| Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions |
|
|
|
This site is possible because of the following site sponsors. Please support them with your business.
|
| Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions |
|
|
|
|
|
This site is possible because of the following site sponsors. Please support them with your business.
|
You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Blodgett v. Blodgett (11/17/2006) sp-6076
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
| In the Matter of the Estate of: | ) |
| ) Supreme Court No. S- 11571 | |
| Richard Blodgett, | ) |
| ) Superior Court No. | |
| ROBERT DAVID BLODGETT, | ) 2NO-03-32 PR |
| an interested person, | ) |
| ) O P I N I O N | |
| Appellant, | ) |
| ) No. 6076 - November 17, 2006 | |
| v. | ) |
| ) | |
| LOUANN BLODGETT, | ) |
| Personal Representative, | ) |
| ) | |
| Appellee. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Second Judicial District, Nome,
Ben Esch, Judge.
Appearances: Verne Rupright, Rupright &
Foster, LLC, Wasilla, for Appellant. Joe P.
Josephson, Josephson & Associates, PC,
Anchorage, for Appellee.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
CARPENETI, Justice.
EASTAUGH, Justice, with whom FABE, Justice, joins,
concurring.
I. INTRODUCTION
After being convicted of the criminally negligent
homicide of his father, Robert Blodgett attempted to obtain the
benefits devised to him under his fathers will. Pursuant to
Alaskas slayer statute,1 the superior court found that Blodgett
was not entitled to inherit under the will as a result of his
conviction, and that no manifest injustice resulted from this
forfeiture. Blodgett attacks this decision on statutory and
constitutional grounds. Because we agree with the superior court
that Blodgett failed to prove that excluding him from the
benefits of his fathers will would result in manifest injustice,
and because the superior court properly resolved the
constitutional issues, we affirm that courts rejection of
Blodgetts claims.
II. FACTS AND PROCEEDINGS
On September 14, 2003 Robert Blodgett caused the death
of his father, Richard Blodgett.2 Blodgett was indicted for
murder in the second degree and in January 2004 he entered a plea
of no contest to criminally negligent homicide. His conviction
led to a three-and-one-half-year term of imprisonment.
Blodgett was named in the final will of his father,
which left all properties, Bank accounts, stocks and insurance
policies to his children. In April 2004 Blodgett petitioned the
superior court for a hearing to determine his rights to
participate in the probate proceedings under the Alaska probate
code and AS 13.12.803. The other will beneficiaries consented to
the hearing, but, contending that the killing of Richard Blodgett
was not unintentional, argued that AS 13.12.803 precluded
Blodgett from receiving any property under the will.
After additional briefing and a one-day evidentiary
hearing, Superior Court Judge Ben Esch issued a Memorandum and
Order denying Blodgetts petition and preventing him from
obtaining any benefits under the will. The court explained that
under AS 13.12.803 forfeiture was mandatory unless the slayer
proved by a preponderance of the evidence that this would result
in manifest injustice. The court concluded that Blodget failed
to make such a showing. The court considered, and rejected,
possible factors it thought might colorably result in manifest
injustice, including past family relationships and Blodgetts
monetary needs. It found the great deal of testimony about the
nature of the past relationship between Blodgett and his father
unhelpful and irrelevant in determining the justice of denying or
allowing recovery. It also concluded that Blodgett retained
sufficient income earning capacity and property holdings that he
would not be beggared if he did not receive these funds. While
the court made no specific findings as to Blodgetts culpability
in his fathers death, Blodgett was sentenced to three and one-
half years in prison after he pled guilty to criminally negligent
homicide.
Blodgett appeals.
III. STANDARD OF REVIEW
Because the statutory subsection that governs this case
provides that the superior court may set aside the application of
the slayer statute if manifest injustice would result,3 we review
the superior courts decision for abuse of discretion.4 We find
an abuse of discretion only if, based on a review of the whole
record, we are left with a definite and firm conviction that a
mistake has been made.5
Constitutional challenges to a statute are questions of
law.6 We review such questions de novo and will adopt the rule
of law that is most persuasive in light of precedent, reason, and
policy.7
IV. DISCUSSION
A. The Superior Court Did Not Abuse Its Discretion In
Concluding That Forfeiture of the Inheritance Would Not
Result in Manifest Injustice.
The common law has long followed the policy that no one
should be allowed to profit from his own wrong.8 Accordingly,
many state courts exercised their equitable powers and followed
this maxim in construing probate statutes to prevent inheritance
by an heir who murdered the decedent.9 Over the years most
states codified this rule into what became known as slayer
statutes.10
The original Alaska slayer statute, passed in 1972,11
applied when the offender feloniously and intentionally kills the
decedent.12 The requirement that the homicide be intentional was
taken from the common law rule and the Uniform Probate Codes
articulation, both of which endorse the policy that a wrongdoer
should not profit from his own wrong.13
In 1988 the legislature passed an amendment removing
the words and intentionally from the statute.14 The amended
statute on its face applied to homicides covered in AS 11.41.100
to .14015 that is, including criminally negligent homicide. The
initial intent of the 1988 amendment was to prevent parents who
caused the death of their child even if unintentionally from
recovering damages through the childs estate.16 This concern
followed a case in which a parent failed to act to bring a child
to the hospital (an act of criminal negligence) resulting in the
childs death.17 During debate on the bill, one representative
suggested that the rule apply to all homicides, not just to those
perpetrated against children.18 The final draft of the amendment
incorporated this suggestion by simply removing the requirement
of intent.
