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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