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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Larson v. State (6/10/2011) sp-6566
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, email
corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
LOREN J. LARSON, JR., )
) Supreme Court No. S-13917
Appellant, )
) Superior Court No. 3AN-10-06052 CI
v. )
) O P I N I O N
STATE OF ALASKA, )
) No. 6566 - June 10, 2011
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Frank A. Pfiffner, Judge.
Appearances: Loren J. Larson, Jr., pro se, Seward, Appellant.
John W. Erickson, Jr., Assistant Attorney General,
Anchorage, and John J. Burns, Attorney General, Juneau, for
Appellee.
Before: Carpeneti, Chief Justice, Fabe, Winfree, Christen,
and Stowers, Justices.
WINFREE, Justice.
I. INTRODUCTION
Loren J. Larson, Jr. filed suit against the State of Alaska, alleging that the
Alaska Court of Appeals violated its "duties to establish rules of law and declare what
legal rights a citizen has" when it issued a decision affirming the dismissal of his petition
for post-conviction relief from an earlier conviction for two murders and one burglary.
The superior court ruled that Larson's suit was barred by both judicial immunity and res
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judicata. Larson appeals, but because the superior court did not err we affirm its decision.
II. FACTS AND PROCEEDINGS
A. Facts
A jury convicted Larson on two first-degree murder counts and one first-
degree burglary count arising out of events occurring in 1996.1 He was sentenced to two
consecutive 99-year terms for the murder counts and a 10-year concurrent term for the
burglary count.2 In 2000 the court of appeals affirmed Larson's conviction.3
About a year later Larson filed an application for post-conviction relief,
relying on affidavits from jurors and alternate jurors alleging juror misconduct prior to
and during deliberations in his trial.4 The superior court rejected the juror affidavits
under Alaska Evidence Rule 606(b)5 and dismissed his petition.6 Larson appealed,
1 Larson v. State (Larson I), Mem. Op. & J. Nos. A-7032, A-4171, 2000 WL
19199, at *1 (Alaska App. Jan. 12, 2000).
2 Id. at *2.
3 Id. at *1.
4 Larson v. State (Larson II), 79 P.3d 650, 652 (Alaska App. 2003). Larson
argued that a number of jurors violated jury instructions by: (1) forming and announcing
opinions about his guilt before the case was submitted to the jury; (2) discussing the
merits of the case before it was submitted to the jury; and (3) relying on personal
knowledge, rather than trial evidence, regarding how loud a .22 caliber rifle shot would
be. Id. Larson also asserted that some jurors "improperly declared or apparently agreed"
that (1) his decision not to testify indicated his guilt and (2) his wife's absence from the
courtroom indicated she believed he was guilty. Id.
5 Evidence Rule 606(b) provides, in relevant part:
Upon an inquiry into the validity of a verdict . . . , a juror may
not be questioned as to any matter or statement occurring
during the course of the jury's deliberations . . . , except that
a juror may testify on the question whether extraneous
(continued...)
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arguing in relevant part that Evidence Rule 606(b) prohibits using juror affidavits to
attack a verdict only when those affidavits describe misconduct occurring during but not
before the jury's formal deliberations.7 The court of appeals rejected Larson's
interpretation of the evidence rule, holding "the admissibility of juror affidavits under
Rule 606(b) turns on the type of impropriety they describe, not the timing of that
impropriety."8 But in addressing Larson's argument the court parenthetically noted:
Because Larson relies in part on the affidavits of two alternate
jurors, one additional question is potentially raised by
Larson's case: whether Evidence Rule 606(b) applies to
evidence offered by alternate jurors as well as evidence
offered by the jurors who ultimately decide the case. Both
Larson and the State assume that Rule 606(b) applies to
alternate jurors, and our limited research on this issue
supports the parties' position. See State v. Reiner, 89 Ohio
St. 3d 342, 731 N.E.2d 662, 670-73 (2000). We therefore
assume, for purposes of this case, that Evidence Rule 606(b)
[ ]
governs testimony or affidavits supplied by alternate jurors. 9
Because Larson's juror affidavits described matters "that 'inhere' in the
jury's decision-making process" and did not fall under Rule 606(b)'s express exceptions
for "extraneous prejudicial information" or "outside influence," the court of appeals held
5 (...continued)
prejudicial information was improperly brought to the jury's
attention or whether any outside influence was improperly
brought to bear upon any juror. Nor may a juror's affidavit
or evidence of any statement by the juror concerning a matter
about which the juror would be precluded from testifying be
received for these purposes.
6 Larson II, 79 P.3d at 652.
7 Id.
8 Id. at 653 (emphasis in original).
9 Id. at 655.
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Rule 606(b) precluded Larson from offering the affidavits to support his juror misconduct
allegations; it therefore affirmed the superior court's dismissal of Larson's application
for post-conviction relief.10
Larson filed a petition for hearing, asking us to review whether Rule 606(b)
precluded admission of juror evidence showing misconduct that occurred prior to the
jury's deliberations. Larson did not expressly ask us to review the court of appeals's
treatment of Rule 606(b)'s application to alternate jurors. We denied Larson's petition
for hearing.