Shortly after this amendment, Alaska Governor Steve
Cowper expressed concern that under unusual circumstances, it
might be unjust to prohibit a killer from taking the property of
the victim, such as in the case of an unintentional felonious
killing.19 Accordingly, another amendment was adopted in 1989,20
creating the manifest injustice exception for unintentional
homicides now found in subsection (k):
In the case of an unintentional felonious
killing, a court may set aside the
application of [the slayer statute] if the
court makes special findings of fact and
conclusions of law that the application of
the subsection would result in a manifest
injustice and that the subsection should not
be applied.[21]
The statute also instructs that acquisitions of property not
covered by the section shall be treated in accordance with the
principle that a killer may not profit from the killers wrong.22
This has remained the law in Alaska.23 Thus, the legislature
broadened the application of the slayer statute by extending it
to unintentional killings and created an escape clause by
enacting the manifest injustice exception.24
Under the current Alaska criminal code, all unjustified
forms of killing are deemed felonies. This includes murder in
the first degree,25 murder in the second degree,26 manslaughter,27
and criminally negligent homicide.28 Thus, Alaskas slayer statute
encompasses intentional as well as unintentional homicides.
When compared with the slayer statutes of other
jurisdictions, Alaskas slayer statute emerges as unique. No
other state has a manifest injustice provision for unintentional
homicides. But in the great majority of other states, such a
provision would be unnecessary in these states only intentional
homicides are within the statutes reach.29 Many of these statutes
are modeled after the Uniform Probate Code. Following the common-
law slayer rule, the current Uniform Probate Code slayer statute
applies to an individual who feloniously and intentionally kills
the decedent.30 The comments clarify that this section . . .
excludes the accidental manslaughter killing.31 The Restatement
(Third) of Property takes a similar position, and its formulation
of the law does not apply if the killing was reckless,
accidental, or negligent.32
As noted, the great majority of state slayer statutes
require that the homicide be intentional.33 A minority of
jurisdictions resemble Alaska in merely requiring the killing to
be unlawful, rather than intentional.34 But even among this
minority of jurisdictions, some would only cover homicides with
culpable mental states as low as recklessness,35 and at least one
has followed a judicial opinion reading an intent requirement
into its slayer statute.36 Thus, when compared to the practices
of most other jurisdictions, Alaskas slayer statute has a much
broader reach that would preclude inheritance for unintentional
killers where other jurisdictions would not.
The legislature tempered the broad reach of AS
13.12.803 by investing trial courts with discretion to stay its
application in those cases where manifest injustice would result.
Should inheritance be denied to the unskilled teenager who drives
his car in a criminally negligent manner and accidentally causes
the death of a sole remaining parent? The legislature clearly
decided that in such a case there should be discretion in the
court to consider the specific facts of the homicide and, if
denial of inheritance would be manifestly unjust, to permit it.
Nor does this power to avoid the rule conflict with the policy
underlying the slayer rule: that a killer should not profit from
the killers own wrong.37 Where the killers act was not
intentional, and especially where the act was not even reckless,
and where other circumstances mitigate the crime, the application
of this principle may lead to unduly harsh results. Indeed, the
unintended killing of a loved one, as in the example above, would
likely cause the inadvertent killer far greater personal ruin
than monetary gain.
In this case, Blodgett was convicted of criminally
negligent homicide after a plea of no contest. This conviction
conclusively established a felonious killing under the slayer
statute.38 Because a criminally negligent homicide is an
unintentional homicide, under subsection (k) Blodgett is entitled
to avoid the effects of the slayer statute if he proves by a
preponderance of the evidence that applying the statute to him
will result in manifest injustice.
We have not had occasion to define the phrase manifest
injustice as used in the slayer statute, or to set out the
relevant factors that a trial judge should consider when ruling
on this question. Similarly, because no other state slayer
statute contains a provision similar to subsection (k), out-of-
jurisdiction case law provides no ready assistance. However, the
Alaska Court of Appeals has interpreted this phrase in another,
similar context. In criminal presumptive sentencing, the
legislature enacted a safety valve provision that permits review
of a sentence by a special three-judge panel upon a showing of
manifest injustice.39 In Smith v. State,40 the court of appeals
equated manifest injustice with that which is plainly unfair.41
Later, in Beltz v. State,42 the court of appeals held that a
presumptive term cannot be manifestly unjust in general but only
as applied to a particular defendant.43 Before finding manifest
injustice, the court held that the judge must articulate specific
circumstances that make the defendant significantly different
from a typical offender within that category or that make the
defendants conduct significantly different from a typical
offense.44 We adopt Beltzs approach for the purpose of applying
subsection (k) of Alaskas slayer statute.
Thus, the relevant comparison here is between Blodgetts
conduct and that of a typical offender convicted of negligent
homicide. In the criminal proceedings, Blodgett was sentenced to
three and one-half years in prison. This sentence approaches the
presumptive term for second felony offenses, suggesting that the
superior court did not believe Blodgetts acts fell at the lowest
level of culpability for a negligent homicide.45 Given the length
of the sentence, we are reassured that the court below considered
Blodgetts conduct in relation to other similarly situated
defendants when it rejected Blodgetts claim of manifest
injustice.
Blodgett attempted to prove that enforcement of the
slayer statute would result in manifest injustice by introducing
evidence regarding (1) past family relationships, and (2)
possible impecunity if denied the benefits of inheritance. The
court found that Blodgett failed to meet his burden of proving,
by a preponderance of the evidence, extraordinary circumstances
that would have made it manifestly unjust to exclude him from his
fathers will. We agree.
