Robinson v. Municipality of Anchorage, 69 P.3d 489 (Alaska 2003)

ADMINISTRATIVE LAW SECTION CASELAW AND LEGISLATIVE UPDATE 2003 AND 2004 This update summarizes Alaska Supreme Court cases dealing with administrative law issues decided from April 19, 2003 (date of the last administrative law section update) through December 31, 2004. It also includes 2004 legislation that affects administrative law practice. The summaries are not exhaustive, but are intended to highlight the procedural issues that may interest those who practice law in administrative forums. This update was prepared by Assistant Attorneys General David Brower, Jan Hart DeYoung, Karen Hawkins, Gayle Horetski, and Kristen Knudsen, and Litigation Assistant Anne-Marie Palumbo, Alaska Department of Law. Gayle A. Horetski Section Chair January 2005 TABLE OF CONTENTS PART I: CASES A. BY ISSUE Note: Some cases are listed only in the section for the agency involved Appeals ..................................................................................................................... 1 Constitutional Issues ................................................................................................. 3 Elections ................................................................................................................... 6 Employment & Labor Relations ............................................................................... 7 Hearings .................................................................................................................. 10 License Revocation & Suspension ......................................................................... 11 Public Records ........................................................................................................ 12 Sovereign Immunity ............................................................................................... 12 Standard of Review ................................................................................................ 13 Statutory Construction ............................................................................................ 15 B. BY AGENCY Alaska Bar Association .......................................................................................... 19 City of Homer ......................................................................................................... 19 Department of Administration ................................................................................ 20 Alaska Public Offices Commission............................................................. 20 Division of Retirement & Benefits.............................................................. 20 Department of Commerce, Community & Economic Development ..................... 21 Alaska Railroad Corporation ....................................................................... 21 Division of Occupational Licensing ............................................................ 22 Board of Certified Real Estate Appraisers .................................................. 22 Regulatory Commission of Alaska ............................................................. 23 Department of Corrections ..................................................................................... 24 Department of Fish & Game .................................................................................. 25 Board of Game ............................................................................................ 26 Commercial Fisheries Entry Commission................................................... 27 Department of Labor .............................................................................................. 27 Division of Labor Standards & Safety ........................................................ 27 Division of Occupational Safety & Health ................................................. 28 Labor Relations Agency .............................................................................. 29 Workers' Compensation Board.................................................................... 29 Department of Natural Resources .......................................................................... 32 i Department of Public Safety .................................................................................. 33 Department of Revenue .......................................................................................... 34 Child Support Enforcement Division .......................................................... 34 Kenai Peninsula Borough ....................................................................................... 35 Kodiak Island Borough........................................................................................... 35 Matanuska Electric Association ............................................................................. 36 Matanuska-Susitna Borough .................................................................................. 36 Municipality of Anchorage..................................................................................... 37 Anchorage Equal Rights Commission ........................................................ 38 North Slope Borough .............................................................................................. 38 Office of the Governor ........................................................................................... 39 Office of Management & Budget, Division of Governmental Coordination ..................................................................................... 39 State Commission for Human Rights .......................................................... 39 PART II: LEGISLATION Office of Administrative Hearings (Ch. 163, SLA 2004) ...................................... 40 Legislative Affairs Agency Review of State Agency Regulations (Ch. 164, SLA 2004) ................................................................................... 41 Judicial Oversight of Administrative Matters (Ch. 166, SLA 2004) ..................... 42 PART III: ALPHABETICAL LISTING OF CASES ............................................... 42 ii PART I: CASES A. BY ISSUE APPEALS Friends of Cooper Landing v. Kenai Peninsula Borough, 79 P.3d 643 (Alaska 2003) The superior court dismissed an appeal, for lack of jurisdiction, of a Kenai Peninsula Borough Board of Adjustment decision, citing Cabana v. Kenai Peninsula Borough, 21 P.3d 833 (Alaska 2001). Friends of Cooper Landing appealed. The Kenai Assembly also sits as the Board of Adjustment. This case distinguishes between a decision made by a municipal board and a decision made by a municipal assembly, even though they are comprised of the same entity. In Cabana, the court upheld the superior court's dismissal of a challenge to the borough assembly's decision, holding that the assembly's decision is legislative and not reviewable. In this case, the Board of Adjustment's decision is quasi-judicial, and therefore reviewable by the court. The Alaska Supreme Court stated "[t]hat the Board of Adjustment and the Borough Assembly have the same members does not render inconsequential the difference between the separate acts and decisions of each body." A state law and a borough law that provides for just such appeals further bolstered their decision. Varilek v. City of Houston and Matanuska-Susitna Borough, 2004 WL 1418696 (Alaska 2004) The court upheld the first decision to dismiss the case because the owner failed to exhaust his administrative remedies. The owner appealed for a second time on the basis that he was unable to pay the borough’s $200 filing fee and therefore could not exhaust his administrative remedies. The court found that collateral estoppel did not prevent the case from being heard again because previously Varilek did not argue that it was the borough’s filing fees that prevented him from exhausting the administrative remedies. Varilek access to the legal system was dependent on paying the fee and the borough did not have a remedy in place for indigence. The court found that if indeed Varilek could prove himself indigent, not waiving the fees would violate Varilek's constitutional right of due process. The court remanded the case for the determination of Varilek's indigence. The court held that city be dismissed from this case with prejudice because all the land ordinances that Varilek alleged violated his constitutional rights were borough ordinances and not city ordinances. 1 Anderson v. Alaska Bar Assoc., 91 P.3d 271 (Alaska 2004) Andersen filed a grievance with the Alaska Bar Association alleging various instances of attorney misconduct. Bar Counsel took preliminary steps to investigate, but decided that a full investigation was not warranted and notified Anderson of his decision. Anderson sought reconsideration and the Board Discipline Liaison reviewed the matter. The Board Discipline Liaison concurred with Bar Counsel’s decision. Next, Anderson appealed to the superior court. Upon motion by the Bar Association, the superior court dismissed the appeal. Anderson appealed to the supreme court. The supreme court affirmed the superior court’s decision to dismiss based on lack of jurisdiction to hear appeals from the Alaska Bar Association concerning lawyer disciplinary matters. However, the court concluded that, under Bar Rule 22(a), it could review grievance – closing decisions. Based on further briefing, the court decided that Bar Counsel did not abuse his discretion in declining to accept the grievance for investigation. Matanuska Electric Association v. Chugach Electric Association, Inc., 99 P.3d 553 (Alaska 2004) MEA purchases electricity from Chugach and is suing for breach of their purchase and sale agreement (Agreement). The superior court denied Chugach’s motion to dismiss but granted Chugach summary judgement and awarded attorney fees. The court held it was proper for the courts to hear the case because the Regulatory Commission of Alaska waived its primary agency jurisdiction by declining to rule on the issue. Because the Regulatory Commission declined to rule, the court held that the principal of comity, res judicata, collateral estoppel and the exhaustion of administrative remedies were not applicable. The superior court ruled that Chugach did not have a contractual duty under the Agreement to manage its debt in accordance with the prudent utility practice defined in the Agreement. The court reversed and remanded this decision finding that the superior court did not consider several of the Agreement’s provisions and their implications. The court found that the Agreement governs not only the maintenance and operation of Chugach’s facilities and equipment but also includes the utility’s investment practices, which the court interpreted to include debt management. The court affirmed the superior court’s decision that the Agreement did not obligate Chugach to submit its permanent and interim rate requests through the Joint Committee process. The court found that MEA did not properly raise their claim that Chugach acted in bad faith in combining the permanent and interim rate requests because this issue was not raised in the lower courts. The court vacated and remanded the award of attorney’s fees to Chugach. 2 Fred Meyer of Alaska, Inc. v. Bailey, 100 P.3d 881 (Alaska 2004) The Fred Meyer retail store classified its manager, Bailey, as an "exempt employee" ineligible for overtime pay under the Alaska Wage and Hour Act (AWHA). Bailey later filed suit for back wages, claiming that he was entitled to overtime pay under the AWHA. The superior court found that under 8 AAC 15.910(7), Bailey was not exempt because he spent more than 40 percent of his work time on non-management duties (such as directly waiting on customers), and awarded him back pay. The size of the award was largely based on Bailey's estimates, as he was able to show that Fred Meyer management had ordered Bailey to turn in false time sheets. The superior court rejected a statute of limitations challenge, finding "equitable tolling" because Fred Meyer had wrongfully coerced Bailey to drop out of an earlier class action against the company for unpaid overtime wages. The supreme court upheld the superior court's decision, but remanded the case for determination of prejudgment interest. Simpson v. State, Commercial Fisheries Entry Commission, 101 P.3d 605 (Alaska 2004) The Commercial Fisheries Entry Commission (CFEC) denied Simpson's application for a limited entry permit because he had not proved enough "points" for prior participation in the fishery. CFEC's decision was upheld by both the superior court and the supreme court. The courts held that CFEC did not err when it set the number of permits for the fishery, and had correctly evaluated Simpson's participation points under its regulations. CONSTITUTIONAL ISSUES Malabed v. North Slope Borough, 70 P.3d 416 (Alaska 2003) After the Ninth Circuit certified to the Alaska Supreme Court the question whether a hiring preference to Native Americans violated the Alaska Constitution’s equal protection clause, the court held that the requirement lacked a legitimate basis and was unconstitutional. The court distinguished Morton v. Mancari, 417 U.S. 535 (1974), in which the U.S. Supreme Court upheld the BIA’s hiring preference for certain Native Americans. In Morton v. Mancari, the Court, after considering the BIA’s special interest in furthering Native American self-government and its limitation of the hiring preference to federally recognized tribes, concluded that the preference was “reasonably and directly related to a legitimate, nonracially based goal.” In contrast, the Alaska Supreme Court found that the borough had no obvious interest in furthering Native American self-governance and that it lacked the special power granted to the federal government to legislate on behalf of Native Americans. In addition, the court rejected the borough’s justification for the ordinance because, although the goals of reducing unemployment among the borough’s largest group of unemployed residents, strengthening the local 3 economy, and training its workforce were important interests, they favored one class of Alaskans over another and were thus illegitimate. Duncan v. Retired Public Employees of Alaska, Inc., 71 P.3d 882 (Alaska 2003) The court held that the Alaska Constitution’s prohibition against diminishing or impairing accrued retirement benefits protected public employee retirees against diminution of their health insurance benefits plan, although changes could be made to the plan so long as the value of the changes to the group as a whole was equivalent. See discussion in Employment & Labor Relations. Larson v. Cooper, 90 P.3d 125 (Alaska 2004) This opinion is a consolidation of two appeals filed by Larson, a maximumsecurity prisoner at Spring Creek Correctional Center. It arises from contact visitation rules that prohibited Larson from having extensive physical contact with his wife during visits. Larson argues that the visitation rules violate his Federal and State Constitutional rights to free exercise. The supreme court disagreed. The court held that Larson’s rights had not been violated under the Federal Constitution because the visitation rules were facially neutral, of general applicability, and reasonably related to legitimate penological objects. In addition, the court held that Larson’s rights had not been violated under the Alaska Constitution because the visitation rules served a compelling state interest in keeping prisons free from contraband, and adoption of alternative security measures proposed by Larson would be unduly burdensome on the DOC. The court also held that temporarily suspending contact visitation is not so atypical and significant a hardship beyond the ordinary prison life that it implicates a protected liberty interest. Treacy v. Municipality of Anchorage, 91 P.3d 252 (Alaska 2004). In this case, minors and their parents challenged the constitutionality of the Municipality’s curfew ordinance. They argued that the ordinance was void for vagueness, and that it violated the right to equal protection under the laws, the right of parents to raise their children, the right to travel, the right to privacy, and the rights of freedom of expression and association. The supreme court disagreed. The court found that the ordinance was not void for vagueness because it was written in a manner that could be understood by ordinary people. The court also found that the ordinance did not violate the First Amendment because the ordinance made clear that core First Amendment activities would be protected. The court applied strict scrutiny to the issue of whether the ordinance violated the right to equal protection. The court noted that to survive strict scrutiny, the classification