B. Proceedings
In January 2010 Larson filed a pro se civil complaint, naming "the
Appellate Court for the State of Alaska" as the defendant. Larson alleged the court of
appeals had violated its "duties to establish rules of law and declare what legal rights a
citizen has according to that rule." Larson identified the source of the court's duties as
the preamble to the Alaska Code of Judicial Conduct. He asked the superior court to
undertake declaratory judgment proceedings to determine whether Evidence Rule 606(b)
applies to alternate juror testimony and affidavits.
In lieu of answering Larson's complaint the State filed an Alaska Civil Rule
12(b)(6) motion to dismiss for failure to state a claim for relief, asserting that (1) "the
Court of Appeals is protected from suit for its judicial acts by judicial immunity"; (2) the
Alaska Code of Judicial Conduct does not provide a legal basis for civil liability; and (3)
Larson was asking for an advisory opinion. Larson responded that he had a
constitutional right to have the court interpret the law and declare his rights and moved
to amend his complaint under Rule 15 to clarify that the sources of the duties alleged in
10 Id. at 653-60.
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his complaint were constitutional.11 The State did not take a position on Larson's motion
to amend, arguing that the amended complaint "suffer[ed] from the same fatal defects as
his initial complaint" with respect to absolute judicial immunity and required dismissal.
The superior court granted the State's motion to dismiss without mentioning
Larson's motion to amend his complaint. The court explained that: (1) to the extent
Larson asserted a claim against the State based on the conduct of judges, it was barred
by judicial immunity; and (2) to the extent Larson asked the superior court to rule on
Evidence Rule 606(b), it was barred by res judicata.
Larson appeals the superior court's dismissal of his complaint. Because
Larson had the right to amend his complaint as a matter of course12 and Larson's
constitutional arguments were raised in his opposition to the motion to dismiss, we treat
the superior court's dismissal order as directed at the amended complaint and will review
the dismissal order accordingly.
III. STANDARD OF REVIEW
"We review de novo an order dismissing a complaint on the basis of Civil
Rule 12(b)(6) for failure to state a claim upon which relief can be granted."13 "When
reviewing an order on a motion to dismiss, we deem all facts in the complaint to be true
11 Larson added allegations that the court of appeals violated article IV of the
Alaska Constitution, which established the state judiciary, and article III of the U.S.
Constitution, which established the federal judiciary. He abandoned his allegation that
the court of appeals violated the preamble to the Alaska Code of Judicial Conduct.
12 Alaska R. Civ. P. 15(a) (allowing one pleading amendment as matter of
course before service of responsive pleading).
13 Pepper v. Routh Crabtree, APC, 219 P.3d 1017, 1020 (Alaska 2009) (citing
Vanek v. State, Bd. of Fisheries, 193 P.3d 283, 286 (Alaska 2008)).
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and provable."14 "We will affirm a superior court's grant of a motion to dismiss only if
it appears beyond doubt that the plaintiff can prove no set of facts that would entitle [the
plaintiff] to relief."15
IV. DISCUSSION
We affirm the superior court's dismissal of Larson's amended complaint
for failure to state a claim for relief for the following reasons.
A. Judicial Immunity
To the extent Larson seeks relief against the court of appeals, the doctrine
of absolute judicial immunity applies: "Judicial immunity protects judges from liability
for their judicial acts, and hence a judge will only be liable if the judge's actions were not
'judicial' or were outside of the judge's subject matter jurisdiction."16 "Only judicial
actions taken in the clear absence of all jurisdiction will deprive a judge of absolute
immunity."17 "An absolute immunity defeats a suit at the outset so long as the official's
actions were within the scope of the immunity."18
Larson nonetheless asserts the superior court erred by determining the
court of appeals acted within its judicial capacity in deciding his post-conviction-relief
appeal, arguing that the court of appeals failed to perform its constitutional duty to
interpret Evidence Rule 606(b). The act at issue is the court of appeal's assumption "that
14 Id. (citing Vanek, 193 P.3d at 286).
15 Id. (citing Valdez Fisheries Dev. Ass'n v. Alyeska Pipeline Serv. Co., 45
P.3d 657, 664 (Alaska 2002)).
16 Weber v. State, 166 P.3d 899, 902-03 (Alaska 2007) (citing DeNardo v.
Michalski, 811 P.2d 316 (Alaska 1991)).
17 Christoffersen v. State, Court Custody Investigator's Office, 242 P.3d 1032,
1035 (Alaska 2010) (quoting Trapp v. State, 53 P.3d 1128, 1129 (Alaska 2002)).
18 Greywolf v. Carroll, 151 P.3d 1234, 1247 n.54 (Alaska 2007) (quoting
Imbler v. Pachtman, 424 U.S. 409, 419 n.13 (1976)).