The court described the evidence regarding family
relationships as unhelpful. While the courts statement that the
nature and quality of the relationship between these parties
during life seem unrelated to the fairness of allowing the killer
to benefit after the decedents death may be a narrow
interpretation of the relevance of past relationships generally,
we do not believe it was an abuse of discretion under the
circumstances of this case. Witnesses testified that Blodgett
and his father shared a relationship of tough love, a good
relationship marked with occasional squabblings typical of father-
son relationships. Such testimony neither proves nor refutes the
fairness of forfeiting Blodgetts inheritance. The court did not
abuse its discretion in deciding that Blodgett failed to prove
manifest injustice on this ground.
The court also examined Blodgetts argument that it
would be unjust to deny benefits under the will to someone who is
physically disabled, who faces unknowable future medical
expenses, who has a compromised earning capacity and has ongoing
psychological needs. The superior court noted that, although
Blodgett suffered some medical disabilities, Blodgetts own
witness testified that he is adept at the operation of heavy
equipment and has skills as a mechanic. The court found that
these skills could lead to employment with yearly compensation
ranging between $40,000 and $50,000 per year. It also found that
Blodgett owns other property and that future medical expenses
will likely be met through the Alaska Native Health Service. In
light of this testimony, the court concluded that Blodgett would
not be beggared if he did not receive these funds. Consequently,
the court found that Blodgett failed to prove manifest injustice
based on monetary need.
While we believe the court did not abuse its discretion
in making this determination, we are concerned that the courts
analysis could lead to the conclusion that a showing of manifest
injustice may turn on predictions concerning the future financial
health of the petitioner. Such an approach would allow slayers
of their decedents to inherit if they are poor, but not if they
are financially solvent. We doubt that this distinction between
different slayers based on their personal wealth reflects the
legislatures purpose in enacting the manifest injustice
provision.46
Despite these concerns, we conclude that the superior
court did not abuse its discretion in finding that Blodgett
failed to prove manifest injustice by a preponderance of the
evidence.
B. Application of the Slayer Statute Did Not Violate
Blodgetts Constitutional Rights.
Blodgett argues that the slayer statute violates
several of his constitutional rights, including his right to due
process, his right to avoid forfeiture of estate, and his rights
under the ex post facto clause.47 We consider each in turn.
1. Due process
Blodgett argues that the superior courts application of
the slayer statute violated his due process rights protected by
article I, section 7 of the Alaska Constitution.48 Due process
requires that a party receive adequate notice and an opportunity
to be heard before being deprived of life, liberty, or property
by adjudication.49 Blodgett argues that [a]t present, nothing is
protecting Robert Blodgetts due process right to obtain access to
the court, access to discovery and receive a fair hearing.
Blodgett requested and obtained a hearing with the
superior court. He then filed advance briefing and presented
evidence and arguments in front of a judge. These procedures
would appear to dispose of any due process argument. Blodgetts
position, however, is centered on the assertion that he held de
facto partnership or joint venture interests in his fathers
business. He argues that his due process rights were violated by
not having an opportunity to present evidence regarding these
alleged interests.
There are numerous problems with this due process
argument. First, Blodgett had a hearing in front of the superior
court and failed to present any evidence regarding these alleged
partnership or joint venture interests. Second, Blodgetts
assertion on appeal regarding these interests appears entirely
unsupported; he points to no evidence in the record to support
it. In fact, what little evidence there is in this case suggests
otherwise a letter from Blodgett to his sister after his fathers
death suggests that Blodgett did not have any partnership
interest in the fathers business.50 Finally, even if Blodgett has
a tenable argument for a partnership interest, it is not clear
that the slayer statute would cause him to forfeit his own share
of the partnership. For these reasons, we reject Blodgetts due
process argument.
2. Forfeiture of estate
Blodgett next contends that the application of the
slayer statute resulted in a forfeiture of estate in violation of
article I, section 15 of the Alaska Constitution. That section
provides:
Prohibited State Action. No bill of
attainder or ex post facto law shall be
passed. No law impairing the obligation of
contracts, and no law making any irrevocable
grant of special privileges or immunities
shall be passed. No conviction shall work
corruption of blood or forfeiture of estate.
(Emphasis added.) These provisions respond to certain practices
and doctrines inherited from England.51 Attainder existed at
common law; it was the act of extinguishing a persons civil
rights when that person is sentenced to death or declared an
outlaw for committing a felony or treason.52 Incident to
attainder and as punishment for the crime, the felon forfeited
all of his lands and chattels to the state.53
We affirm the superior courts rejection of Blodgetts
forfeiture of estate claim on both procedural and substantive
grounds. Procedurally, Blodgett waived his argument by
inadequately briefing the issue. In his brief he alleged that
the slayer statute . . . works a forfeiture and cited article I,
section 15 of the Alaska Constitution, but he did not construct
any argument as to why that section should invalidate Alaskas
slayer statute.54 Substantively, the law is clear and many
states have held that the forfeiture of estate clause is not
implicated by the slayer rule.55 Several rationales support this
conclusion. First, any loss caused by a slayer statute is not
improperly based on attainders or on the legal status of a felon;
rather, the slayer statute exists to effectuate the accepted
policy that a killer should not profit from his wrong.56 The rule
does not prevent the slayer from inheriting in general; it only
prevents the slayer from inheriting from the slayers victim.