created must be narrowly tailored to promote a compelling governmental interest and be the least restrictive means available to vindicate that interest. After its review, the court found that that the ordinance was narrowly tailored to promote the government’s interest in protecting juveniles and decreasing 4 juvenile crime and that the ordinance was narrowly tailored to promote the government’s interest. Finally, the court held that because the municipality’s interest was compelling and because the curfew ordinance was the alternative least restrictive of parental rights while meeting the municipality’s stated goals, the ordinance was not facially unconstitutional in limited circumstances. Doe v. State, Department of Public Safety, 92 P.3d 398 (Alaska 2004) In this opinion, the supreme court addresses whether applying the Alaska Sex Offender Registration Act (ASORA) to a person whose conviction had been set aside before ASORA became specifically applicable to those convictions violated Alaska Constitution’s guarantee of due process. The court held that it did. In its opinion, the court begins by distinguishing two recent decisions of the United States Supreme Court and a Ninth Circuit decision by noting that the decisions did not address the narrow issue before it. The court goes on to discuss the meaning and effect of setting aside a conviction and reasons that, in Doe’s case, the set-aside order conferred on Doe a fundamental right to be let alone with respect to the conviction that was being set aside. The court reviews the duties that would be placed on Doe if ASORA were applied and holds that they burden Doe’s fundamental liberty interests and right to procedural fairness. Next, the court reviews whether there is a compelling governmental interest in restricting those interests. The court stresses that once final, a set-aside order operates as a binding, case-specific determination that the charges underlying the conviction that was set aside no longer support an inference of public danger. Based on the fact that there was no legitimate reason to believe that Doe presented a danger to the community, the court reasons that there is no compelling governmental interest in requiring Doe to do the things ASORA demanded. The court reverses and remands for entry of an order enjoining the state from publishing Doe’s information. State, Dept. of Natural Resources v. Greenpeace, 96 P.3d 1056 (Alaska 2004) BP Exploration (Alaska), Inc. (BPXA) was issued a temporary water use permit by the Water Resource Section of the Division of Mining, Land and Water of the Department of Natural Resources (DNR). Greenpeace appealed the decision to issue the permit and the decision was automatically stayed. BPXA filed a motion asking DNR to lift the stay and requested the motion be given expedited consideration. DNR left a telephone message for Greenpeace’s representative informing him that Greenpeace had one day to oppose the lifting of the stay. The representative did not receive the message for several days. DNR lifted the stay the next day. Greenpeace requested reconsideration of DNR’s decision, but the request was denied. Greenpeace then appealed to superior court and asked the court to stay DNR’s decision to lift the automatic stay pending the court’s review of the merits of the appeal. During the time that the matter was before the superior court, the permit expired, a new statute relating to the issuance of permits became effective, and a regulation was adopted that abolished automatic stays during 5 appeals of permits. Based on these events, DNR and BPXA argued to the superior court that Greenpeace’s appeal was moot. The superior court disagreed and held that the matter was not moot because the public interest exception to the mootness doctrine applied, and that DNR had violated Greenpeace’s due process rights. DNR appealed. On appeal, the supreme court considered the three factors of the public interest doctrine and concluded that “this appeal as to the constitutionality of the procedure followed in lifting the stay satisfies the public interest exception to the mootness doctrine. The court reviewed the due process to which Greenpeace was entitled and held that DNR violated Greenpeace’s due process rights when it lifted the stay only one day after it was asked to do so. However, the court held that, because Greenpeace was given subsequent opportunities to challenge the stay and the permit issues, DNR had sufficiently cured the due process violation. The court reversed the decision of the superior court. ELECTIONS Grimm v. Wagoner, 77 P.3d 423 (Alaska 2003) Plaintiffs challenged a successful candidate for elected office who did not strictly comply with financial disclosure statutes. They also challenged, under the corrupt election practice, that the candidate should not be allowed to take office. At trial, the superior court found that substantial compliance was required for financial disclosures, and, for corrupt practice to be found, the practice had to be sufficient to change the results of the election. The Alaska Supreme Court affirmed both findings. Wagoner was found to have violated only two financial disclosures of the eight counts alleged and the court held the violations were trivial. The court found that APOC's regulations, which adopted the "substantial compliance" standard and a "graduated response" to various levels of financial non-compliance, were useful in interpreting the statutes, which the court found lacked specificity. Matanuska Electric Association v. Waterman, 87 P.3d 820 (Alaska 2004) After an election, the MEA board passed a motion not to seat a winning candidate due to violations of MEA bylaws. A MEA member filed suit against MEA alleging violations of bylaws, the Open Meetings Act, and the Alaska Constitution and seeking to compel the board to seat the candidate. Both sides filed motions for summary judgment. The superior court granted the MEA member’s motion for summary judgment after concluding that the board violated section 11 of its bylaws when it refused to seat the candidate and that MEA was estopped from enforcing its campaign disclosure regulations against the candidate because he relied on MEA’s disclosure forms and complied with them. On appeal, the supreme court notes that reviewing the plain language of the MEA bylaws prevents the board from using its discretion to determine whether a candidate should be disqualified due to campaign disclosure violations. The court affirmed the decision of the superior court. 6 EMPLOYMENT & LABOR RELATIONS Malabed v. North Slope Borough, 70 P.3d 416 (Alaska 2003) The court held that the borough’s ordinance granting a hiring preference to Native Americans violates the Alaska Constitution’s equal protection clause, concluding that the borough lacked a legitimate interest to support the preference. See discussion under Constitutional Issues. Duncan v. Retired Public Employees of Alaska, Inc., 71 P.3d 882 (Alaska 2003) Retired former public employees challenged changes to their health insurance plan, claiming that the changes violated the Alaska Constitution’s prohibition against diminishing or impairing accrued retirement benefits. First, the court found that Alaska Const. Art. XII, sec. 7, which protects accrued retirement benefits, protected health benefits, even though this particular benefit was not provided to public employees at the time of the constitutional convention. Second, noting that accrued benefits can be modified provided that detriments are off-set by advantages, the court held that, when determining the constitutionality of the modifications, the comparison should not merely be of the premium costs but on the value of the benefits. Third, the focus should be on the entire group affected, rather than on the effect on particular individuals, because retirees’ health needs varied and an individualized approach was unworkable. As another court stated, the vested right of the retirees was to a reasonable health package rather than to a frozen package of health benefits. Alaska State Employees Ass’n/AFSCME Local 52, AFL-CIO v. State, 74 P.3d 881 (Alaska 2003) The court held that an arbitrator committed gross error in deciding that the Alaska Child Support Enforcement Division lacked just cause to discharge an administrative clerk upon learning of her conviction for felony theft of public money, where the clerk had access to confidential information and held a position of trust. The clerk was in a bargaining unit with a compulsory grievance arbitration clause and the clerk’s union grieved the discharge. Finding that the discharge lacked just cause, the arbitrator ordered the clerk reinstated and the state appealed. The court considered whether to apply the gross error standard of review that it generally applies to grievance arbitration awards or the less deferential “arbitrary and capricious standard” that it has applied in compulsory arbitration cases, but the court determined that it did not need to decide which standard applied because it would overturn this arbitrator’s decision under either standard. The union bargaining agreement did not define the term “just cause” and the arbitrator applied a different definition for the term than the one that the court had adopted in its prior rulings. The court did not to address how far the arbitrator could depart from the court’s definition of “just cause” because it found that the arbitrator committed gross error in 7 applying the definition that she chose. The arbitrator’s findings -- that the grievant pleaded guilty to felony theft of public money, that the grievant’s position was of public trust, and that the personnel rules stated that a felony conviction could disqualify a job candidate from initial hire -- established “just cause” for discharge. Witt v. State, Department of Corrections, 75 P.3d 1030 (Alaska 2003) An equipment operator at the Department of Corrections was dismissed before the conclusion of his probationary period because he failed to comply with the department’s standards for conduct around inmates. Under the applicable union bargaining agreement, probationary employees were subject to discharge at will and they were not entitled to dismissal only for good cause. The bargaining agreement did not require the use of objective performance standards for probationary employees and, consequently, probationary employees served at the pleasure of the employer. The union initially pursued a grievance for the employee but eventually the union grievance committee dropped the grievance. The court examined whether the dismissal violated the implied covenant of good faith and fair dealing. It found that the operator did not present sufficient admissible evidence in support of his theory that he was hired only as a stopgap until the department could complete the process to retain an independent contractor to perform the work. The court affirmed the trial court’s grant of summary judgment. Board of Trade, Inc., Nome Airport E/W Runway Rehabilitation v. State, Department of Labor, 83 P.3d 1072 (Alaska 2004) This appeal from an administrative agency decision involved the application of the Little Davis-Bacon Act, which requires employers to pay prevailing wages for work on the site of a public works construction project. The court reversed the determination that the Act applied, finding that the hearing officer applied the wrong legal standard to conclude that the work was “on-site.” Whether work is “on-site” is fact specific. Here the question was whether a rock quarry was on-site so that work at the quarry had to be paid at prevailing wages. In an earlier review of the case, the court had ruled that the definition of “on-site” had to be geographically based and, in applying the definition, the hearing officer was to consider the normal meaning of “nearby,” the availability of alternative closer sites, the physical lay-out of the project, and whether the area was developed or undeveloped. On remand, the hearing officer concluded that the quarry was “on-site” because no closer quarry could consistently produce material that met the project specifications. The court examined whether substantial evidence (such relevant evidence as a reasonable mind might accept as adequate to support a conclusion) supported the hearing officer’s decision and concluded that it did not. The record contained evidence of other pits that were closer to the construction site that could have produced material for the project and thus the quarry could not be viewed as “adjacent” to the project. The court entered judgment for the employer. 8 Raad v. Alaska State Commission for Human Rights, 86 P.3d 899 (Alaska 2004) In this appeal from a decision of the human rights commission, the court upheld the commission’s dismissal of claims of unlawful discrimination. Although the court agreed with the commission that the evidence was insufficient to support the conclusion that the employer was aware of the claimant’s national origin when it made its decisions, and that the claimant failed to establish a prima facie claim of discrimination based on religion, it reversed the commission on the claim of retaliation for filing a claim of unlawful discrimination because it was unclear whether the commission had adequately considered evidence that the employer’s proffered reasons for not hiring the applicant were pretextual. The court described and applied the three-part McDonnell Douglas (411 U.S. 792 (1973)) analysis for discrimination and retaliation claims: to establish a claim of discriminatory retaliation, the claimant must establish that she engaged in a protected activity, that she suffered an adverse employment action, and that there was a causal link between the protected activity and the employer’s action. The burden then shifts to the employer to articulate a legitimate business reason for its action existing at the time of the action and supported by admissible evidence. If the employer meets this burden, the burden returns to the claimant to show that the reason provided was pretextual. The claimant can show pretext either directly or indirectly. The court held that the evidence offered to establish the prima facie case remained relevant on the issue of pretext. Here the hearing officer erred in stating that there was “no evidence” of pretext. Because the court could not determine from the record whether the hearing officer adequately considered the evidence on the issue of pretext, it remanded the matter to the commission. The court rejected the analysis in Bullington v. United States Airlines, 186 F.3d 1301, 1319 (10th Cir. 1999), that evidence of disparity of qualifications must “slap the court in the face” to demonstrate pretext. Kinzel v. Discovery Drilling, Inc., 93 P.3d 427 (Alaska 2004) This case concerns the wrongful termination of an employee. The employee claimed that the termination was motivated by the administrative claims that the employee had filed with the occupational safety and health and workers’ compensation boards. The employee first filed an anonymous occupational safety and health complaint against his employer, alleging exposure to harmful dust. The employee was assigned to a different worksite where he injured his back. The employee filed a workers’ compensation claim and took medical leave, and the employer discharged the employee for failure to return to work. The employee filed a civil action, claiming unlawful retaliation and constructive discharge, defamation, and interference with contract. Although the employee was an “at will” employee subject to dismissal without cause upon two weeks notice, the court departed from its previous practice of limiting damages for retaliation to damages available for breach of the employment agreement. The court held that the statements of public policy in the workers’ compensation and occupational safety and health laws provided a basis for a tort of retaliation for violation of public 9 policy, which would make tort remedies available to the employee. Both the occupational safety and health and workers’ compensation acts explicitly prohibit retaliation against employees who file complaints or claims under the acts. The court concluded that, in the case of a violation of “explicit public policy” (here the protection of workers who file safety complaints or workers’ compensation claims), a tort remedy was appropriate to deter prohibited conduct. State v. Public Safety Employees Association, 93 P.3d 409 (Alaska 2004) The court reviewed the Alaska Labor Relations Agency’s denial of a petition by a representative of a state employee bargaining unit, the Public Safety Employees Association (PSEA), to compel the state to arbitrate PSEA's grievance of the state’s decision not to provide a legal defense or to indemnify two employees