DOCSLIB.ORG

A Survey of the Law of Non-Contractual Indemnity and Contribution

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text

Load more

A Survey of the Law of Non-Contractual Indemnity and Contribution Compiled by the Products Liability Group of the Primerus Defense Institute International Society of Primerus Law Firms April 2015 A Survey of the Law of Non-Contractual Indemnity and Contribution Compiled by the Products Liability Group of the Primerus Defense Institute International Society of Primerus Law Firms Executive Committee Raymond Lyons, Jr., Chair Lipe Lyons Murphy Nahrstadt & Pontikis, Ltd. | Chicago, Illinois | www.lipelyons.com Brian A. Comer, Vice Chair Collins & Lacy, P.C. | Columbia, South Carolina | www.collinsandlacy.com Jeremy J. Cook, Industry Liaison Chair Downs u Stanford, P.C. | Dallas, Texas | www.downsstandford.com Michael J. Vetter Sr., Member Involvement and Outreach Spicer Rudstrom, PLLC | Nashville, Tennessee | www.spicerfirm.com Leo Daly, Member at Large Grogan Graffam, P.C. | Pittsburgh, Pennsylvania | www.grograngraffam.com James B. Carlson, Member at Large Christian & Small LLP | Birmingham, Alabama | www.csattorneys.com Dane J. Bitterlin, Member at Large Neil, Dymott, Frank, McFall & Trexler APLC | San Diego, California | www.neildymott.com April 2015 © April 2015 International Society of Primerus Law Firms, Grand Rapids, Michigan A Survey of the Law of Non-Contractual Indemnity and Contribution By Raymond Lyons, Jr. Lipe Lyons Murphy Nahrstadt & Pontikis, Ltd. Chicago, Illinois Tel: 312.448.6230 Fax: 312.726.2273 Email: [email protected] www.lipelyons.com Introduction an invitation to defend itself in court in a products liability This survey of law has been prepared by the Products lawsuit. The expenses incurred in the defense of lawsuits Liability Group of the Primerus International Society of seeking compensation for personal injury or property Law Firms, Defense Institute and replaces the earlier April damage are often staggering - even when the defense is 2012 survey. Although our focus is the defense of products ultimately successful. liability litigation, this survey of law applies generally Some products, by their very nature, are the subject of to any company that finds itself the target of litigation in an enormous amount of litigation throughout the country. jurisdictions throughout the United States. Oftentimes, manufacturers, distributors, and retailers The purpose of this compendium is to provide a general find themselves named in lawsuits with the same group reference source regarding the applicable law in each of defendants. Sometimes these parties have defined state on issues related to the allocation of fault as between their respective liabilities through contractual indemnity defendants and non-parties in a products liability case in provisions. However, it is not unusual in a profit driven circumstances where there is no contract dealing with the economy for a company to enter into transactions without issue. It is not intended to be a comprehensive discussion addressing potential liability issues up front. Even when the of the law in each jurisdiction, but simply to provide easy legal department tries to have indemnity matters handled reference to the basic rules within each state. An awareness contractually, problems arise in reaching agreement as to of the issues and applicable law may promote greater how liability will be allocated between the parties. In such cooperation and cost saving arrangements that also increase cases, the parties more often than not will move forward the potential for a successful defense of all involved. with the transaction, expecting to work things out later - if Whether a company is the designer, manufacturer, and when litigation rears its ugly head. Unfortunately, it is distributor, wholesaler, or retailer of a completed product or generally too late at that point as no one is willing to take on a component part, it will inevitably find itself the recipient of the prospect of a large adverse judgment alone. © April 2015 International Society of Primerus Law Firms, Grand Rapids, Michigan A Survey of the Law of Non-Contractual Indemnity and Contribution When there is no contract defining the respective rights The indemnity issues are different in cases where there and obligations between the various parties involved in a are additional defendants who are not involved with the products liability lawsuit, the lawyers must look to the law product aspect of the case. While there will generally be of the jurisdiction in which the case is pending to determine no potential for tendering one’s defense to such a party, what the possibilities are for liability shifting under that there may still be the potential for equitable indemnity or state’s statutory scheme and/or judicial decisions. It is contribution based on allocation of fault. This prospect important that an understanding of the applicable law be can work to the benefit or detriment of a company under developed early in the litigation. The law must be analyzed the circumstances of a particular case. Strategic decisions to ascertain: relating to trial and/or settlement can be affected by the • Is there a statutory basis for indemnity or for the potential for liability to a co-defendant or vice versa. The recovery of costs and fees? If so, does the company manner in which the law of offset applies to a settlement also have a basis for asserting a claim under the statute? complicates the analysis. Is the company subject to a statutory claim by another Even a cursory review of the variations in the laws of party? different states affecting a party’s potential liability exposure • Where there is no applicable statute addressing and related rights to indemnity or contribution should indemnity between parties, what is the case law that lead to the consideration of eliminating the undesirable defines the respective rights and obligations of the results through contractual arrangements. While it is not parties? the purpose of this survey of the law to provide a guide to negotiating and drafting agreements that allocate risk and • What are the risks/benefits of not accepting a tender responsibility, we believe a few general thoughts on the of defense? When does it make sense for the company subject are appropriate. to assume the defense of another party? A written agreement dealing with the obligations of • Should the defense of the company be tendered parties to a transaction in the event of litigation can go a to another party or a non-party? How can another long way toward eliminating the undesirable and inequitable party be convinced to take over the defense of the results if left to the statutory or case law in the jurisdiction company? where suit is filed. If a written agreement addresses the respective obligations between parties, that agreement will • How can the indemnity issues be best handled generally control the handling of issues related to the duty between the defendants without assisting the plaintiff of one party to provide a defense and/or indemnify the other. in establishing liability? However, standard terms and conditions in quotes, purchase The answers to these questions are often not clear. orders and similar documents are often conflicting and However, by giving these issues attention early in the the determination of which, if either, will control is rarely litigation, it is possible that parties can reach agreement as certain. An arms length negotiated agreement will to the handling of the defense of multiple parties in a more eliminate the problems posed by conflicting standard terms cost effective and cooperative manner. and provide more predictability. Of course, negotiating such an agreement can be a challenge in itself. © April 2015 International Society of Primerus Law Firms, Grand Rapids, Michigan A Survey of the Law of Non-Contractual Indemnity and Contribution There are a number of factors that will affect the Sometimes the party with the stronger bargaining position negotiations, not the least of which is the relative bargaining will overreach and find itself regretting its insistence on strengths of the parties. Other factors affecting negotiations provisions that seemed advantageous when negotiating the include the likelihood of claims and litigation involving agreement. These problems are magnified when there are the product(s), the potential severity of the injuries or claims directed against a specific component of a product damages related to the use of the product(s), the availability as well as claims directed at the product as a whole, such of alternative sources for the product(s), etc. There are a as a failure to warn. An agreement that requires the other number of issues to be addressed that can be stumbling party to provide a defense can result in loss of control over blocks to successfully negotiating an agreement. Such issues the defense strategy, positions taken inconsistent with the include, but are not limited to: defense of other cases involving the company, inability to • Conditions under which one party must indemnify control the settlement process, and an overall poor defense the other. of the product. • Circumstances under which one party must provide The members of the Primerus International Society a defense for the other. of Law Firms, Defense Institute, are not only uniquely qualified to defend products liability lawsuits, but are also • How recalls will be handled and who will pay the able to assist in the negotiation and drafting of agreements costs. addressing duties to defend and indemnify and related • Type of insurance coverage and limits. issues. Such agreements
Recommended publications
  • Arkansas Supreme Court