Second, courts have noted that the application of the slayer rule
does not actually cause a forfeiture, because the offender did
not own the property at the time of the homicide; he merely had
an expectancy interest.57 By killing the decedent, the slayer
prevents the property interest from vesting in himself.58 Third,
the constitutional language suggests that it covers complete
forfeiture, but even assuming that something is forfeited as the
result of application of the slayer statute, it is not the entire
estate, but merely some property.59 Finally, the slayer statute
differs from the effect of attainder in that it generally results
in the estate going to the other heirs, not to the government.60
Because the forfeiture of estate clause is clearly inapplicable,
Blodgetts argument here must fail.
3. Ex post facto clause
Blodgett next argues that application of the slayer
statute violated the ex post facto clause of the same
constitutional provision.61 An ex post facto law is a law passed
after the occurrence of a fact or commission of an act, which
retrospectively changes the legal consequences or relations of
such fact or deed.62 It is unclear whether the ex post facto
clause applies to purely civil statutes.63 However, because the
slayer statute is arguably punitive, there is at least a
plausible argument that it could apply in this scenario.
But Blodgett cannot prevail on such an argument,
because his claim concerns a non-probate asset: his fathers life
insurance policy. Shortly after Blodgetts plea, the New York
Life Insurance Company sent Blodgett a letter stating that the
Alaska slayer statute disqualified him from obtaining any
benefits under the life insurance policy, executed in 1985.
Blodgetts position is that his rights under this insurance
contract were impaired retrospectively by the subsequent passage
of the slayer statute. We need not reach this argument, for
there has been no adjudication with regard to the life insurance
policy.
Life insurance policies are non-probate transfers.64
Thus, that Blodgett has been excluded from probate under a slayer
statute does not necessarily exclude him from obtaining life
insurance benefits.65 Blodgett has not sued the New York Life
Insurance Company to challenge its decision to disqualify him.
Without such a challenge, whether the slayer statute applies to
non-probate transfers was not before the superior court as that
court recognized nor is it before us. Accordingly, there is no
occasion for us to consider whether such an application would
violate the ex post facto clause.
V. CONCLUSION
Because the superior court did not abuse its discretion
in concluding that manifest injustice would not result from
application of the slayer statute, and because Blodgetts
constitutional challenges to the slayer statute are unavailing,
we AFFIRM the decision of the superior court.
EASTAUGH, Justice, with whom FABE, Justice, joins, concurring.
I agree with the result the court reaches, but write
separately to discuss my concern about how our slayer statute, AS
13.12.803, applies to negligent homicide.1
Many states have equivalent statutes, but most prevent
inheritance only if the heir intentionally causes the decedents
death.2 Only about ten states by statute or common law forbid
someone who unintentionally causes the death of another from
inheriting the decedents estate,3 and most of these states
disinherit only for reckless conduct and not for negligent
homicide.4 Other than Alaska, no more than four states and the
District of Columbia appear to disinherit if the wrongful conduct
that causes the death is merely negligent in some degree.5
Our statute is unusual because it potentially applies
to a class of events that are predictably more likely to occur
(because they involve negligence). It is also unusual because
the wrongful conduct that puts family members at risk may be
relatively mainstream, akin to what much of the populace commonly
does. This is especially so if it involves common activities
(such as driving motor vehicles) that often violate the standard
of care specified by statute or regulation.6 As a result, our
statute potentially applies both broadly and frequently. There
is a potential for harsh results not necessarily contemplated by
the drafters.
There is also a risk that the states interests advanced
by the statute are too marginal to justify interference with the
testamentary expectations of the victim of negligence. But
Blodgett has not challenged the statutes constitutionality. I
therefore assume here that the state has sufficient interest in
deterrence and public safety to bar inheritance even for
negligent homicide. There is nonetheless a potential for
injustice if the statute is applied harshly in a particular case.
Our statute since 1989 has contained an exception for
manifest injustice.7 The legislature, concerned about the
possible injustice of applying the slayer statute to
unintentional homicides, in that year adopted an escape clause
that permits a court to avoid fortfeiture if it makes special
findings of fact and conclusions of law that manifest injustice
would result.8
But because the statute necessarily applies to
negligent homicide, trial courts might mistakenly assume that
circumstances involving mainstream conduct well within the
statute (such as negligent homicide arising out of operation of a
vehicle) cannot provide a basis for finding manifest injustice.
A court might likewise think circumstances bearing on the conduct
itself cannot be relevant to a manifest injustice inquiry. In my
view, such a cramped interpretation of the manifest injustice
standard could result in substantial unfairness in many cases.
Indeed, the very frequency with which negligently operated
vehicles cause death might lead some trial courts to think the
circumstances of how a vehicle was operated can never demonstrate
manifest injustice. At the least, a court might apply a
presumption against finding manifest injustice.
The statute does not explain what circumstances might
justify a finding of manifest injustice. It would seem that a
litigant trying to avoid disinheritance under the slayer statute
should be permitted to present any arguably relevant evidence.