who had been sued for conduct that the state determined was willful misconduct or gross negligence. The superior court had ruled that a provision of the collective bargaining agreement exempting indemnification decisions from the grievance/arbitration procedure was illegal and unenforceable under AS 23.40.210, which requires that every bargaining agreement include a grievance clause that has binding arbitration as its final step. In its review of the agency’s decision, the court applied its independent judgment to interpret AS 23.40.210, but it applied the reasonable basis standard of review to the agency’s decision that legal indemnification was a mandatory subject of bargaining. The reason is that determining what constitutes a mandatory subject of bargaining is a legal question on which the agency has specialized knowledge and experience. The court affirmed the agency’s decision, holding that the state was required to negotiate with the union over legal indemnification because it is a mandatory subject of collective bargaining. In negotiations, however, the union may waive the right to grievance/arbitration of a mandatory subject of bargaining, so long as its waiver is clear and unmistakable. In this case PSEA had knowingly and unmistakably agreed to exclude the state's legal indemnification decisions from the grievance-arbitration procedure. HEARINGS Brandon v. State, Dept. of Corrections, 73 P.3d 1230 (Alaska 2003) Prisoner found guilty after admission in disciplinary hearing appealed procedure on three grounds: 1) due process guarantee of fair and impartial hearing tribunal; 2) due process violation for failure to follow administrative code; 3) violation of the Cleary Final Settlement Agreement (FSA). The superior court affirmed, as did the Alaska Supreme Court. Prisoner was charged and found guilty of a high-moderate infraction (second most serious). The corrections' regulation in effect at the time of hearing called for three hearing officers but only one presided at his hearing. (An amended regulation allowing for one hearing officer took effect a few days later.) The court held that one hearing officer could be fair and impartial (the prisoner did not allege otherwise) and that 10 his due process rights were not violated. The court also held that the requirement of three officers was an administrative, not constitutional, rule and any violation of the Cleary FSA was harmless. The court based this last finding on the prisoner's admission, the fact that no witnesses were called, and his only argument was that he should be convicted of a less serious infraction. ACS of Alaska, Inc. v. Regulatory Commission of Alaska, 81 P.3d 292 (Alaska 2003) This is a fairly straightforward case about allocation of the burden of proof in an administrative hearing. However, because of the federal Telecommunications Act of 1996, the case becomes complicated by the law's travels through the federal courts. ACS is an incumbent local exchange carrier (ILEC) whose competition exemption was challenged by GCI, a competitive local exchange carrier (CLEC). The Alaska Public Utilities Commission (APUC), later the Regulatory Commission of Alaska (RCA), determined that GCI did not meet its burden to challenge the exemption and ACS continued in its monopoly. GCI appealed and the superior court remanded because, based on a FCC regulation valid at the time, APUC had erroneously placed the burden on GCI. On remand, APUC determined that GCI should be allowed to compete and RCA affirmed. ACS appealed to the superior court and it also affirmed. Meanwhile, although the U.S. Supreme Court held that the FCC had authority to adopt the regulation that included allocating the burden of proof, it remanded to the lower courts to determine substantive challenges to the regulation. In this, the regulation didn't fair so well. The Eighth Circuit held that the burden of proof was on the party requesting to move into the exempted area, in our case, GCI. The Alaska Supreme Court remanded for a new hearing with GCI to carry the burden. In addition, the court reversed RCA's decision that allowed competition in a greater area than originally asked for by GCI. LICENSE REVOCATION & SUSPENSION Wendte v. State, Board of Certified Real Estate Appraisers, 70 P.3d 1089 (Alaska 2003) Wendte was convicted of Theft in the First Degree, a crime of moral turpitude, for stealing approximately $250,000 from various Ketchikan area children's charities. Wendte was certified as a real estate appraiser. After Wendte was released from jail the Board of Certified Real Estate Appraisers suspended his license for two years, and the superior court upheld the sanction. The Alaska Supreme Court rejected Wendte's argument that because his crimes did not directly relate to his real estate appraiser activities, the board had no authority to discipline him. The court deferred to the agency's expertise in interpreting the disciplinary statute authorizing the board to exercise its own discretion in sanctioning license holders. It held that "criminal violations may bear on one's fitness to practice a particular profession" and did not have to be committed while engaged in the occupation. The court also rejected a double jeopardy argument, citing several prior cases, holding that suspension of a license is a regulatory act and not 11 punishment. Wendte also argued that the board did not consider current evidence when deciding to accept the hearing officer's recommendation. The court found that argument wanting because the board did consider such evidence. It went on to say that the board had no duty to hear such evidence from either party, notwithstanding the holding in a prior case where three years had elapsed between the administrative hearing and the final decision. See State, Dept. of Commerce & Economic Development v. Schnell, 8 P.3d 351 (Alaska 2000). PUBLIC RECORDS Fuller v. City of Homer, 75 P.3d 1059 (Alaska 2003) In this Public Records Act case, Fuller appealed the City of Homer's invocation of the deliberative process exception to deny access to documents used by the city manager in preparing an annexation petition. The superior court upheld the council's decision. The Alaska Supreme Court reversed and ordered disclosure. The documents in question resulted from the city manager's request for information from department heads regarding annexation. He explained in a memo that the information should not be released prior to a decision. Since the public records request was made after the annexation decision, the court held that there was no expectation of confidentiality. While the court rejected Fuller's contention that the deliberative process exception is not available to municipalities, it found in this case that disclosure outweighed confidentiality, relying partly on the memo. The court noted that a pre-decisional communication does not automatically lose its confidentiality once a decision is made, but found in this case that the citizen's right to disclosure outweighed the city's "initial interest in confidentiality." Justice Bryner filed a short concurring opinion that seriously doubted the records in this case would qualify as either deliberative or pre-decisional. This case has a good discussion of public records act cases. SOVEREIGN IMMUNITY Native Village of Eklutna v. Alaska Railroad Corporation, 87 P.3d 41 (Alaska 2004) This is the third appeal arising out of the Alaska Railroad Corporation’s (Railroad) quarry operations on land adjacent to the Native Village of Eklutna (Eklutna). In this case, Eklutna sought a preliminary injunction to enjoin the Railroad from further quarry activities because the Railroad did not have a conditional use permit. The Municipality of Anchorage (Municipality) intervened as a plaintiff. The superior court denied the preliminary injunction and ultimately concluded that the Railroad was not subject to local zoning ordinances. Eklutna appealed and Municipality cross-appealed against the Railroad. The issue of first impression decided on appeal was whether the Railroad enjoys sovereign immunity from local zoning laws. The Railroad argued that it was not subject to the Municipality’s zoning ordinance because the Alaska Railroad Corporation 12 Act (ARCA) and its legislative history showed that the legislature intended the Railroad to be immune from such laws. The supreme court reviewed several provisions of ARCA and concluded that ARCA provided no clear indication of the legislature’s intent with regard to local land use authority over the Railroad. The court also reviewed whether the legislature created the Railroad while relying on a presumption that state instrumentalities are immune from local zoning. The Railroad argued that because Alaska adopted its statutory scheme at a time when states and state agencies were exempt from municipal zoning in the absence of express statutory language to the contrary, the legislature must have intended that zoning ordinances did not apply to it. The court disagreed. The court went on to adopt the balancing of interests test to discern the legislature’s intent. The court noted that resort to the balancing of interest test is limited by direct statutory grants of immunity and situations where the state has made a reasonable good faith attempt to comply with local zoning laws. In this case, the court concluded that since the Railroad had not yet sought the conditional use permit required by the Municipality’s zoning ordinance, neither the supreme court nor the superior court should apply the balancing of interest test until the Railroad had done so. Finally, the court reviewed whether the Interstate Commerce Commission Termination Act preempted local zoning regulation. The court held that it did not because the Act’s preemption was aimed at improving the “nationwide efficiency of the railroad industry”, not at stopping all regulation. The superior court judgment in favor of the Railroad was reversed. STANDARD OF REVIEW Alaska State Employees Ass’n/AFSCME Local 52, AFL-CIO v. State, 74 P.3d 881 (Alaska 2003) The court held that an arbitrator committed gross error in deciding that the Alaska Child Support Enforcement Division lacked just cause to discharge an administrative clerk upon learning of her conviction for felony theft of public money, where the clerk had access to confidential information and held a position of trust. See discussion in Employment and Labor Relations. Greenpeace, Inc. v. State, 79 P.3d 591 (Alaska 2003) Greenpeace appealed State of Alaska's determination, through the Division of Governmental Coordination (DGC) and the Alaska Coastal Policy Council (ACMP), that BP Exploration's Northstar project to develop an offshore oilfield in the Beaufort Sea was consistent with the Alaska Coastal Management Program. Greenpeace's appeal consisted of two legal questions: (1) whether DGC violated the ACMP as a matter of law by failing to address the project's cumulative impacts, and (2) whether DGC unlawfully phased Northstar by allowing BP to commence the project with certain previously issued permits without ACMP review. The court considered these questions of law, giving no 13 deference to the agency's decision. The court held that the federal requirement to consider "cumulative impacts" did not impose that duty on the state and that "whole project analysis" includes cumulative effects. They held that a National Environmental Protection Agency (NEPA) type analysis is not required. Since Greenpeace did not appeal DGC's "hard look" requirement in determining consistency, but only the legal requirement to consider cumulative impacts separately, the court's inquiry ended. The court rejected Greenpeace's other issue, phasing, because DGC had rejected BP's request for phased consideration. Although Greenpeace argued "defacto" phasing occurred, the court ruled that Greenpeace attempted "to mask as a simple procedural issue of law a point that actually would challenge the merits of a complex, technical, and fact-intensive administrative decision enforcing standards rooted in agency expertise and discretion." It went on to say, "it is enough for present purposes to reject this claim as unfounded." Id. at 599. Mechanical Contractors of Alaska v. State, Dept. of Public Safety, 91 P.3d 240 (Alaska 2004) This opinion addresses two issues. First, whether the Department of Public Safety (DPS) and Department of Community and Economic Development (DCED) acted within the scope of their delegated authority when they adopted the International Mechanical Code (IMC). Second, whether DPS and DCED complied with the requirements of the Administrative Procedures Act. In addressing the first issue, the court applied the threepart O'Callahan test and found that DPS and DCED have express statutory authority to adopt regulations, that the regulations adopted were consistent and reasonably necessary to implement the statutes, and that the regulations adopted were not arbitrary. Mechanical argued that adoption of the IMC was per se invalid because the IMC conflicted with other statutes. In determining whether the adoption of the IMC conflicted with other statutes, the court reviewed specific statutory language and its legislative history. The court found that none of the statutory references to the Uniform Mechanical Code specifically related to the authority of DPS to adopt a particular mechanical code. As to the second issue, the court found that DPS and DCED substantially complied with the requirements of the Administrative Procedure Act because adoption of the IMC was reasonable and a fiscal note was not required. State v. Public Safety Employees Association, 93 P.3d 409 (Alaska 2004) In its review of an agency’s decision, the court applied its independent judgment to interpret AS 23.40.210, but applied the reasonable basis standard of review to the agency’s decision that legal indemnification was a mandatory subject of bargaining. The reason is that determining what constitutes a mandatory subject of bargaining is a legal question on which the Alaska Labor Relations Agency has specialized knowledge and experience. See discussion in Employment and Labor Relations. 14 Alaska Center for the Environment v. Rue, 95 P.3d 924 (Alaska 2004) The center challenged the commissioner’s decision to not include the Cook Inlet beluga whale (whale) as an endangered species under the Alaska Endangered Species Act (Act). The commissioner agreed with National Marine Fisheries Service that the decrease in population was caused by overharvesting, a problem that new federal regulations address. The court applied the “reasonable but not arbitrary” standard and affirmed the commissioner correctly reviewed the four factors under the Act to determine endangerment. The center also challenged the legal standard the commissioner applied to determine the whale was not a distinct species under the Act. The superior court found this to be a moot issue. The court applied the public interest exception to the mootness doctrine to look at the issue. The court found through the substitution of judgment standard that the commissioner applied a narrow and technical view by only considering the taxonomic classification of the whale. The commissioner erred by not following legislative intent to look at commonly understood meanings and relevant scientific information to exercise a full range of discretion. The decision of the superior court was affirmed, however, the center may require the commissioner to reevaluate his position on whether or not the whale is a species under the Act, if there are changes that would warrant further review. Thomas v. Anchorage Equal Rights Commission, 102 P.3d 937 (Alaska 2004) In this case the supreme court declined to reverse its earlier decision in Swanner v. Anchorage Equal Rights Commission, 874 P.2d 274 (Alaska 1994), that enforcing the state statutes and Anchorage Municipal Code provisions that prohibit landlords from refusing to rent property to persons because of their marital status did not violate the landlords' right to the free exercise of religion. Applying the doctrine of stare decisis, the court held that the landlord plaintiffs had not established that the Swanner case was wrongly decided, was no longer sound, or that more good than harm would be done by departing from precedent. Because the holding in the Swanner case controls the landlords' claims, this case was properly dismissed. STATUTORY CONSTRUCTION Kodiak Island Borough v. Mahoney, 71 P.3d 896 (Alaska 2003) A Kodiak resident proposed a municipal term limits ballot initiative. The municipal clerk determined the initiative was unconstitutional and refused to certify it. The superior court ordered the clerk to accept the initiative and the city appealed. The supreme court interpreted AS 29.26.110(a)(4), that requires a clerk