club
Recreation and Pleasure, 599 P.2d 1194, 1196-97 (Or. App. 1979),
cert. denied, 446 U.S. 982 (1980), the defendants challenged
Oregon's nuisance abatement law as imposing criminal sanctions
without the safeguards provided in criminal trials. The court
rejected this argument stating that "rather than circumventing
the criminal statute, the civil abatement statute serves as
entirely different purpose, i.e. that of providing prospective
equitable relief from continuation of the nuisance." Id. at
1198. However, in State ex rel. Clemens v. ToNeCa, Inc., 265
N.W.2d 909, 914 (Iowa 1978), the court stated that even though
Iowa's public nuisance abatement statute "is not a criminal
statute, it is penal and must be strictly construed." The court
added that "[a]ctions for prohibitory injunction, although
premised in equity, are criminal in nature." Id. at 916. And in
Board of Supervisors of Los Angeles County v. Simpson, 227 P.2d
14, 16 (Cal. 1951), the court stated that "[p]roceedings under
the red light [nuisance] abatement act are . . . penal in
nature." (Citations omitted.)
19 Alaska Civil Rule 37(b)(2) provides in pertinent part:
If a party . . . fails to obey an order
to provide or permit discovery, . . . the
court in which the action is pending may make
such orders in regard to the failure as are
just, and among others the following:
(A) An order that the matters regarding
which the order was made or any other
designated facts shall be taken to be
established for the purposes of the action in
accordance with the claim of the party
obtaining the order;
(B) An order refusing to allow the
disobedient party to support or oppose
designated claims or defenses, or prohibiting
that party from introducing designated
matters in evidence;
. . . .
In lieu of any of the foregoing orders
or in addition thereto, the court shall
require the party failing to obey the order
or the attorney advising that party or both
to pay the reasonable expenses including the
attorney's fees, caused by the failure,
unless the court finds that the failure was
substantially justified or that other
circumstances make an award of expenses
unjust.
20 To this effect, the superior court stated as follows:
For reasons not articulated in the
record, the defendant did not clearly state,
with specificity, the objections that she had
to the plaintiff's request for an award of
attorney fees when she opposed the
plaintiff's motion. Instead, she waited
until after the court ruled and then as a
motion for reconsideration, she was finally
able to articulate the fees and activity to
which she specifically objects.
21 For definition of "assignation,"see note 1, supra.
22 Alaska's set aside statute, AS 12.55.085(e), provides
as follows:
Upon the discharge by the court without
imposition of sentence, the court may set
aside the conviction and issue to the person
a certificate to that effect.
23 In Journey v. State, 895 P.2d 955 (Alaska 1995), we
considered whether expunction is a necessary component of a set
aside order under AS 12.55.085(e). We noted that while the
collateral consequences of a set aside conviction should be
limited, records of a set aside conviction can be used in certain
circumstances. Id. at 959.
24 This court has previously stated that
[B]efore privity may be found to exist, the
non-party must have notice and an opportunity
to be heard; the procedure must insure the
protection of the rights and interests of the
non-party, and he must in fact be adequately
represented by the parties.
Pennington, 471 P.2d at 375-76. These requirements are not met
in this case. In O'Connor v. O'Leary, 56 Cal. Rptr. 1 (1967),
the California Court of Appeal considered a case in which an
employee of a drive-in theater who was acting within the scope of
his employment under the doctrine of respondeat superior stabbed
someone on theater premises and was subsequently convicted of
involuntary manslaughter. Id. at 2-3. The court held that the
theater was not in privity with the employee for purposes of
applying the doctrine of collateral to the criminal conviction.
Id. at 3.
25 Federal Rule of Evidence 803(22) provides in part that
the rule against hearsay does not require exclusion of "evidence
of a final judgment, entered after a trial . . . adjudging a
person guilty of a crime punishable by death or imprisonment in
excess of one year, to prove any fact essential to sustain the
judgment."
26 In United States v. Brown, 776 F.2d 397, 400 (2nd Cir.
1985), cert. denied, 475 U.S. 1141 (1986), the court concluded
that a police officer properly testified that street drug sales
in Harlem generally involved the use of a steerer. However, the
court stated that "there is something rather offensive in
allowing an investigating officer to testify not simply that a
certain pattern of conduct is often found in narcotics cases,
leaving it for the jury to determine whether the defendant's
conduct fits the pattern, but also that such conduct fitted that
pattern . . . ." Id. at 401.
27 In Harris v. Pacific Floor Mach. Mfg. Co., 856 F.2d 64,
67 (8th Cir. 1988), the court permitted the expert to explain the
criteria he would use to judge the adequacy of a warning, but
"ruled that the jury could then apply the criteria to the facts
of the case for itself, without the assistance of an expert's
opinion."
28 In United States v. Fleishman, 684 F.2d 1329, 1337 (9th
Cir.), cert. denied, 459 U.S. 1044 (1982), the court permitted
the expert to provide the jury with an extensive review of the
principles of handwriting analysis, but left the jury to apply
the principles to the facts of the case in order to reach their
own conclusion as to the author of a note.
29 Harris, 856 F.2d at 67-68; Brown, 776 F.2d at 401;
Fleishman, 684 F.2d at 1336-37.
30 SAC argues that the police officers' opinions are
admissible under Alaska Rule of Evidence 704 which provides as
follows:
Testimony in the form of an opinion or
inference otherwise admissible is not
objectionable because it embraces an ultimate
issue to be decided by the trier of fact.
However, under Rule 704 an expert's opinion on an ultimate issue
must still be of assistance to the trier of fact. Wilson v.
State, 669 P.2d 1292, 1297 (Alaska 1983). Since the police
officers' opinion testimony does not meet the requirements for
expert testimony in the first place, the fact that it embraces
ultimate issues cannot make it admissible.
31 In this regard the superior court found in relevant
part as follows:
Plaintiff is not a public interest
litigant. It does not meet the third and
fourth criteria for public interest status.
Specifically, this lawsuit could have been
brought by a governmental entity and not just
a private party. Also, the plaintiff had
sufficient economic incentive to file the
lawsuit even if the action involved only
narrow issues lacking general importance.
32 We review a trial court's determination as to a party's
status as a public interest litigant for an abuse of discretion.
Citizens Coalition for Tort Reform, Inc. v. McAlpine, 810 P.2d
162, 171 (Alaska 1991).
33 Based on our construction of AS 09.50.170-.240, we need
not address SAC's argument that it is entitled to relief under
the common law or its contention that its motion for additional
findings of fact was improperly denied.
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