This would include evidence relevant to the gravity of the
negligent conduct or to the beneficiarys relationship with the
decedent. Foreign jurisdictions whose slayer statutes also
contain escape clauses permit consideration of a broad range of
circumstances. The English Forfeiture Act states: The court
shall not make an order under this section modifying the effect
of the forfeiture rule in any case unless it is satisfied that,
having regard to the conduct of the offender and of the deceased
and to such other circumstances as appear to the court to be
material, the justice of the case requires the effect of the rule
to be so modified in that case.9 One of the leading English
cases considering what circumstances might be relevant has
explained:
The court is entitled to take into account a
whole range of circumstances relevant to the
discretion, quite apart from the conduct of
the offender and the deceased: the
relationship between them; the degree of
moral culpability for what has happened; the
nature and gravity of the offense; the
intentions of the deceased; the size of the
estate and the value of the property in
dispute; the financial position of the
offender; and the moral claims and wishes of
those who would be entitled to take the
property on the application of the forfeiture
rule.[10]
It would also seem that if a beneficiary requests
findings on circumstances that are arguably relevant to manifest
injustice, the trial court should make findings as to each
relevant circumstance and explain which circumstances the court
concludes are irrelevant. But Blodgett does not claim here that
the trial courts findings were inadequate. Although the trial
court addressed only one circumstance the financial effect of
disinheritance on Blodgett there was no request for findings as
to any other circumstance and there is no claim on appeal that
the superior courts findings were deficient.
I therefore agree to affirm.
_______________________________
1 AS 13.12.803.
2 Blodgetts briefing describes the event as follows:
After jumping onto a dump truck twice in the early morning hours
of September 14, 2003, Richard Blodgett apparently became
entangled in the dump truck and was dragged to his death. . . .
Robert Blodgett was driving the dump truck but was unaware that
his father had been killed. Blodgetts testimony in the
evidentiary hearing below stated that he generally had a close
relationship with his father, and that on the night of the
accident when he set the truck in motion he thought all
individuals were clear of the truck. Blodgett denied that he had
any indication that somebody might have been in the way or
climbing into the truck. He also testified that he did not learn
of his fathers death until a police officer informed him of the
death at some point after his arrest.
Contrary testimony was also adduced at the hearing.
Blodgett admitted that he had become involved in two arguments
with his father shortly before the homicide, that he and his
father were yelling at each other, and that they had been toe to
toe before Blodgett was pulled away by another person. Luann
Blodgett, the personal representative and Robert Blodgetts
sister, testified that Dad was upset a lot of the time with
[Robert]. He never listened to anything that Dad had told him.
He would go out and wreck Dads vehicles. Other belongings of
Dads. He would trade things off that belonged to Dad for things
for himself. Counsel for the personal representative argued in
closing that Blodgett was [not] very interested in his fathers
safety because of the three different quarrels they had vicious
quarrels, they had to be separated by people on the very night
of this death.
3 AS 13.12.803(k).
4 Cf. Martinez v. Cape Fox Corp., 113 P.3d 1226, 1229
(Alaska 2005) (where statute provided that superior court may . .
. remove director for fraudulent acts, courts decision is
reviewed for abuse of discretion); Barber v. Barber, 837 P.2d
714, 716 n.2 (Alaska 1992) (The approval of a settlement
stipulation is within the discretion of the court. Thus, the
standard of review is the clear abuse of discretion standard.);
Channel Flying, Inc. v. Bernhardt, 451 P.2d 570, 572 (Alaska
1969) (The word may [in Civil Rule 77(f)(2)] makes the imposition
of the sanction discretionary with the court. As in other cases
where discretionary authority is involved, we shall interfere
only where there has been an abuse of discretion.).
5 Alden H. v. State, Office of Childrens Servs., 108 P.3d
224, 228 (Alaska 2005). We have also said that we will interfere
with a discretionary determination of the trial court only if it
is arbitrary, capricious or manifestly unreasonable. Safeco Ins.
Co. of America v. Honeywell, Inc., 639 P.2d 996, 999 (Alaska
1981).
6 Varilek v. City of Houston, 104 P.3d 849, 851 (Alaska
2004).
7 Id. at 851-52 (quoting Guin v. Ha, 591 P.2d 1281, 1284
n.6 (Alaska 1979)).
8 See John W. Wade, Acquisition of Property by Wrongfully
Killing Another A Statutory Solution, 49 Harv. L. Rev. 715
(1936). This policy was famously described in Riggs v. Palmer,
22 N.E. 188 (N.Y. 1889), where the New York Court of Appeals
stated:
No one shall be permitted to profit by his
own fraud, or to take advantage of his own
wrong, or to found any claim upon his own
iniquity, or to acquire property by his own
crime. These maxims are dictated by public
policy, have their foundation in universal
law administered in all civilized countries,
and have nowhere been superseded by statutes.
Id. at 190.
9 See, e.g., De Zotell v. Mutual Life Ins. Co., 245 N.W.
58, 59 (S.D. 1932); Riggs, 22 N.E. at 190-91; Wade, supra n.8, at
717-18 n.12.
10 Today, forty-five states and the District of Columbia
have slayer statutes. See infra nn. 32-33. The remaining states
have retained some form of the common-law slayer rule. See
Jeffrey G. Sherman, Mercy Killing and the Right to Inherit, 61 U.
Cin. L. Rev. 803, 805 n.12, 846 n.207 (1993).
11 The slayer statute was adopted in that year along with
the rest of the Uniform Probate Code. See ch. 78, 1, SLA 1972.
Until 1996, the slayer statute was located at AS 13.11.305. See
ch. 75, 3, SLA 1996.
12 Ch. 78, 1, SLA 1972 (emphasis added).
13 See, e.g., Riggs, 22 N.E. at 190; Unif. Probate Code 2-
803(b) & cmt. (Pre-1990 Version), 8 U.L.A. 459-60 (1998) (The
section is confined to felonious and intentional killing and
excludes the accidental manslaughter killing.).
14 Ch. 164, 3-8, SLA 1988.
15 See former AS 13.11.305.
16 House Health, Educ. and Soc. Servs. Standing Comm.
Mins., Senate Bill (S.B.) 320, 15th Leg., 2d Sess., at 384 (April
21, 1988) (Statement of Roxanne Stewart).