to certify an initiative that "would be enforceable as a matter of law." The court held that clerks should only deny initiatives that violate the constitutional and statutory rules regulating initiatives or that propose ordinances for which controlling authority precludes enforcement as a 15 matter of law. Since the constitutional issues surrounding this initiative hadn't been resolved, the clerk should have accepted it. The court vacated the superior court's order that the clerk amend the deficient wording, finding that the better practice is to point out the deficiencies and have it resubmitted. The court refrained from determining the initiative's constitutionality; that review is undertaken only if the measure passes. Koyukuk River Basin Moose Co-Management Team v. Board of Game, 76 P.3d 383 (Alaska 2003) A coalition of native villages along the Koyukuk River sued the Board of Game regarding its management of moose in a "controlled use area" (CUA), which spanned two Game Management Units (GMU). The suit alleged violations of the Alaska Constitution, subsistence statutes, and intensive management statutes, in that the board did not treat the moose within the CUA as a separate population. The superior court granted summary judgment to the defendants and the Alaska Supreme Court affirmed, deferring to the board's expertise. The court found no requirement that simply because there is a population of game within a CUA that it is necessarily a discrete population that must be managed on a sustained yield basis pursuant to the constitution and relevant statutes. The board's management of the larger population in the GMUs, from which the CUA moose come, is sufficient. Grimm v. Wagoner, 77 P.3d 423 (Alaska 2003) Plaintiffs challenged a successful candidate for elected office who did not strictly comply with financial disclosure statutes. They also challenged, under the corrupt election practice, that the candidate should not be allowed to take office. At trial, the superior court found that substantial compliance was required for financial disclosures, and, for corrupt practice to be found, the practice had to be sufficient to change the results of the election. The Alaska Supreme Court affirmed both findings. Wagoner was found to have violated only two financial disclosures of the eight counts alleged and the court held the violations were trivial. The court found that APOC's regulations, which adopted the "substantial compliance" standard and a "graduated response" to various levels of financial non-compliance, were useful in interpreting the statutes, which the court found lacked specificity. Spinell Homes, Inc. v. Municipality of Anchorage, 78 P.3d 692 (Alaska 2003) Homebuilding contractor was successor in interest of several subdivisions, whose previous owners had entered into contracts with the municipality, as required by the city's code, to provide landscaping, sidewalks, etc. These conditions, appearing on the plats and plots, had to be met before building permits or certificates of occupancy would be issued. Contractor applied for the permits and certificates and municipality refused to grant them before the original conditions of the plats were met. Contractor sued for 16 inverse condemnation and for violation contractor's substantive due process, arguing that it was not a subdivider and the original owner had provided a bond for non-compliance. The superior court granted summary judgment in favor of the municipality. In affirming, the Alaska Supreme Court said that the municipality is authorized to require the conditions of the contracts to be performed prior to issuing permits or certificates because the conditions become restrictive convenants running with the land. The municipal code states, "that plat notes 'may be enforced against the subdivider or any subsequent owner by the municipality.'" The court also held that other parts of the municipal code, the Uniform Building Code, and the Uniform Administrative Code that appeared to require the municipality to issue the permits and certificates, also required that no laws had been violated. Not complying with the plat conditions was a violation of the law that prevented the other code conditions from applying. Because the conditions were on the plat notes, the contractor had both constructive and actual notice of the requirements, and the municipality did not violate substantive due process. The fact that the original subdivider had a bond did not dissuade the court from holding the present owner responsible for fulfilling the conditions of the plat. The original subdivider had gone out of business and the bond was no longer available. Further, the code was permissive rather than mandatory in its language regarding the municipality demanding payment from the bond. State of Alaska v. Kenaitze Indian Tribe, 83 P.3d 1060 (Alaska 2004) Under AS 16.05.258, the Alaska Joint Boards of Fisheries and Game promulgated a regulation (5 AAC 99.015) classifying the communities of Eklutna, Knik, and Ninilchik within the Anchorage-MatSu-Kenai Nonsubsistence Area. The Kenaitze Indian Tribe amended a pending complaint against the state to include claims that the regulation violated its members’ constitutional rights and that the regulation violated the statute because the joint boards exceeded their delegated authority. The Ninilchik Traditional Council, the Native Village of Eklutna, and the Knik Tribal Council intervened with similar claims against the state. The tribes’ constitutional claims were decided in State v. Kenaitze Indian Tribe, 894 P.2d 632 (Alaska 1995). Several years later, the tribes moved for summary judgment on the statutory claims, arguing that the regulation violated AS 16.05.258(c) because the joint boards improperly applied the statute. The superior court agreed. In addition, the superior court held that the joint boards’ inclusion of the Kenai Peninsula in the nonsubsistence area was valid because the parties did not litigate that area. The state appealed and the Kenaitze Indian Tribe cross-appealed. In its decision, the supreme court first addressed whether the regulation was consistent with its statutory provision and determined that it was. Next, the court reviewed whether the regulation was reasonable and not arbitrary. The court concluded that because the boards took a hard look at the information available to them, their inclusions of Knik, Eklutna and Ninilchik in the Anchorage-Matsu-Kenai Nonsubsistence area was reasonable and not arbitrary. The court reversed the summary judgment that declared invalid the inclusion of Knik, Eklutna, and Ninilchik in the Anchorage-Matsu-Kenai Nonsubsitence 17 Area and affirmed the summary judgment that declared valid the inclusion of the Kenai Peninsula in the nonsubsistence area. Alaska Trademark Shellfish v. State, Dept. of Fish and Game, 91 P.3d 953 (Alaska 2004) In this case, Alaska Trademark Shellfish applied to the Department of Fish and Game for aquatic farm permits to allow the company to raise geoducks on several farm sites. Alaska Trademark Shellfish intended to harvest and sell the wild geoducks already growing on their sites. The department approved the permits, but limited its use to “further growth” and for “propagation” of existing stocks. The applicants objected to the condition. The commissioner issued a final decision denying the permits. The applicants appealed. The superior court affirmed the commissioner’s decision by ruling that the Alaska Constitution’s common use clause precluded the department from giving geoduck farmers exclusive harvest rights to any commercially significant wild geoduck stocks. In its opinion, the supreme court reviewed the Aquatic Farming Act and the types of permits issued under the Act. The court found that nothing in the act gave the department the power to grant exclusive rights to harvest and sell existing wild geoduck stocks. Based on its findings, the court concluded that the commissioner properly denied the disputed applications. The court also considered the shellfish farmers’ argument that the state was estopped from denying them the exclusive right to harvest the wild geoducks due to the repeated assurance that they would acquire the right with their permits. Balancing the equities, the court concluded that it could not justify an order compelling the state to issue permits for exclusive fishing rights that the legislature had not authorized it to grant. Rush v. State, Department of Natural Resources, 98 P.3d 551(Alaska 2004) The court affirmed that applying the current version of AS 38.05.090 to a sale of state land would have had an impermissible retroactive effect on property rights. Rush, the prospective buyer of state land, wanted the current version of AS 38.05.090 to be applied to the sale because it would not require the lessee to receive compensation for fixtures on the property, unlike the former version which would require payment. The court considered whether the statute could be applied retroactively and whether applying the statute would in fact have a retroactive effect. The court found that even if the lessee acquired the buildings under the current version of the statute, the former lessee had acquired the buildings under the former statute and had gained the right to transfer everything it owned, including all its property rights. Libertarian Party of Alaska, Inc. v. State, 101 P.3d 616 (Alaska 2004) The supreme court ruled that the Alaska Public Office Commission (APOC) has the authority under its statutes to adopt regulations requiring the disclosure by political parties in Alaska of "soft money" contributions to the party. The court found that the reporting requirements aid APOC in its enforcement of the Alaska Campaign Disclosure 18 Act, because soft money can be used in numerous ways to evade statutory restrictions on the use of "hard money" contributions by political parties. The court found the challenged regulations were consistent with the Act, and were reasonable, not arbitrary. B. BY AGENCY ALASKA BAR ASSOCIATION Anderson v. Alaska Bar Assoc., 91 P.3d 271 (Alaska 2004) Andersen filed a grievance with the Alaska Bar Association alleging various instances of attorney misconduct. Bar Counsel took preliminary steps to investigate, but decided that a full investigation was not warranted and notified Anderson of his decision. Anderson sought reconsideration and the Board Discipline Liaison reviewed the matter. The Board Discipline Liaison concurred with Bar Counsel’s decision. Next, Anderson appealed to the superior court. Upon motion by the Bar Association, the superior court dismissed the appeal. Anderson appealed to the supreme court. The supreme court affirmed the superior court’s decision to dismiss based on lack of jurisdiction to hear appeals from the Alaska Bar Association concerning lawyer disciplinary matters. However, the court concluded that, under Bar Rule 22(a), it could review grievance – closing decisions. Based on further briefing, the court decided that Bar Counsel did not abuse his discretion in declining to accept the grievance for investigation. CITY OF HOMER Fuller v. City of Homer, 75 P.3d 1059 (Alaska 2003) In this Public Records Act case, Fuller appealed the City of Homer's invocation of the deliberative process exception to deny access to documents used by the city manager in preparing an annexation petition. The superior court upheld the council's decision. The Alaska Supreme Court reversed and ordered disclosure. The documents in question resulted from the city manager's request for information from department heads regarding annexation. He explained in a memo that the information should not be released prior to a decision. Since the public records request was made after the annexation decision, the court held that there was no expectation of confidentiality. While the court rejected Fuller's contention that the deliberative process exception is not available to municipalities, it found in this case that disclosure outweighed confidentiality, relying partly on the memo. The court noted that a pre-decisional communication does not automatically lose its confidentiality once a decision is made, but found in this case that the citizen's right to disclosure outweighed the city's "initial interest in confidentiality." Justice Bryner filed a short concurring opinion that seriously doubted the records in this case would qualify as either deliberative or pre-decisional. This case has a good discussion of public records act cases. 19 DEPARTMENT OF ADMINISTRATION ALASKA PUBLIC OFFICES COMMISSION Grimm v. Wagoner, 77 P.3d 423 (Alaska 2003) Plaintiffs challenged a successful candidate for elected office who did not strictly comply with financial disclosure statutes. They also challenged, under the corrupt election practice, that the candidate should not be allowed to take office. At trial, the superior court found that substantial compliance was required for financial disclosures, and, for corrupt practice to be found, the practice had to be sufficient to change the results of the election. The Alaska Supreme Court affirmed both findings. Wagoner was found to have violated only two financial disclosures of the eight counts alleged and the court held the violations were trivial. The court found that APOC's regulations, which adopted the "substantial compliance" standard and a "graduated response" to various levels of financial non-compliance, were useful in interpreting the statutes, which the court found lacked specificity. Libertarian Party of Alaska, Inc. v. State, 101 P.3d 616 (Alaska 2004) The supreme court ruled that the Alaska Public Office Commission (APOC) has the authority under its statutes to adopt regulations requiring the disclosure by political parties in Alaska of "soft money" contributions to the party. The court found that the reporting requirements aid APOC in its enforcement of the Alaska Campaign Disclosure Act, because soft money can be used in numerous ways to evade statutory restrictions on the use of "hard money" contributions by political parties. The court found the challenged regulations were consistent with the Act, and were reasonable, not arbitrary. DIVISION OF RETIREMENT AND BENEFITS Duncan v. Retired Public Employees of Alaska, Inc., 71 P.3d 882 (Alaska 2003) Retired former public employees challenged changes to their health insurance plan, claiming that the changes violated the Alaska Constitution’s prohibition against diminishing or impairing accrued retirement benefits. First, the court found that Alaska Const. Art. XII, sec. 7, which protects accrued retirement benefits, protected health benefits, even though this particular benefit was not provided to public employees at the time of the constitutional convention. Second, noting that accrued benefits can be modified provided that detriments are off-set by advantages, the court held that, when determining the constitutionality of the modifications, the comparison should not merely be of the premium costs but on the value of the benefits. Third, the focus should be on the entire group affected, rather than on the effect on particular individuals, because retirees’ health needs varied and an individualized approach was unworkable. As another 20 court stated, the vested right of the retirees was to a reasonable health package rather than to a frozen package of health benefits. DEPARTMENT OF COMMERCE, COMMUNITY & ECONOMIC DEVELOPMENT ALASKA RAILROAD CORPORATION Native Village of Eklutna v. Alaska Railroad Corp., 87 P.3d 41 (Alaska 2004) This is the third appeal arising out of the Alaska Railroad Corporation’s (Railroad) quarry operations on land adjacent to the Native Village of Eklutna (Eklutna). In this case, Eklutna sought a preliminary injunction to enjoin the Railroad from further quarry activities because the Railroad did not have a conditional use permit. The Municipality of Anchorage (Municipality) intervened as a plaintiff. The superior court denied the preliminary injunction and ultimately concluded that the Railroad was not subject to local zoning ordinances. Eklutna appealed and Municipality cross-appealed against the Railroad. The issue of first impression decided on appeal was whether the Railroad enjoys sovereign immunity from local zoning laws. The Railroad argued that it was not subject to the Municipality’s zoning ordinance because the Alaska Railroad Corporation Act (ARCA) and its legislative history showed that the legislature intended the Railroad to be immune from such laws. The supreme court reviewed several provisions of ARCA and concluded that ARCA provided no clear indication of the legislature’s intent with regard to local land use authority over the Railroad. The court also reviewed whether the legislature created the Railroad while relying on a presumption that state instrumentalities are immune from local zoning. The Railroad argued that because Alaska adopted its statutory scheme at a time when states and state agencies were exempt from municipal zoning in the absence of express statutory language to the contrary, the legislature must have intended that zoning ordinances did not apply to it. The court disagreed. The court went on to adopt the balancing of interests test to discern the legislature’s intent. The court noted that resort to the balancing of interest test is limited by direct statutory grants of immunity and situations where the state has made a reasonable good faith attempt to comply with local zoning laws. In this case, the court concluded that since the Railroad had not yet sought the conditional use permit required by the Municipality’s zoning ordinance, neither the supreme court nor the superior court should apply the balancing of interest test until the Railroad had done so. Finally, the court reviewed whether the Interstate Commerce Commission Termination Act preempted local zoning regulation. The court held that it did not because the Act’s preemption was aimed at improving the “nationwide efficiency of the railroad industry”, not at stopping all regulation. The superior court judgment in favor of the Railroad was reversed. 