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Evidence Rule 606(b) governs testimony or affidavits supplied by alternate jurors"
because both Larson and the State made such an assumption and "limited research"
supported the parties' position.19 We conclude this act was judicial in nature because it
was a substantive decision regarding how to treat evidence when the court made its legal
determinations and it was "properly within the scope and . . . a routine exercise of [the
court's] jurisdiction and authority."20 Accordingly the superior court correctly applied
the doctrine of absolute judicial immunity as a ground to dismiss Larson's suit.
B. Res Judicata
To the extent Larson seeks a binding judicial determination against the State
as an indirect attack on his original conviction or a denial of his subsequent post-
conviction-relief petition, without regard to specific relief against the court of appeals,
the doctrine of res judicata applies. "A prior judgment extinguishes all claims including
'rights of the plaintiff to remedies against the defendant with respect to all or any part of
the transaction . . . out of which the action arose.' "21 "[R]es judicata precludes
relitigation by the same parties, not only of claims raised in the first proceeding, but also
those relevant claims that could have been raised."22 Res judicata bars a subsequent
action when there is "(1) a final judgment on the merits, (2) from a court of competent
jurisdiction, (3) in a dispute between the same parties (or their privies) about the same
19 Larson II, 79 P.3d at 655.
20 See Weber, 166 P.3d at 903. The court of appeals had jurisdiction over
Larson's appeal under AS 22.07.020(a)(2), which grants the court of appeals appellate
jurisdiction in superior court post-conviction-relief actions.
21 Id. at 902 (quotingNelson v. Jones, 787 P.2d 1031, 1033-34 (Alaska 1990)).
22 DeNardo v. State, 740 P.2d 453, 456 (Alaska 1987) (citing Calhoun v.
Greening, 636 P.2d 69, 72 (Alaska 1981)).
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cause of action."23
First, the earlier proceeding resulted in a final judgment on the merits,
which held that Larson's juror affidavits were not admissible under Evidence Rule 606(b)
to show juror misconduct in order to attack the jury's verdict.24 Larson's Rule 606(b)
claim in his declaratory judgment action arose out of the same transaction as his original
claim - alleged juror misconduct - and he needed to raise it in the earlier proceeding.25
Second, the superior court had jurisdiction to rule on Larson's original post-conviction-
relief application and the court of appeals had jurisdiction to rule on the appeal.26 Third,
Larson's claims for post-conviction relief and declaratory relief involve the same parties:
Larson is the plaintiff and the State is the defendant.27 Accordingly the superior court
correctly applied the doctrine of res judicata as a ground to dismiss Larson's suit.
C. Lack Of Ripeness
Finally, Larson asks whether Evidence Rule 606(b) applies to alternate juror
23 Angleton v. Cox, 238 P.3d 610, 614 (Alaska 2010) (citing Smith v. C.S.K.
Auto, Inc., 132 P.3d 818, 820 (Alaska 2006)).
24 Larson II, 79 P.3d at 653.
25 See Weber, 166 P.3d at 902.
26 AS 22.10.020(a) (superior court jurisdiction); AS 22.07.020(a)(2) (court of
appeals jurisdiction).
27 See Alaska Wildlife Alliance v. State, 74 P.3d 201, 208 (Alaska 2003) ("Res
judicata is not defeated by substituting one state entity for another when the claim is
based on the same conduct, and when the same defense of non-justicability applies
regardless of which specific state entity is named as a defendant."); see also Mathis v.
Laird, 457 F.2d 926, 927 (5th Cir. 1972) (holding res judicata barred former soldier's suit
against Secretary of Defense because prior suit named United States as defendant);
Tabman v. U.S. Dep't of Justice, 722 F. Supp. 2d 113, 116 & n.2 (D.D.C. 2010) (holding
Federal Bureau of Investigation and Department of Justice were same party or in privity
for claim preclusion purposes and noting claim would also be barred if plaintiff named
United States as defendant).
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affidavits. To the extent Larson seeks a determination for use in some future unspecified
action in which res judicata might not apply, his action is dismissable for lack of an
actual dispute between the parties. Notwithstanding our general leniency toward the
ripeness threshold for maintaining an action,28 Larson seeks declaratory judgment
without an active controversy to place it in context. Courts do not lightly issue advisory
opinions;29 this further supports the superior court's dismissal of Larson's amended
complaint.
V. CONCLUSION
We AFFIRM the superior court's dismissal of Larson's amended complaint
for failure to state a claim for relief.
28 See State v. ACLU of Alaska, 204 P.3d 364, 368-69 (Alaska 2009) ("[W]hile
Alaska's standing rules are liberal this court should not issue advisory opinions or
resolve abstract questions of law." (quotingBowers Office Prods., Inc. v. Univ. of Alaska,
755 P.2d 1095, 1097-98 (Alaska 1988))).
29 Id.
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