17 Id. at 625 (Statement of Richard Svobodny).
18 Id. at 473 (Statement of Rep. Max Gruenberg).
19 House Health, Educ. and Soc. Servs. Standing Comm.
Mins., Comm. Substitute for House Bill (C.S.H.B.) 165, at 442,
528 (March 14, 1989) (Statement of Rep. Max Gruenberg).
20 Ch. 11, 1, SLA 1990.
21 AS 13.12.803(k).
22 AS 13.12.803(e).
23 In 1996 the legislature adopted many provisions of the
revised Uniform Probate Code and altered the section numbering,
but it left the essential aspects of the slayer statute intact,
rejecting (apparently without discussion) the intentional
requirement of the Uniform Probate Codes slayer statute. Ch. 75,
3, SLA 1996.
24 The current Alaska slayer statute, AS 13.12.803, with
the exception relevant in this case, now provides:
(a) An individual who feloniously kills the
decedent forfeits all benefits under this
chapter with respect to the decedents estate,
including an intestate share, an elective
share, an omitted spouses or childs share, a
homestead allowance, exempt property, and a
family allowance. . . .
(k) In the case of an unintentional felonious
killing, a court may set aside the
application of (a) . . . of this section if
the court makes special findings of fact and
conclusions of law that the application of
the subsection would result in a manifest
injustice and that the subsection should not
be applied.
25 AS 11.41.100 (unclassified felony).
26 AS 11.41.110 (unclassified felony).
27 AS 11.41.120 (class A felony). A person commits
manslaughter if the person intentionally, knowingly, or
recklessly causes the death of another person under circumstances
not amounting to murder in the first or second degree. Id.
28 AS 11.41.130 (class B felony). A person commits
criminally negligent homicide if, with criminal negligence, the
person causes the death of another person. Id.
29 The extension of slayer statutes to unintentional
homicide was uncommon until fairly recently. It is now permitted
in nine other states and the District of Columbia. See Sherman,
supra n.10, at 848-49, n.213.
30 Unif. Probate Code 2-803(b) (Revised 1990 Version)
(amended 1993), 8 U.L.A. 211 (1998).
31 Id. 2-803 cmt., 8 U.L.A. 214. The comments also state
the Article II Drafting Committees preference for state
uniformity in slayer statutes. Id.
32 Restatement (Third) of Prop.: Wills & Other Donative
Transfers 8.4 & cmt. f (2003).
33 See, e.g., Ariz. Rev. Stat. Ann. 14-2803 (2005); Cal.
Prob. Code 250 (West 2005); Wash. Rev. Code Ann. 11.84.010.020
(2005). See generally Sherman, supra n.10, at 848-49.
34 See, e.g., Colo. Rev. Stat. 15-11-803 (2005); Del.
Code. Ann. tit. 12, 2322 (2005); Or. Rev. Stat. 112.455.465
(2005).
35 For example, Colorados slayer statute covers the crimes
of murder in the first or second degree or manslaughter, but
omits reference to criminally negligent homicides. See Colo.
Rev. Stat. 15-11-803 (slayer statute), 18-3-105 (criminally
negligent homicide). Manslaughter in Colorado is generally a
killing caused recklessly. Id. 18-3-104. Delaware follows a
similar scheme. See Del. Code Ann. tit. 12, 2322 (including
reckless manslaughter within its reach, but excluding criminally
negligent homicide). The slayer statutes or common law slayer
rules from several states and the District of Columbia do,
however, apply to all felonious killings. See KY. Rev. Stat.
Ann. 381.280 (West 2006) (covering a person who takes the life
of the decedent and is convicted therefor of a felony); La. Rev.
Stat. Ann. 22.613 (2005) (applying to persons criminally
responsible for the death of the decedent), Quick v. United Ben.
Life Ins. Co., 213 S.E.2d 563, 570-71 (N.C. 1975) (applying
common law slayer rule where culpable negligence was shown); and
D.C. Code 19-320 (2005) (covering all felonious homicides).
Another type of jurisdiction in the minority is Kansas, which
includes all felonious killings within its slayer statute, Kan.
Prob. Code 59-513 (2004), but its criminal code does not
recognize any sub-reckless homicides as felonies. Compare Kan.
Stat. 21-3404 (involuntary and reckless homicide is felony) with
Kan. Stat. 21-3405 (vehicular homicide, based on negligence, is
misdemeanor). In addition, New York, which does not have a
slayer statute but which applies the common law rule, extends the
rule to reckless but unintentional killings (second degree
manslaughter). In re Wells Will, 350 N.Y.S.2d 114, 119 (N.Y.
Sur. 1973).
36 Dowdell v. Bell, 477 P.2d 170, 172-73 (Wyo. 1970).
37 A wrongful acquisition of property or interest by a
killer not covered by this section shall be treated in accordance
with the principle that a killer may not profit from the killers
wrong. AS 13.12.803(e).
38 AS 13.12.803(f) ([A] judgment of conviction
establishing criminal accountability for the felonious killing of
the decedent conclusively establishes the convicted individual as
the decedents killer for the purposes of this section.).
39 AS 12.55.165 and .175.
40 711 P.2d 561 (Alaska App. 1985).
41 Id. at 570
42 980 P.2d 474 (Alaska App. 1999).