21 DIVISION OF OCCUPATIONAL LICENSING Mechanical Contractors of Alaska v. State, Dept. of Public Safety, 91 P.3d 240 (Alaska 2004) This opinion addresses two issues. First, whether the Department of Public Safety (DPS) and Department of Community and Economic Development (DCED) acted within the scope of their delegated authority when they adopted the International Mechanical Code (IMC). Second, whether DPS and DCED complied with the requirements of the Administrative Procedures Act. In addressing the first issue, the court applied the threepart O'Callahan test and found that DPS and DCED have express statutory authority to adopt regulations, that the regulations adopted were consistent and reasonably necessary to implement the statutes, and that the regulations adopted were not arbitrary. Mechanical argued that adoption of the IMC was per se invalid because the IMC conflicted with other statutes. In determining whether the adoption of the IMC conflicted with other statutes, the court reviewed specific statutory language and its legislative history. The court found that none of the statutory references to the Uniform Mechanical Code specifically related to the authority of DPS to adopt a particular mechanical code. As to the second issue, the court found that DPS and DCED substantially complied with the requirements of the Administrative Procedure Act because adoption of the IMC was reasonable and a fiscal note was not required. BOARD OF CERTIFIED REAL ESTATE APPRAISERS Wendte v. State, Board of Certified Real Estate Appraisers, 70 P.3d 1089 (Alaska 2003) Wendte was convicted of Theft in the First Degree, a crime of moral turpitude, for stealing approximately $250,000 from various Ketchikan children's charities. Wendte was certified as a real estate appraiser. The Board of Certified Real Estate Appraisers suspended his license for two years, and the superior court upheld the sanction. The Alaska Supreme Court rejected Wendte's argument that because his crimes did not directly relate to his real estate appraiser activities, the board did not have the authority to discipline him. The court deferred to the agency's expertise in interpreting the disciplinary statute authorizing the board to exercise its own discretion in sanctioning license holders. It held, as did the superior court, that "criminal violations may bear on one's fitness to practice a particular profession" and did not have to be committed while engaged in the occupation. The court also rejected a double jeopardy argument, citing several prior cases, holding that suspension of a license is a regulatory act and not punishment. Wendte also argued that the board did not consider current evidence when deciding to accept the hearing officer's recommendation. The court found that argument wanting because the board did consider such evidence. It went on to say that the board had no duty to hear such evidence from either party, notwithstanding the holding in a prior case where three years had elapsed between the administrative hearing and the final 22 decision. See State, Dept. of Commerce & Economic Development v. Schnell, 8 P.3d 351 (Alaska 2000). REGULATORY COMMISSION OF ALASKA ACS of Alaska, Inc. v. Regulatory Commission of Alaska, 81 P.3d 292 (Alaska 2003) This is a fairly straightforward case about allocation of the burden of proof in an administrative hearing. However, because of the federal Telecommunications Act of 1996, the case becomes complicated by the law's travels through the federal courts. ACS is an incumbent local exchange carrier (ILEC) whose competition exemption was challenged by GCI, a competitive local exchange carrier (CLEC). The Alaska Public Utilities Commission (APUC), later the Regulatory Commission of Alaska (RCA), determined that GCI did not meet its burden to challenge the exemption and ACS continued in its monopoly. GCI appealed and the superior court remanded because, based on a FCC regulation valid at the time, APUC had erroneously placed the burden on GCI. On remand, APUC determined that GCI should be allowed to compete and RCA affirmed. ACS appealed to the superior court and it also affirmed. Meanwhile, although the U.S. Supreme Court held that the FCC had authority to adopt the regulation that included allocating the burden of proof, it remanded to the lower courts to determine substantive challenges to the regulation. In this, the regulation didn't fair so well. The Eighth Circuit held that the burden of proof was on the party requesting to move into the exempted area, in our case, GCI. The Alaska Supreme Court remanded for a new hearing with GCI to carry the burden. In addition, the court reversed RCA's decision that allowed competition in a greater area than originally asked for by GCI. Matanuska Electric Association v. Chugach Electric Association, Inc., 99 P.3d 553 (Alaska 2004) MEA purchases electricity from Chugach and is suing for breach of their purchase and sale agreement (Agreement). The superior court denied Chugach’s motion to dismiss but granted Chugach summary judgement and awarded attorney fees. The court held it was proper for the courts to hear the case because the Regulatory Commission of Alaska waived its primary agency jurisdiction by declining to rule on the issue. Because the Regulatory Commission declined to rule, the court held that the principal of comity, res judicata, collateral estoppel and the exhaustion of administrative remedies were not applicable. The superior court ruled that Chugach did not have a contractual duty under the Agreement to manage its debt in accordance with the prudent utility practice defined in the Agreement. The court reversed and remanded this decision finding that the superior court did not consider several of the Agreement’s provisions and their implications. The court found that the Agreement governs not only the maintenance and operation of Chugach’s facilities and equipment but also includes the utility’s investment practices, which the court interpreted to include debt management. The court affirmed 23 the superior court’s decision that the Agreement did not obligate Chugach to submit its permanent and interim rate requests through the Joint Committee process. The court found that MEA did not properly raise their claim that Chugach acted in bad faith in combining the permanent and interim rate requests because this issue was not raised in the lower courts. The court vacated and remanded the award of attorney’s fees to Chugach. DEPARTMENT OF CORRECTIONS Brandon v. State, Dept. of Corrections, 73 P.3d 1230 (Alaska 2003) Prisoner found guilty after admission in disciplinary hearing appealed procedure on three grounds: 1) due process guarantee of fair and impartial hearing tribunal; 2) due process violation for failure to follow administrative code; 3) violation of the Cleary Final Settlement Agreement (FSA). The superior court affirmed, as did the Alaska Supreme Court. Prisoner was charged and found guilty of a high-moderate infraction (second most serious). The corrections' regulation in effect at the time of hearing called for three hearing officers but only one presided at his hearing. (An amended regulation allowing for one hearing officer took effect a few days later.) The court held that one hearing officer could be fair and impartial (the prisoner did not allege otherwise) and that his due process rights were not violated. The court also held that the requirement of three officers was an administrative, not constitutional, rule and any violation of the Cleary FSA was harmless. The court based this last finding on the prisoner's admission, the fact that no witnesses were called, and his only argument was that he should be convicted of a less serious infraction. Witt v. State, Department of Corrections, 75 P.3d 1030 (Alaska 2003) An equipment operator at the Department of Corrections was dismissed before the conclusion of his probationary period because he failed to comply with the department’s standards for conduct around inmates. Under the applicable union bargaining agreement, probationary employees were subject to discharge at will and they were not entitled to dismissal only for good cause. The bargaining agreement did not require the use of objective performance standards for probationary employees and, consequently, probationary employees served at the pleasure of the employer. The union initially pursued a grievance for the employee but eventually the union grievance committee dropped the grievance. The court examined whether the dismissal violated the implied covenant of good faith and fair dealing. It found that the operator did not present sufficient admissible evidence in support of his theory that he was hired only as a stopgap until the department could complete the process to retain an independent contractor to perform the work. The court affirmed the trial court’s grant of summary judgment. 24 Larson v. Cooper, 90 P.3d 125 (Alaska 2004) This opinion is a consolidation of two appeals filed by Larson, a maximumsecurity prisoner at Spring Creek Correctional Center. It arises from contact visitation rules that prohibited Larson from having extensive physical contact with his wife during visits. Larson argues that the visitation rules violate his United States and Alaska Constitutional rights to free exercise. The supreme court disagreed. The court held that Larson’s rights had not been violated under the U.S. Constitution because the visitation rules were facially neutral, of general applicability, and reasonably related to legitimate penological objects. In addition, the court held that Larson’s rights had not been violated under the Alaska Constitution because the visitation rules served a compelling state interest in keeping prisons free from contraband, and adoption of alternative security measures proposed by Larson would be unduly burdensome on the DOC. The court also held that temporarily suspending contact visitation is not so atypical and significant a hardship beyond the ordinary prison life that it implicates a protected liberty interest. DEPARTMENT OF FISH & GAME Alaska Trademark Shellfish v. State, Dept. of Fish and Game, 91 P.3d 953 (Alaska 2004) In this case, Alaska Trademark Shellfish applied to the Department of Fish and Game for aquatic farm permits to allow the company to raise geoducks on several farm sites. Alaska Trademark Shellfish intended to harvest and sell the wild geoducks already growing on their sites. The department approved the permits, but limited its use to “further growth” and for “propagation” of existing stocks. The applicants objected to the condition. The commissioner issued a final decision denying the permits. The applicants appealed. The superior court affirmed the commissioner’s decision by ruling that the Alaska Constitution’s common use clause precluded the department from giving geoduck farmers exclusive harvest rights to any commercially significant wild geoduck stocks. In its opinion, the supreme court reviewed the Aquatic Farming Act and the types of permits issued under the Act. The court found that nothing in the act gave the department the power to grant exclusive rights to harvest and sell existing wild geoduck stocks. Based on its findings, the court concluded that the commissioner properly denied the disputed applications. The court also considered the shellfish farmers’ argument that the state was estopped from denying them the exclusive right to harvest the wild geoducks due to the repeated assurance that they would acquire the right with their permits. Balancing the equities, the court concluded that it could not justify an order compelling the state to issue permits for exclusive fishing rights that the legislature had not authorized it to grant. Alaska Center for the Environment v. Rue, 95 P.3d 924 (Alaska 2004) The center challenged the commissioner’s decision to not include the Cook Inlet beluga whale (whale) as an endangered species under the Alaska Endangered Species Act 25 (Act). The commissioner agreed with National Marine Fisheries Service that the decrease in population was caused by overharvesting, a problem that new federal regulations address. The court applied the “reasonable but not arbitrary” standard and affirmed the commissioner correctly reviewed the four factors under the Act to determine endangerment. The center also challenged the legal standard the commissioner applied to determine the whale was not a distinct species under the Act. The superior court found this to be a moot issue. The court applied the public interest exception to the mootness doctrine to look at the issue. The court found through the substitution of judgment standard that the commissioner applied a narrow and technical view by only considering the taxonomic classification of the whale. The commissioner erred by not following legislative intent to look at commonly understood meanings and relevant scientific information to exercise a full range of discretion. The decision of the superior court was affirmed, however, the center may require the commissioner to reevaluate his position on whether or not the whale is a species under the Act, if there are changes that would warrant further review. BOARD OF GAME Koyukuk River Basin Moose Co-Management Team v. Board of Game, 76 P.3d 383 (Alaska 2003) A coalition of native villages along the Koyukuk River sued the Board of Game regarding its management of moose in a "controlled use area" (CUA), which spanned two Game Management Units (GMU). The suit alleged violations of the Alaska Constitution, subsistence statutes, and intensive management statutes, in that the board did not treat the moose within the CUA as a separate population. The superior court granted summary judgment to the defendants and the Alaska Supreme Court affirmed, deferring to the board's expertise. The court found no requirement that simply because there is a population of game within a CUA that it is necessarily a discrete population that must be managed on a sustained yield basis pursuant to the constitution and relevant statutes. The board's management of the larger population in the GMUs, from which the CUA moose come, is sufficient. State of Alaska v. Kenaitze Indian Tribe, 83 P.3d 1060 (Alaska 2004) Under AS 16.05.258, the Alaska Joint Boards of Fisheries and Game promulgated a regulation (5 AAC 99.015) classifying the communities of Eklutna, Knik, and Ninilchik within the Anchorage-MatSu-Kenai Nonsubsistence Area. The Kenaitze Indian Tribe amended a pending complaint against the state to include claims that the regulation violated its members’ constitutional rights and that the regulation violated the statute because the joint boards exceeded their delegated authority. The Ninilchik Traditional Council, the Native Village of Eklutna, and the Knik Tribal Council intervened with similar claims against the state. The tribes’ constitutional claims were decided in State v. 26 Kenaitze Indian Tribe, 894 P.2d 632 (Alaska 1995). Several years later, the tribes moved for summary judgment on the statutory claims, arguing that the regulation violated AS 16.05.258(c) because the joint boards improperly applied the statute. The superior court agreed. In addition, the superior court held that the joint boards’ inclusion of the Kenai Peninsula in the nonsubsistence area was valid because the parties did not litigate that area. The state appealed and the Kenaitze Indian Tribe cross-appealed. In its decision, the supreme court first addressed whether the regulation was consistent with its statutory