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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Anderson v. State (10/16/2003) sp-5745
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, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
SUSAN D. ANDERSON, )
) Supreme Court Nos. S-
10416/10425
Appellant/Cross-Appellee, )
) Superior Court No.
v. ) 3AN-98-10450 CI
)
STATE OF ALASKA ex rel. ) O P I N I O N
CENTRAL BERING SEA )
FISHERMEN'S ASSOCIATION )
and CARL MERCULIEF, )
)
Appellee/Cross-Appellant. ) [No. 5745 - October
16, 2003 ]
)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Peter A. Michalski, Judge.
Appearances: David Karl Gross, Timothy J.
Petumenos, Birch, Horton, Bittner & Cherot,
Anchorage, for Appellant/Cross-Appellee.
Gary M. Guarino, Assistant Attorney General,
Anchorage, Bruce M. Botelho, Attorney
General, Juneau, for Appellee/Cross-
Appellant.
Before: Matthews, Eastaugh, Bryner, and
Carpeneti, Justices. [Fabe, Chief Justice,
not participating.]
PER CURIAM
MATTHEWS, Justice, with whom EASTAUGH, Justice, joins,
concurring and dissenting.
BRYNER, Justice, with whom CARPENETI, Justice, joins,
concurring and dissenting.
I. FACTS AND PROCEEDINGS
A jury awarded Susan Anderson compensatory and punitive
damages against Central Bering Sea Fishermen's Association and
its president, Carl Merculief, based on claims of wrongful
discharge and defamation. In an earlier appeal we held that part
of the compensatory award was excessive, but we upheld punitive
damages awards of $400,000 against the association and $200,000
against Merculief.1 The present appeal concerns the state's
claim to half of the punitive damages under AS 09.17.020(j).2
After the court entered judgment in her favor, Anderson
filed a motion asking the court to declare AS 09.17.020(j)
unconstitutional. She argued that the statute violated the due
process, takings, and equal protection clauses of the United
States and the Alaska Constitutions. The state intervened, made
a motion asserting its statutory right to fifty percent of
punitive damages, and opposed Anderson's motion. The superior
court denied Anderson's motion and granted the state's, finding
AS 09.17.020(j) to be constitutional.
In upholding the statute, the superior court issued an
opinion holding that Anderson had no constitutionally protected
"property interest" in the whole award of punitive damages and
that the allocation of punitive damages to the state thus did not
constitute a taking or violate Anderson's rights to due process.
The court also rejected Anderson's equal protection claim,
finding that the statute affected only economic interests and
bore a fair and substantial relationship to legitimate government
objectives.
The court ordered Anderson to submit an amended final
judgment that granted the state fifty percent of punitive
damages. At this point a dispute arose as to the interpretation
of AS 09.60.080. That section provides that contingent
attorney's fees shall be "calculated" before the state's portion
of punitive damages has been deducted from the total award of
damages.3 The state contended that this section only governs the
calculation of the plaintiff's attorney's fee and that it was
entitled to fifty percent of the punitive damages award before
fees are deducted. The superior court rejected this argument.
The state filed a motion for reconsideration,
contending that at least it should be allowed to share in
attorney's fees that had been awarded to Anderson under Civil
Rule 68. The superior court summarily denied the state's motion
for reconsideration, effectively ruling that the state was not
entitled to any of the fees awarded to Anderson.
II. STANDARD OF REVIEW
The constitutionality of AS 09.17.020(j) and the proper
interpretation of AS 09.60.080 are issues of law.4 We review
these issues de novo,5 adopting the rule of law that is most
persuasive in light of precedent, policy, and reason.6
III. ISSUES AND DECISION
There are three issues presented in this case:
1. Is AS 09.17.020(j), which allocates half of
punitive damage awards to the state, constitutional as applied in
this case?
2. Under AS 09.60.080 should a portion of contingent
attorney's fees incurred by a plaintiff in obtaining a punitive
damage award be deducted pro rata from the state's portion of the
award?
3. Where the plaintiff has received enhanced
attorney's fees under Alaska Civil Rule 68, should these fees be
taken into account in calculating the amount of fees to be
deducted pro rata from the state's portion of the punitive damage
award?
The trial court gave affirmative answers to the first
two issues and a negative answer to the third. This court is
evenly divided on the first and third issues. As to the first
issue, Justices Matthews and Eastaugh favor affirmance and
Justices Bryner and Carpeneti favor reversal. As to the third
issue, Justices Bryner and Carpeneti favor affirmance and
Justices Matthews and Eastaugh favor reversal. As to the second
issue, the court is unanimous and agrees with the trial court's
resolution.
Our case law establishes that a decision by an evenly
divided court results in an affirmance.7 An affirmance by an
evenly divided court is not binding precedent.8 The opinion of
the justices agreeing with the decision of the superior court is
referred to as the dispositional opinion.9 Since at least two
members of the court agree with the superior court's decision as
to each of the three issues, the superior court's decision will
be affirmed.
Part I of Justice Matthews's separate opinion, joined
in by Justice Eastaugh, is the dispositional opinion as to the
first issue; Part II is the opinion of the court as to the second
issue; Part III is a dissenting opinion as to the third issue.
Part I of Justice Bryner's opinion, joined in by Justice
Carpeneti, is a dissenting opinion as to the first issue; Part II
is the dispositional opinion as to the third issue.
The judgment of the superior court is AFFIRMED.
MATTHEWS, Justice, with whom EASTAUGH, Justice, joins, concurring
and dissenting.
I.
Constitutional Issues
Subsequent to the superior court's decision, this court
ruled on the constitutionality of AS 09.17.020(j). In Evans ex
rel Kutch v. State, in an evenly divided opinion, we affirmed a
superior court decision that declared the 1997 tort reform
legislation to be facially constitutional.10 Subsection .020(j)
was challenged in Evans as violating substantive due process, the
takings clause, and the right to trial by jury.11 The
dispositional opinion written by Chief Justice Fabe and joined by
Justice Eastaugh concluded that these challenges lacked merit.12
Justice Bryner, in a dissenting opinion joined by Justice
Carpeneti, concluded that subsection .020(j) violated substantive
due process and amounted to an unconstitutional taking under the
Alaska Constitution.13
In the present case Anderson argues that the statute as
applied to her violates substantive due process and the takings
and equal protection clauses of the Alaska14 and United States15
Constitutions. I conclude that her arguments lack merit. As to
the takings and substantive due process challenges, I agree with
the dispositive opinion in Evans and with additional reasons
presented by the state and discussed in this opinion. With
respect to equal protection I conclude that the statute does not
unconstitutionally discriminate.
A. Takings
The Fifth Amendment of the United States Constitution
provides that private property shall not be taken for public use
without just compensation. Similarly, article I, section 18 of
the Alaska Constitution provides that "private property shall not
be taken or damaged for public use without just compensation."
Noting that the takings clause has been liberally construed in
favor of the property owner in Alaska,16 Anderson argues that