43 Id. at 480.
44 Id.
45 Criminally negligent homicide is a class B felony. AS
11.41.130(b). A defendant convicted of a class B felony may be
sentenced to a definite term of not more than ten years, and
shall be sentenced to a presumptive term of four years if the
offense is a second felony conviction. AS 12.55.125(d)(1).
46 As noted, the manifest injustice provision of
subsection (k) was added after the governor expressed concern
that under certain unusual circumstances, it may be an injustice
to prohibit the killer from taking property of the victim, such
as in the case of an unintentional felonious killing. House
Health, Educ. and Soc. Servs. Standing Comm. Mins., C.S.H.B. 165,
at 442 (March 14, 1989) (Statement of Rep. Gruenberg) (emphasis
added).
47 In his opening brief on appeal, Blodgett also attempted
to raise the claim that application of the slayer statute
violated his right to equal protection. His failure to raise
this claim before the superior court waived it. Willoya v.
State, Dept of Corrs., 53 P.3d 1115, 1120 (Alaska 2002) (holding
that argument is waived if raised for first time on appeal);
Brandon v. Corrs. Corp. of America, 28 P.3d 269, 280 (Alaska
2001) (same). In his reply brief on appeal, Blodgett attempted
to argue that his constitutional right to jury trial and his
constitutional right to protection against double jeopardy were
violated. But we will not consider arguments raised for the
first time in a reply brief. Danco Exploration, Inc. v. State,
Dept of Natural Res., 924 P.2d 432, 435 n.1 (Alaska 1996).
Accordingly, we decline to consider any of these constitutional
claims.
48 Alaska Constitution article I, section 7 provides: No
person shall be deprived of life, liberty, or property, without
due process of law. . . .
49 Aguchak v. Montgomery Ward Co., 520 P.2d 1352, 1356
(Alaska 1974) (citing Mullane v. Central Hanover Bank & Trust
Co., 339 U.S. 306, 313 (1950)).
50 In that letter, Blodgett stated, And I really want to
help and participate in the family business.
51 See generally Mary Louise Fellows, The Slayer Rule: Not
Solely a Matter of Equity, 71 Iowa L. Rev. 489, 539-40 (1986).
52 Blacks Law Dictionary 137 (8th ed. 2004).
53 Fellows, supra n.49, at 539.
54 Brandon v. Corrs. Corp. of America, 28 P.3d 269, 280
(Alaska 2001) ([C]ursory treatment of an issue is considered by
this court to be waiver of that issue.).
55 E.g., Hamblin v. Marchant, 175 P. 678, 679 (Kan. 1918);
Cook v. Grierson, 845 A.2d 1231, 1234 (Md. 2004); Garwols v.
Bankers Trust Co., 232 N.W. 239, 241 (Mich. 1930); Legette v.
Smith, 85 S.E.2d 576, 580 (S.C. 1955). For more examples, see
Michael G. Walsh, Homicide as Precluding Taking Under Will or By
Intestacy, 25 A.L.R.4th 787, 4, 15 (2004).
56 Fellows, supra n.49, at 544 & n.168 (collecting cases).
57 Id. at 540 & n.160 (collecting cases).
58 This rationale accounts for those cases which have used
the forfeiture of estate clause to strike down aspects of slayer
rules. There have been findings of unconstitutionality in
primarily two areas. The first area not relevant here involves
since-superseded cases using the constitutional provision to
reject requests for the judicial creation of a common-law slayer
rule. See, e.g., Hagan v. Cone, 94 S.E. 602, 603-4 (Ga. 1917),
overruled by statute as noted in Keith v. Johnson, 440 S.E.2d
230, 232-33 (Ga. App. 1993); Wall v. Pfanschmidt, 106 N.E. 785,
789-90 (Ill. 1914), overruled by statute as noted in In re Estate
of Vallerius, 629 N.E.2d 1185, 1188 (Ill. App. 1994). The second
area involves the narrow question of whether a murderous spouse
forfeits all title to his marital joint tenancies. Compare
Neiman v. Hurff, 93 A.2d 345, 348 (N.J. 1952) (divesting
surviving-murderer spouse of legal title to joint property would
violate constitution, but placing legal title of victims share in
constructive trust would circumvent constitutional problems) with
In re Kings Estate, 52 N.W.2d 885, 887-88 (Wis. 1952) (divesting
surviving-murderer spouse of entire tenancy presents no
constitutional infirmity). This issue while irrelevant to this
case is addressed directly in Alaskas slayer statute. See AS
13.12.803(b)(2) (felonious killing severs joint tenancy with
right of survivorship into tenancies in common).
59 Fellows, supra n.49, at 543 & n.167 (collecting cases).
60 Id. at 540-41 & n.161.
61 See Alaska Const., art. I, 15.
62 Danks v. State, 619 P.2d 720, 722 n.3 (Alaska 1980)
(citing Blacks Law Dictionary 520 (5th ed. 1979)).
63 Compare Allen v. State, 945 P.2d 1233, 1237 (Alaska
App. 1997) ([T]he ex post facto clause prohibits the
retrospective application of laws that alter the definition of
crimes or increase the punishment for criminal acts. ) (citing
Collins v. Youngblood, 497 U.S. 37, 43 (1990)) with Underwood v.
State, 881 P.2d 322, 327-28 (Alaska 1994) (analysis by court
implies that ex post facto clause could apply to civil statute).
Retroactive civil legislation must include an express statement
of retroactivity within the statute. AS 01.10.090.
64 AS 13.33.101.
65 The superior court noted that these benefits would not
be subject to the [slayer] statute. Blodgetts own briefing
recognizes that the trial court did not directly disqualify
Robert from receiving the benefits of his contractual interest in
the life insurance policy.