provision and determined that it was. Next, the court reviewed whether the regulation was reasonable and not arbitrary. The court concluded that because the boards took a hard look at the information available to them, their inclusions of Knik, Eklutna and Ninilchik in the Anchorage-Matsu-Kenai Nonsubsistence area was reasonable and not arbitrary. The court reversed the summary judgment that declared invalid the inclusion of Knik, Eklutna, and Ninilchik in the Anchorage-Matsu-Kenai Nonsubsitence Area and affirmed the summary judgment that declared valid the inclusion of the Kenai Peninsula in the nonsubsistence area. COMMERCIAL FISHERIES ENTRY COMMISSION Simpson v. State, Commercial Fisheries Entry Commission, 101 P.3d 605 (Alaska 2004) The Commercial Fisheries Entry Commission (CFEC) denied Simpson's application for a limited entry permit because he had not proved enough "points" for prior participation in the fishery. CFEC's decision was upheld by both the superior court and the supreme court. The courts held that CFEC did not err when it set the number of permits for the fishery, and had correctly evaluated Simpson's participation points under its regulations. DEPARTMENT OF LABOR DIVISION OF LABOR STANDARDS & SAFETY Board of Trade, Inc., Nome Airport E/W Runway Rehabilitation v. State, Department of Labor, 83 P.3d 1072 (Alaska 2004) This appeal from an administrative agency decision involved the application of the Little Davis-Bacon Act, which requires employers to pay prevailing wages for work on the site of a public works construction project. The court reversed the determination that the Act applied, finding that the hearing officer applied the wrong legal standard to conclude that the work was “on-site.” Whether work is “on-site” is fact specific. Here the question was whether a rock quarry was on-site so that work at the quarry had to be paid at prevailing wages. In an earlier review of the case, the court had ruled that the definition of “on-site” had to be geographically based and, in applying the definition, the hearing officer was to consider the normal meaning of “nearby,” the availability of 27 alternative closer sites, the physical lay-out of the project, and whether the area was developed or undeveloped. On remand, the hearing officer concluded that the quarry was “on-site” because no closer quarry could consistently produce material that met the project specifications. The court examined whether substantial evidence (such relevant evidence as a reasonable mind might accept as adequate to support a conclusion) supported the hearing officer’s decision and concluded that it did not. The record contained evidence of other pits that were closer to the construction site that could have produced material for the project and thus the quarry could not be viewed as “adjacent” to the project. The court entered judgment for the employer. Fred Meyer of Alaska, Inc. v. Bailey, 100 P.3d 881 (Alaska 2004) The Fred Meyer retail store classified its manager, Bailey, as an "exempt employee" ineligible for overtime pay under the Alaska Wage and Hour Act (AWHA). Bailey later filed suit for back wages, claiming that he was entitled to overtime pay under the AWHA. The superior court found that under 8 AAC 15.910(7), Bailey was not exempt because he spent more than 40 percent of his work time on non-management duties (such as directly waiting on customers), and awarded him back pay. The size of the award was largely based on Bailey's estimates, as he was able to show that Fred Meyer management had ordered Bailey to turn in false time sheets. The trial court rejected a statute of limitations challenge, finding "equitable tolling" because Fred Meyer had wrongfully coerced Bailey to drop out of an earlier class action against the company for unpaid overtime wages. The supreme court upheld the trial court's decision, but remanded the case for determination of prejudgment interest. DIVISION OF OCCUPATIONAL SAFETY & HEALTH Kinzel v. Discovery Drilling, Inc., 93 P.3d 427 (Alaska 2004) This case concerns the wrongful termination of an employee. The employee claimed that the termination was motivated by the administrative claims that the employee had filed with the occupational safety and health and workers’ compensation boards. The employee first filed an anonymous occupational safety and health complaint against his employer, alleging exposure to harmful dust. The employee was assigned to a different worksite where he injured his back. The employee filed a workers’ compensation claim and took medical leave, and the employer discharged the employee for failure to return to work. The employee filed a civil action, claiming unlawful retaliation and constructive discharge, defamation, and interference with contract. Although the employee was an “at will” employee subject to dismissal without cause upon two weeks notice, the court departed from its previous practice of limiting damages for retaliation to damages available for breach of the employment agreement. The court held that the statements of public policy in the workers’ compensation and occupational safety and health laws provided a basis for a tort of retaliation for violation of public 28 policy, which would make tort remedies available to the employee. Both the occupational safety and health and workers’ compensation acts explicitly prohibit retaliation against employees who file complaints or claims under the acts. The court concluded that, in the case of a violation of “explicit public policy” (here the protection of workers who file safety complaints or workers’ compensation claims), a tort remedy was appropriate to deter prohibited conduct. LABOR RELATIONS AGENCY State v. Public Safety Employees Association, 93 P.3d 409 (Alaska 2004) The court reviewed the Alaska Labor Relations Agency’s denial of a petition by a representative of a state employee bargaining unit, the Public Safety Employees Association (PSEA), to compel the state to arbitrate PSEA’s grievance of the state’s decision not to provide a legal defense or to indemnify two employees who had been sued for conduct that the state determined was willful misconduct or gross negligence. The superior court had ruled that a provision of the collective bargaining agreement exempting indemnification decisions from the grievance/arbitration procedure was illegal and unenforceable under AS 23.40.210, which requires that every bargaining agreement include a grievance clause that has binding arbitration as its final step. In its review of the agency’s decision, the court applied its independent judgment to interpret AS 23.40.210, but it applied the reasonable basis standard of review to the agency’s decision that legal indemnification was a mandatory subject of bargaining. The reason is that determining what constitutes a mandatory subject of bargaining is a legal question on which the agency has specialized knowledge and experience. The court affirmed the agency’s decision, holding that the state was required to negotiate with the union over legal indemnification because it is a mandatory subject of collective bargaining. In negotiations, however, the union may waive the right to grievance/arbitration of a mandatory subject of bargaining, so long as its waiver is clear and unmistakable. In this case PSEA had knowingly and unmistakably agreed to exclude the state's legal indemnification decisions from the grievance-arbitration procedure. WORKERS' COMPENSATION BOARD Robinson v. Municipality of Anchorage, 69 P.3d 489 (Alaska 2003) Substantial factor test, letter from attorney in litigation part of evidence rebutting presumption. Employee credibility properly undercut by conflicting claims and testimony. Partial permanent injury not attributed to work injury correctly denied. Claimant failed to adequately raise theory of “everyday” injury, Board therefore properly retained jurisdiction to consider new claim. 29 Bradbury v. Chugach Electric Association, 71 P.3d 901 (Alaska 2003) Substantial evidence supported decision. Presumption rebutted by medical experts stating work activities likely did not cause cyst to rupture. The Board engaged in reasoned decision-making by relying on those opinions. Employee basing argument on “perceived flaws” in experts’ testimony, rather than his evidence supporting claim, essentially urges Court to discount those experts. Court will not participate in that impermissible re-weighing of evidence. Crawford & Co. v. Baker-Withrow, 73 P.3d 1227 (Alaska 2003) Only excessive treatments rendered more than 14 days before are barred by provider’s filing untimely treatment plan. Board cannot “waive” statutory requirements under 8 AAC 45.195. Alyeska Pipeline Service Co. v. DeShong, 77 P.3d 1227 (Alaska 2003) Employee can promise to repay unemployment benefits and then receive temporary total disability payments for same period despite statute that bars receipt of temporary total compensation for period that unemployment insurance benefits are received. Crawford & Co. v. Baker-Withrow, 81 P.3d 982 (Alaska 2003) Board determination of “frivolous or unfair” controversion is a final, appealable order under State, Department of Fish & Game, Sport Fish Division v. Meyer, as Board has completed its fact-finding, determination has adverse effect on insurer, and is binding on the Department of Insurance. (Dissent points out that allowing an appeal by the insurer, when employee has no stake in the outcome, and Board declines to participate, forces employee to act as "private attorney general" to defend Board's decision.) Gunter v. Kathy-O Estates, 87 P.3d 65 (Alaska 2004) Brain-damaged employee entered into a settlement through a guardian. The employee tried to overturn settlement and claimed various financial losses as compensation. The Board's denial of the claims was affirmed; as a creature of statute, the Board's authority is limited to powers and duties in the statute. Remedy provided by the Workers' Compensation Act is exclusive and cannot be expanded by the Board. Superior court properly appointed guardian and guardian properly dismissed employee's second claim to overturn settlement; decision was reasonable in view of low likelihood of success and possibility, "very probably correct", that employee would take less if the settlement were overturned. 30 Kaiser v. Royal Insurance Co. of America, 89 P.3d 740 (Alaska 2004) Order staying all claims on appeal and remanding to the Board for findings whether settlement agreement should be set aside. Employee claimed that the settlement was not in his best interests. Should the Board determine the settlement was valid, the court retained jurisdiction to consider, after Board's findings made, whether employer improperly influenced or attempted to improperly influence the employee's physician in contravention of the implied covenant of good faith and fair dealing. The court suggested that authority of the insurer to communicate with the employee's physician may become substantially restricted by the carrier's contractual duty to comply with the express or implied terms of the agreement – that is, that the carrier may not take direct action to deprive the employee of the benefit of the settlement bargain. Excursion Inlet Packing Co. v. Ungale, 92 P.3d 413 (Alaska 2004) Per curiam decision adopting superior court decision reversing Board's decision that employee's death of unknown causes after he quit his employment was not workrelated. Held: remote site doctrine applied, employer failed to bring forth substantial evidence that employee's unwitnessed death off employer premises but while awaiting transport off site was not work-related. Boyd v. Arctic Slope Native Association, 2004 WL 1418682 (Alaska 2004) Board need not make findings on every minor issue, but must make findings on "material and contested" issues; findings need not be exhaustive. An issue is material if it affects a right to compensation. Thus, in context of a lengthy decision that addressed petitions to exclude evidence, failure to expressly deny petitions to exclude expert witness testimony was not fatal, as it was implicitly denied by Board's reliance on their testimony in final decision on merits. However, failure to make findings regarding employee physician's opinion and to explain inferences drawn from report evidence required remand for further findings. Parties have right to "meaningful" cross-examination of experts, in context of party's participation in depositions, objection to continuances of deposition, exercise of cross-exam at hearing, and waiver of rebuttal, the party's receipt of expert's report only several days before deposition does not rise to the level of a due process violation. On remand, Board affirmed its earlier decision. Cowan v. Wal-Mart, 93 P.3d 420 (Alaska 2004) Statement by medical expert that everyday activities are as likely as work activities to cause breast implant deflation is effectively a discounting of work activities as a substantial factor in bringing about injury, and sufficient to rebut the presumption of compensability. A statement that causes of an injury are unknown does not undermine a 31 competent physician's opinion that the work is not a substantial factor in the injury; to hold otherwise would create an irrebuttable presumption. Blanas v. Alaska Workers' Compensation Board, 2004 WL 1637664 (Alaska 2004) Board's findings in administrative hearing on whether settlement agreement was procured by fraud (including "unintentional nondisclosure contrary to legal or equitable duties, trust or confidence") upheld as supported by substantial evidence. Although Board's quashing of subpoena of Board member was not addressed, Alaska Supreme Court noted that mere use of Board member as witness to an event is not impermissible taking of evidence of "deliberative process". Odsather v. Richardson, 96 P.3d 521 (Alaska 2004) Civil suit by truck owner/driver against trucking company that leased trucks. Owner/driver's application for and receipt of workers' compensation benefits is not conclusive proof of his status as an employee – only evidence of that status, absent an award (decision) by the Board. (The owner/driver's benefits had been denied by the insurer on basis he was not an employee.) Brown v. Patriot Maintenance, Inc., 99 P.3d 544 (Alaska 2004) Uncertainty within the medical community concerning the precise medical cause of a condition like fibromyalgia does not prevent the board from finding that a qualified physician's opinion on causation amounts to substantial evidence. Rule that inconclusive medical testimony of a single expert is to be resolved in an employee's favor does not stretch to the "doubt" created by divergent medical testimony. Having expressly acknowledged and summarized lay testimony, failure to further discuss and make findings regarding it does not impede meaningful appellate review where evidence was not material to essential question of causation. DEPARTMENT OF NATURAL RESOURCES State, Dept. of Natural Resources v. Greenpeace, 96 P.3d 1056 (Alaska 2004) BP Exploration (Alaska), Inc. (BPXA) was issued a temporary water use permit by the Water Resource Section of the Division of Mining, Land and Water of the Department of Natural Resources (DNR). Greenpeace appealed the decision to issue the permit and the decision was automatically stayed. BPXA filed a motion asking DNR to lift the stay and requested the motion be given expedited consideration. DNR left a telephone message for Greenpeace’s representative informing him that Greenpeace had one day to oppose the lifting of the stay. The representative did not receive the message for several days. DNR lifted the stay the next day. Greenpeace requested reconsideration 32 of DNR’s decision, but the request was denied. Greenpeace then appealed to superior court and asked the court to stay DNR’s decision to lift the automatic stay pending the court’s review of the merits of the appeal. During the time that the matter was before the superior court, the permit expired, a new statute relating to the issuance of permits became effective, and a regulation was adopted that abolished automatic stays during appeals of permits. Based on these events, DNR and BPXA argued to the superior court that Greenpeace’s appeal was moot. The superior court disagreed and held that the matter was not moot because the public interest exception to the mootness doctrine applied, and that DNR had violated Greenpeace’s due process rights. DNR appealed. On appeal, the supreme court considered the three factors of the public interest doctrine and concluded that “this appeal as to the constitutionality of the procedure followed in lifting the stay satisfies the public interest exception to the mootness doctrine. The court reviewed the due process to which Greenpeace was entitled and held