1 Per AS 11.41.130 [a] person commits the crime of
criminally negligent homicide if, with criminal negligence, the
person causes the death of another person. Per AS 11.81.900(a)(4)
a person acts with criminal negligence when the person fails to
perceive a substantial and unjustifiable risk . . . of such a
nature and degree that the failure to perceive it constitutes a
gross deviation from the standard of care that a reasonable
person would observe in the situation.
2 See Slip Op. at 10.
3 Jeffrey G. Sherman, Mercy Killing and the Right to
Inherit, 61 U. Cin. L. Rev. 803, 848 n.213 (1993).
4 See Colo. Rev. Stat. 15-11-803 & 18-3-04
(extending slayer statute to killers who recklessly cause death
of others); Del Code Ann. tit. 12 2322 & tit. 11 632 (extending
slayer statute to killers who recklessly cause the death of
another); In re Wells Will, 350 N.Y.S.2d 114, 119 (N.Y. Sur.
1973) (noting that [t]here is a tremendous difference between one
who is criminally negligent but nevertheless guilty of
unintentional manslaughter from one guilty of manslaughter in the
second degree for recklessly causing the death of another); 84
Okla. St. Ann. 231 & 21 Okla. St. Ann. 711 (extending slayer
statute to involuntary manslaughter); Or. Rev. Stat. 112.455
(extending slayer statute to those who kill with felonious
intent, which would appear to cover reckless, but not negligent,
homicide); In re Kleins Estate, 378 A.2d 1182, 1186 (Pa. 1977)
(holding that involuntary manslaughter bars inheritance when the
culpability is reckless, but not if negligent); McClure v.
McClure, 403 S.E.2d 197, 200 n.6 (W. Va. 1991) (holding that
despite statute declaring anyone who feloniously kills another
could not inherit, nonetheless death resulting from negligence or
gross negligence will not bar recovery under a slayer statute).
5 The District of Columbia slayer statute covers
homicide resulting from grossly negligent conduct. See Turner v.
Travelers Ins. Co., 487 A.2d 614, 615 (D.C. 1985) (explaining
that the slayer statute covers unintentional killing derived from
reckless or grossly negligent conduct).
Louisianas slayer statute covers all criminal homicide.
In re Hamilton, 446 So. 2d 463, 465 (La. App. 1984) (holding that
slayer statute was intended to include situations such as that
presented by this case, where a beneficiary does not
intentionally and feloniously cause the death of the insured but
is nonetheless held criminally responsible for that death).
North Carolinas common law slayer rule prohibits
inheritance after any wrongful homicide. Quick v. United Benefit
Life Ins. Co., 213 S.E.2d 563, 567 (N.C. 1975); Matter of Estate
of Cox, 388 S.E.2d 199, 201 (N.C. App. 1990). The continued
application of this common law rule has been criticized in light
of a slayer statute barring only intentional killers from
inheriting. N.C. Gen. Stat. 31A-3; see also generally Julie
Waller Hampton, The Need for a New Slayer Statute in North
Carolina, 24 Campbell L. Rev. 295 (2002).
Kentucky Revised Statute 381.280 bars inheritance from
those convicted of any felonious homicide. Reckless homicide is
a felony. KRS 507.050. Kentucky defines reckless as a gross
deviation from the standard of conduct that a reasonable person
would observe. KRS 501.020. Reckless homicide in Kentucky is
therefore equivalent to criminal negligence in Alaska under AS
11.81.900(a)(4).
Kansas Statute 59-513 states that [n]o person
convicted of feloniously killing, or procuring the killing of,
another person shall inherit. Involuntary homicide under Kansas
law extends to killing of a human being committed recklessly,
during a misdemeanor, or during the commission of a lawful act in
an unlawful manner. KS ST 59-513. This arguably could extend
to grossly negligent conduct, especially as KS ST 21-3201
explains that [t]he terms gross negligence, culpable negligence,
wanton negligence and wantonness are included within the term
recklessness as used in this code. A federal district court has
held that Kansass slayer statute does not apply to negligent
homicide, and there appear to be no state cases interpreting the
scope of the statute or applying it to negligent homicide.
Rosenberger v. Nw. Mut. Life Ins. Co., 176 F. Supp. 379, 38283
(D. Kan. 1959) (explaining that the intent of the legislature in
enacting the statute must have been to give effect to the common-
law rule). The Kansas slayer statute is essentially unchanged
since Rosenberger.
6 A driver who breaches a standard of care set by
traffic statutes and regulations is negligent. See, e.g.,
Ardinger v. Hummell, 982 P.2d 727, 734 (Alaska 1999) (explaining
that one who indisputably violates a statue must be found to be
negligent).If there is a gross deviation from the standard of
care that a reasonable person would observe the conduct could
rise to the level of criminal negligence. See Comeau v. State,
758 P.2d 108, 114 (Alaska App. 1988) (noting that driving while
impaired by alcohol could constitute criminal negligence).
7 AS 13.12.803(k); see also Slip Op. at 6-8.
8 See Slip Op. at 6-8 (discussing legislative
history).
9 Forfeiture Act, 1982, c. 2 1 (Eng.).
10 Dunbar v. Plant, [1998] Ch. 412, 42728 (appeal
taken from Chancery Division) (U.K.) (holding that survivor of
husband-wife suicide pact could inherit her husbands estate).
 |
| Case Law Statutes, Regs & Rules Constitutions Miscellaneous |
|