that DNR violated Greenpeace’s due process rights when it lifted the stay only one day after it was asked to do so. However, the court held that, because Greenpeace was given subsequent opportunities to challenge the stay and the permit issues, DNR had sufficiently cured the due process violation. The court reversed the decision of the superior court. Rush v. State, Department of Natural Resources, 98 P.3d 551 (Alaska 2004) The court affirmed that applying the current version of AS 38.05.090 to a sale of state land would have been an impermissible retroactive effect on property rights. Rush, the prospective buyer of state land, wanted the current version of AS 38.05.090 to be applied to the sale because it would not require the lessee to receive compensation for fixtures on the property, unlike the former version which would require payment. The court considered whether the statute could be applied retroactively and whether applying the statute would in fact have a retroactive effect. The court found that, even if the lessee acquired the buildings under the current version of the statute, the former lessee had acquired the buildings under the former statute and had gained the right to transfer everything it owned, including all its property rights. DEPARTMENT OF PUBLIC SAFETY Mechanical Contractors of Alaska v. State, Dept. of Public Safety, 91 P.3d 240 (Alaska 2004) This opinion addresses two issues. First, whether the Department of Public Safety (DPS) and Department of Community and Economic Development (DCED) acted within the scope of their delegated authority when they adopted the International Mechanical Code (IMC). Second, whether DPS and DCED complied with the requirements of the Administrative Procedures Act. In addressing the first issue, the court applied the threepart O'Callahan test and found that DPS and DCED have express statutory authority to adopt regulations, that the regulations adopted were consistent and reasonably necessary 33 to implement the statutes, and that the regulations adopted were not arbitrary. Mechanical argued that adoption of the IMC was per se invalid because the IMC conflicted with other statutes. In determining whether the adoption of the IMC conflicted with other statutes, the court reviewed specific statutory language and its legislative history. The court found that none of the statutory references to the Uniform Mechanical Code specifically related to the authority of DPS to adopt a particular mechanical code. As to the second issue, the court found that DPS and DCED substantially complied with the requirements of the Administrative Procedure Act because adoption of the IMC was reasonable and a fiscal note was not required. Doe v. State, Department of Public Safety, 92 P.3d 398 (Alaska 2004) In this opinion, the court addresses whether applying the Alaska Sex Offender Registration Act (ASORA) to a person whose conviction had been set aside before ASORA became specifically applicable to those convictions violated Alaska Constitution’s guarantee of due process. The court held that it did. In its opinion, the court begins by distinguishing two recent decisions of the United States Supreme Court and a Ninth Circuit decision by noting that the decisions did not address the narrow issue before it. The court goes on to discuss the meaning and effect of setting aside a conviction and reasons that, in Doe’s case, the set-aside order conferred on Doe a fundamental right to be let alone with respect to the conviction that was being set aside. The court reviews the duties that would be placed on Doe if ASORA were applied and holds that they burden Doe’s fundamental liberty interests and right to procedural fairness. Next, the court reviews whether there is a compelling governmental interest in restricting those interests. The court stresses that once final, a set-aside order operates as a binding, case-specific determination that the charges underlying the conviction that was set aside no longer support an inference of public danger. Based on the fact that there was no legitimate reason to believe that Doe presented a danger to the community, the court reasons that there is no compelling governmental interest in requiring Doe to do the things ASORA demanded. The court reverses and remands for entry of an order enjoining the state from publishing Doe’s information. DEPARTMENT OF REVENUE CHILD SUPPORT ENFORCEMENT DIVISION Alaska State Employees Ass’n/AFSCME Local 52, AFL-CIO v. State, 74 P.3d 881 (Alaska 2003) The court held that an arbitrator committed gross error in deciding that the Alaska Child Support Enforcement Division lacked just cause to discharge an administrative clerk upon learning of her conviction for felony theft of public money, where the clerk had access to confidential information and held a position of trust. The clerk was in a 34 bargaining unit with a compulsory grievance arbitration clause and the clerk’s union grieved the discharge. Finding that the discharge lacked just cause, the arbitrator ordered the clerk reinstated and the state appealed. The court considered whether to apply the gross error standard of review that it generally applies to grievance arbitration awards or the less deferential “arbitrary and capricious standard” that it has applied in compulsory arbitration cases, but the court determined that it did not need to decide which standard applied because it would overturn this arbitrator’s decision under either standard. The union bargaining agreement did not define the term “just cause” and the arbitrator applied a different definition for the term than the one that the court had adopted in its prior rulings. The court did not to address how far the arbitrator could depart from the court’s definition of “just cause” because it found that the arbitrator committed gross error in applying the definition that she chose. The arbitrator’s findings -- that the grievant pleaded guilty to felony theft of public money, that the grievant’s position was of public trust, and that the personnel rules stated that a felony conviction could disqualify a job candidate from initial hire -- established “just cause” for discharge. KENAI PENINSULA BOROUGH Friends of Cooper Landing v. Kenai Peninsula Borough, 79 P.3d 643 (Alaska 2003) The superior court dismissed an appeal, for lack of jurisdiction, of a Kenai Peninsula Borough Board of Adjustment decision, citing Cabana v. Kenai Peninsula Borough, 21 P.3d 833 (Alaska 2001). Friends of Cooper Landing appealed. The Kenai Assembly also sits as the Board of Adjustment. This case distinguishes between a decision made by a municipal board and a decision made by a municipal assembly, even though they are comprised of the same entity. In Cabana, the court upheld the superior court's dismissal of a challenge to the borough assembly's decision, holding that the assembly's decision is legislative and not reviewable. In this case, the Board of Adjustment's decision is quasi-judicial, and therefore reviewable by the court. The Alaska Supreme Court stated "[t]hat the Board of Adjustment and the Borough Assembly have the same members does not render inconsequential the difference between the separate acts and decisions of each body." A state law and a borough law that provides for just such appeals further bolstered their decision. KODIAK ISLAND BOROUGH Kodiak Island Borough v. Mahoney, 71 P.3d 896 (Alaska 2003) A Kodiak resident proposed a municipal term limits ballot initiative. The municipal clerk determined the initiative was unconstitutional and refused to certify it. The superior court ordered the clerk to accept the initiative and the city appealed. The supreme court interpreted AS 29.26.110(a)(4), that requires a clerk to certify an initiative that "would be enforceable as a matter of law." The court held that clerks should only 35 deny initiatives that violate the constitutional and statutory rules regulating initiatives or that propose ordinances for which controlling authority precludes enforcement as a matter of law. Since the constitutional issues surrounding this initiative hadn't been resolved, the clerk should have accepted it. The court vacated the superior court's order that the clerk amend the deficient wording, finding that the better practice is to point out the deficiencies and have it resubmitted. The court refrained from determining the initiative's constitutionality; that review is undertaken only if the measure passes. MATANUSKA ELECTRIC ASSOCIATION Matanuska Electric Association v. Waterman, 87 P.3d 820 (Alaska 2004) After an election, the MEA board passed a motion not to seat a winning candidate due to violations of MEA bylaws. A MEA member filed suit against MEA alleging violations of bylaws, the Open Meetings Act, and the Alaska Constitution and seeking to compel the board to seat the candidate. Both sides filed motions for summary judgment. The superior court granted the MEA member’s motion for summary judgment after concluding that the board violated section 11 of its bylaws when it refused to seat the candidate and that MEA was estopped from enforcing its campaign disclosure regulations against the candidate because he relied on MEA’s disclosure forms and complied with them. On appeal, the supreme court notes that reviewing the plain language of the MEA bylaws prevents the board from using its discretion to determine whether a candidate should be disqualified due to campaign disclosure violations. The court affirmed the decision of the superior court. MATANUSKA-SUSITNA BOROUGH Varilek v City of Houston and Matanuska-Susitna Borough, 2004 WL 1418696 (Alaska 2004) The court upheld the first decision to dismiss the case because the owner failed to exhaust his administrative remedies. The owner appealed for a second time on the basis that he was unable to pay the borough’s $200 filing fee and therefore could not exhaust his administrative remedies. The court found that collateral estoppel did not prevent the case from being heard again because previously Varilek did not argue that it was the borough’s filing fees that prevented him from exhausting the administrative remedies. Varilek’s access to the legal system was dependent on paying the fee and the borough did not have a remedy in place for indigence. The court found that if indeed Varilek could prove himself indigent, not waiving the fees would violate Varilek’s constitutional right of due process. The court remanded the case for the determination of Varilek indigence. The court held that city be dismissed from this case with prejudice because all the land ordinances that Varilek alleged violated his constitutional rights were borough ordinances and not city ordinances. 36 MUNICIPALITY OF ANCHORAGE Spinell Homes, Inc. v. Municipality of Anchorage, 78 p.3d 692 (Alaska 2003) Homebuilding contractor was successor in interest of several subdivisions, whose previous owners had entered into contracts with the municipality, as required by the city's code, to provide landscaping, sidewalks, etc. These conditions, appearing on the plats and plots, had to be met before building permits or certificates of occupancy would be issued. Contractor applied for the permits and certificates and municipality refused to grant them before the original conditions of the plats were met. Contractor sued for inverse condemnation and for violation contractor's substantive due process, arguing that it was not a subdivider and the original owner had provided a bond for non-compliance. The superior court granted summary judgment in favor of municipality. In affirming, the Supreme Court said that the municipality is authorized to require the conditions of the contracts to be performed prior to issuing permits or certificates because the conditions become restrictive convenants running with the land. The municipal code states, "that plat notes 'may be enforced against the subdivider or any subsequent owner by the municipality.'" The court also held that other parts of the municipal code, the Uniform Building Code, and the Uniform Administrative Code that appeared to require the municipality to issue the permits and certificates, also required that no laws had been violated. Not complying with the plat conditions was a violation of the law that prevented the other code conditions from applying. Because the conditions were on the plat notes, the contractor had both constructive and actual notice of the requirements, and the municipality did not violate substantive due process. The fact that the original subdivider had a bond did not dissuade the court from holding the present owner responsible for fulfilling the conditions of the plat. The original subdivider had gone out of business and the bond was no longer available. Further, the code was permissive rather than mandatory in its language regarding the municipality demanding payment from the bond. Native Village of Eklutna v. Alaska Railroad Corporation, 87 P.3d 41 (Alaska 2004) This case deals with the application of municipal zoning ordinances to the Alaska Railroad Corporation. See discussion in Sovereign Immunity. Treacy v. Municipality of Anchorage, 91 P.3d 252 (Alaska 2004) In this case, minors and their parents challenged the constitutionality of the Municipality’s curfew ordinance. They argued that the ordinance was void for vagueness, and that it violated the right to equal protection under the laws, the right of parents to raise their children, the right to travel, the right to privacy, and the rights of freedom of expression and association. The supreme court disagreed. The court found that the ordinance was not void for vagueness because it was written in a manner that 37 could be understood by ordinary people. The court also found that the ordinance did not violate the First Amendment because the ordinance made clear that core First Amendment activities would be protected. The court applied strict scrutiny to the issue of whether the ordinance violated the right to equal protection. The court noted that to survive strict scrutiny, the classification created must be narrowly tailored to promote a compelling governmental interest and be the least restrictive means available to vindicate that interest. After its review, the court found that that the ordinance was narrowly tailored to promote the government’s interest in protecting juveniles and decreasing juvenile crime and that the ordinance was narrowly tailored to promote the government’s interest. Finally, the court held that because the municipality’s interest was compelling and because the curfew ordinance was the alternative least restrictive of parental rights while meeting the municipality’s stated goals, the ordinance was not facially unconstitutional in limited circumstances. ANCHORAGE EQUAL RIGHTS COMMISSION Thomas v. Anchorage Equal Rights Commission, 102 P.3d 937 (Alaska 2004) In this case the supreme court declined to reverse its earlier decision in Swanner v. Anchorage Equal Rights Commission, 874 P.2d 274 (Alaska 1994), that enforcing the state statutes and Anchorage Municipal Code provisions that prohibit landlords from refusing to rent property to persons because of their marital status did not violate the landlords' right to the free exercise of religion. Applying the doctrine of stare decisis, the court held that the landlord plaintiffs had not established that the Swanner case was wrongly decided, was no longer sound, or that more good than harm would be done by departing from precedent. Because the holding in the Swanner case controls the landlords' claims, this case was properly dismissed. NORTH SLOPE BOROUGH Malabed v. North Slope Borough, 70 P.3d 416 (Alaska 2003) After the Ninth Circuit certified to the Alaska Supreme Court the question whether a hiring preference to Native Americans violated the Alaska Constitution’s equal protection clause, the court held that the requirement lacked a legitimate basis and was unconstitutional. The court distinguished Morton v. Mancari, 417 U.S. 535 (1974), in which the U.S. Supreme Court upheld the BIA’s hiring preference for certain Native Americans. In Morton v. Mancari, the Court, after considering the BIA’s special interest in furthering Native American self-government and its limitation of the hiring preference to federally recognized tribes, concluded that the preference was “reasonably and directly related to a legitimate, nonracially based goal.” In contrast, the Alaska Supreme Court found that the borough had no obvious interest in furthering Native American selfgovernance and that it lacked the special power granted to the federal government to 38 legislate on behalf of Native Americans. In addition, the court rejected the borough’s justification for the ordinance because, although the goals of reducing unemployment among the borough’s largest group of unemployed residents, strengthening the local economy, and training its workforce were important interests, they favored one class of Alaskans over another and were thus illegitimate. OFFICE OF THE GOVERNOR OFFICE OF MANAGEMENT & BUDGET, DIVISION OF GOVERNMENTAL COORDINATION Greenpeace, Inc. v. State, 79 P.3d 591 (Alaska 2003) Greenpeace appealed State of Alaska's determination, through the Division of Governmental Coordination (DGC) and the Alaska Coastal Policy Council (ACMP), that BP Exploration's Northstar project to develop an offshore oilfield in the Beaufort Sea was consistent with the Alaska Coastal Management Program. Greenpeace's appeal consisted of two legal questions: (1) whether DGC violated the ACMP as a matter of law by failing to address the project's cumulative impacts, and (2) whether DGC unlawfully phased Northstar by allowing BP to commence the project with certain previously issued permits without ACMP review. The court considered these questions of law, giving no deference to the agency's decision. The court held that the federal requirement to consider "cumulative impacts" did not impose that duty on the state and that "whole project analysis" includes cumulative effects. They held that a National Environmental Protection Agency (NEPA) type analysis is not required. Since Greenpeace did not appeal DGC's "hard look" requirement in determining consistency, but only the legal requirement to consider cumulative impacts separately, the court's inquiry ended. The court rejected Greenpeace's other issue, phasing, because DGC had rejected BP's request for phased consideration. Although Greenpeace argued "defacto" phasing occurred, the court ruled that Greenpeace attempted "to mask as a simple procedural issue of law a point that actually would challenge the merits of a complex, technical, and fact-intensive administrative decision enforcing standards rooted in agency expertise and discretion." It went on to say, "it is enough for present purposes to reject this claim as unfounded." Id. at 599. STATE COMMISSION FOR HUMAN RIGHTS Raad v. Alaska State Commission for Human Rights, 86 P.3d 899 (Alaska 2004) In this appeal from a decision of the human rights commission, the court upheld the commission’s dismissal of claims of unlawful discrimination. Although the court agreed with the commission that the evidence was insufficient to support the conclusion that the employer was aware of the claimant’s national origin when it made its decisions, 39 and that the claimant failed to establish a prima facie claim of discrimination based on religion, it reversed the commission on the claim of retaliation for filing a claim of unlawful discrimination because it was unclear whether the commission had adequately considered evidence that the employer’s proffered reasons for not hiring the applicant were pretextual. The court described and applied the three-part McDonnell Douglas (411 U.S. 792 (1973)) analysis for discrimination and retaliation claims: to establish a claim of discriminatory retaliation, the claimant must establish that she engaged in a protected activity, that she suffered an adverse employment action, and that there was a causal link between the protected activity and the employer’s action. The burden then shifts to the employer to articulate a legitimate business reason for its action existing at the time of the action and supported by admissible evidence. If the employer meets this burden, the burden returns to the claimant to show that the reason provided was pretextual. The claimant can show pretext either directly or indirectly. The court held that the evidence offered to establish the prima facie case remained relevant on the issue of pretext. Here the hearing officer erred in stating that there was “no evidence” of pretext. Because the court could not determine from the record whether the hearing officer adequately considered the evidence on the issue of pretext, it remanded the matter to the commission. The court rejected the analysis in Bullington v. United States Airlines, 186 F.3d 1301, 1319 (10th Cir. 1999), that evidence of disparity of qualifications must “slap the court in the face” to demonstrate pretext. PART II: LEGISLATION Office of Administrative Hearings, Ch. 163, SLA 2004 (HCS CSSB 203(FIN)) Chapter 163, SLA 2004 transfers the adjudicatory function of many state agencies to a newly created Office of Administrative Hearings (OAH), headed by a chief administrative law judge. The jurisdiction of the new OAH is set out in AS 44.62.030(a) (section 3 of the Act). It includes a wide range of state agencies and programs, including alcoholic beverages licenses, charitable gaming, banking and financial institutions, occupational licensing, child support enforcement, permanent fund dividends, insurance, state procurement, and business license endorsements, to name a few. In addition to the agencies and programs listed in AS 44.62.030(a), some agencies are required to use an administrative law judge employed or retained by the OAH to conduct their hearings, but the hearings will be conducted under the agencies' existing statutes and procedures. These include hearings held by the Professional Teaching Practices Commission (PTCP), the Violent Crimes Compensation Board (VCCB), the Human Rights Commission (HRC), or under the Occupational Safety and Health Act (OSHA) (sections 30, 34-38 of the Act). 40 AS 44.64.030(b) allows agencies that are not required to use hearing officers from the OAH to request the office to conduct a hearing, authorizes the OAH to provide the service, and authorizes an agreement with OAH for payment of the service it provides. AS 44.64.030(c) allows the agency to delegate final decision-making authority to the OAH administrative law judge (ALJ) and provides a direct appeal from the ALJ decision to the superior court. Allowing the agency to delegate decision-making authority to a hearing officer is consistent with AS 44.62.340 in the Administrative Procedure Act, which authorizes agencies to delegate final decision-making authority to a hearing officer unless the agency's statute prohibits that delegation by providing that the "agency itself" must decide matters within its jurisdiction. The ALJs assume the hearing powers of the administrative agency whose case they are hearing, but they do not have their own general hearing powers. AS 44.64.060 sets out the procedures for OAH hearings. The chief ALJ has the authority to adopt by regulation the procedures for hearings in the OAH, but the hearing must be conducted in accordance with any applicable laws, including the Administrative Procedure Act (AS 44.62). The section addresses conflicts between the laws and regulations by providing that the agency's statutes control, and the OAH regulations control to the maximum extent possible without conflicting with the agency's statutes. Chapter 163, SLA 2004 includes a lengthy transition period. Under sections 92, 96, and 97 of the Act, the OAH will assume responsibility for the 35 administrative programs listed in AS 44.64.030(a) (section 3 of the Act) on July 1, 2005, and responsibility for the water, air, energy and environmental conservation programs listed in AS 44.64.030(a)(33) (section 82 of the Act) on July 1, 2007. Legislative Affairs Agency Review of State Agency Regulations, Ch. 164, SLA 2004 (CSHB 424(JUD)(EFD FLD S)) Chapter 164, SLA 2004 establishes a framework for the legislative review of state agency regulations. Covered state agencies are required to electronically transmit public notices and proposed regulations to the Legislative Affairs Agency (LAA) and various legislative committees. New AS 24.20.105 provides that the LAA may conduct a legal review of the proposed regulations to evaluate: (1) the legality and constitutionality of the proposed regulations, (2) whether the state agency has the statutory authority to adopt the proposed regulations, and (3) whether the proposed regulations are consistent with the applicable statutes (section 2 of the Act). If the LAA determines that the proposed regulation fails to meet these standards, the LAA must send written notice of that to the Alaska Department of Law and to designated legislators and legislative committees. The LAA review is confidential (section 4 of the Act). LAA suggestions for changes are not binding on the state agency, which retains the authority to complete the regulations adoption process. (The new law does not apply to regulations adopted by the 41 Board of Fisheries or the Board of Game; AS 24.20.105(j)). The Act took effect on October 23, 2004. Judicial Oversight of Administrative Matters, Ch. 166, SLA 2004 (SCS CSHB 533(FIN)) Chapter 166, SLA 2004 provides additional judicial oversight of administrative proceedings by allowing a party facing "immediate and irreparable harm" from "unreasonable delay" in an administrative hearing to petition the superior court for a remedy. New AS 44.62.305(c) provides that the court may: (1) enjoin the administrative proceeding and determine the matter in superior court, (2) order that the administrative matter be handled by another form of dispute resolution, or (3) establish a deadline for the state agency to issue a final administrative decision. The Act took effect on October 24, 2004. PART III: ALPHABETICAL LISTING OF CASES ACS of Alaska, Inc., v. Regulatory Commission of Alaska, 81 P.3d 292 (Alaska 2003) ............................................................................... 11, 23 Alaska Center for the Environment v. Rue, 95 P.3d 924 (Alaska 2004) ............................................................................... 15, 25 Alaska State Employees Ass’n/AFSCME Local 52, AFL-CIO v. State, 74 P.3d 881 (Alaska 2003) ........................................................................... 7, 13, 34 Alaska Trademark Shellfish v. State, Dept. of Fish and Game, 91 P.3d 953 (Alaska 2004) ............................................................................... 18, 25 Alyeska Pipeline Service Co. v. DeShong, 77 P.3d 1227 (Alaska 2003) ................................................................................... 30 Anderson v. Alaska Bar Assoc., 91 P.3 271 (Alaska 2004) ................................................................................... 2, 19 Blanas v. Alaska Workers’ Compensation Board, 2004 WL 1637664 (Alaska 2004) .......................................................................... 32 Board of Trade, Inc., Nome Airport E.W Runway Rehabilitation v. State Department of Labor, 83 P.3d 1072 (Alaska 2004) ............................................................................... 8, 27 42 Boyd v. Arctic Slop Native Association, 2004 WL 1418682 (Alaska 2004) .......................................................................... 31 Bradbury v. Chugach Electric Association, 71 P.3d 901 (Alaska 2003) ..................................................................................... 30 Brandon v. State, Dept. of Corrections, 73 P.3d 1230 (Alaska 2003) ............................................................................. 10, 24 Brown v. Patriot Maintenance, Inc., 99 P.3d 544 (Alaska 2004) ..................................................................................... 32 Cowan v. Wal-Mart, 93 P.3d 420 (Alaska 2004) ..................................................................................... 31 Crawford & Co. v. Baker-Withrow, 73 P.3d 1227 (Alaska 2003) ................................................................................... 30 Doe v. State, Department of Public Safety, 92 P.3d 398 (Alaska 2004) ................................................................................. 5, 34 Duncan v. Retired Public Employees of Alaska, Inc., 71 P.3d 882 (Alaska 2003) ............................................................................. 4, 7, 20 Excursion Inlet Packing Co. v. Ungale, 92 P.3d 413 (Alaska 2004) ..................................................................................... 31 Fred Meyer of Alaska, Inc., v. Bailey, 100 P.3d 881 (Alaska 2004) ............................................................................... 3, 28 Friends of Cooper Landing v. Kenai Peninsula Borough, 79 P.3d 643 (Alaska 2003) ................................................................................. 1, 35 Fuller v. City of Homer, 75 P.3d 1059 (Alaska 2003) ............................................................................. 12, 19 Greenpeace, Inc. v. State, 79 P.3d 591 (Alaska 2003) ............................................................................... 13, 39 Grimm v. Wagoner, 77 P.3d 423 (Alaska 2003) ........................................................................... 6, 16, 20 43 Gunter v. Kathy-O Estates, 87 P.3d 65 (Alaska 2004) ....................................................................................... 30 Kaiser v. Royal Insurance Co. of America, 89 P.3d 740 (Alaska 2004) ..................................................................................... 31 Kinzel v. Discovery Drilling, Inc., 93 P.3d 427 (Alaska 2004) ................................................................................. 9, 28 Kodiak Island Borough v. Mahoney, 71 P.3d 896 (Alaska 2003) ............................................................................... 15, 35 Koyukuk River Basin Moose Co-Management Team v. Board of Game, 76 P.3d 383 (Alaska 2003) ............................................................................... 16, 26 Larson v. Cooper, 90 P.3d 125 (Alaska 2004) ................................................................................. 4, 25 Libertarian Party of Alaska, Inc. v. State, 101 P.3d 616 (Alaska 2004) ............................................................................. 18, 20 Malabed v. North Slope Borough, 70 P.3d 416 (Alaska 2003) ............................................................................. 3, 7, 38 Matanuska Electric Association v. Chugach Electric Association, Inc., 99 P.3d 553 (Alaska 2004) ................................................................................. 2, 23 Matanuska Electric Association v. Waterman, 87 P.3d 820 (Alaska 2004) ................................................................................. 6, 36 Mechanical Contractors of Alaska v. State, Dept. of Public Safety, 91 P.3d 240 (Alaska 2004) ......................................................................... 14, 22, 33 Native Village of Eklutna v. Alaska Railroad Corporation, 87 P.3d 41 (Alaska 2004) ........................................................................... 12, 21, 37 Odsather v. Richardson, 96 P.3d 521 (Alaska 2004) ..................................................................................... 32 Raad v. Alaska State Commission for Human Rights, 86 P.3d 899 (Alaska 2004) ................................................................................. 9, 39 44 Robinson v. Municipality of Anchorage, 69 P.3d 489 (Alaska 2003) ..................................................................................... 29 Rush v. State, Department of Natural Resources, 98 P.3d 551 (Alaska 2004) ............................................................................... 18, 33 Simpson v. State, Commercial Fisheries Entry Commission, 101 P.3d 605 (Alaska 2004) ............................................................................... 3, 27 Spinell Homes, Inc., v. Municipality of Anchorage, 78 P.3d 692 (Alaska 2003) ............................................................................... 16, 37 State v. Public Safety Employees Association, 93 P.3d 409 (Alaska 2004) ......................................................................... 10, 14, 29 State of Alaska v. Kenaitze Indian Tribe, 83 P.3d 1060 (Alaska 2004) ............................................................................. 17, 26 State, Dept. of Natural Resources v. Greenpeace, 96 P.3d 1056 (Alaska 2004) ............................................................................... 5, 32 Thomas v. Anchorage Equal Rights Commission, 102 P.3d 937 (Alaska 2004) ............................................................................. 15, 38 Treacy v. Municipality of Anchorage, 91 P.3d 252 (Alaska 2004) ................................................................................. 4, 37 Varilek v. City of Houston and Matanuska-Susitna Borough, 2004 WL 1418696 (Alaska 2004) ...................................................................... 1, 36 Wendte v. State, Board of Certified Real Estate Appraisers, 70 P.3d 1089 (Alaska 2003) ............................................................................. 11, 22 Witt v. State, Department of Corrections, 75 P.3d 1030 (Alaska 2003) ............................................................................... 8, 24 45