    Arkansas Supreme Court

    ARKANSAS SUPREME COURT State Contracts Over $50,000 Awarded To Minority Owned Businesses Fiscal Year 2020 None Employment Summary Male Female Total % White Employees 13 29 42 89 % Black Employees 2 1 3 6 % Other Racial Minorities 1 1 2 5 % Total Minorities 5 11 % Total Employees 47 100 % Publications A.C.A. 25-1-201 et seq. Required for Unbound Black & Cost of Unbound Statutory # of Reason(s) for Continued White Copies Copies Produced Name General Authorization Governor Copies Publication and Distribution Produced During During the Last Assembly the Last Two Years Two Years Arkansas Reports/ AR Appellate ACA 16-11-201; AR Supreme N N 0 Publication of the Supreme Court opinions 0 0.00 Reports Court Rule 5-2 ceased with volume 375 Ark/104 Ark. App. These opinions are now published online. IN RE: Arkansas Supreme Court and Court of Appeals Rule 5-2 (May 28, 2009) ARKANSAS SUPREME COURT - 0032 Page 1 Honorable John Dan Kemp, Chief Justice ARKANSAS SUPREME COURT - 0032 Honorable John Dan Kemp, Chief Justice Department Appropriation Summary Historical Data Agency Request and Executive Recommendation 2019-2020 2020-2021 2020-2021 2021-2022 2022-2023 Appropriation Actual Pos Budget Pos Authorized Pos Agency Pos Executive Pos Agency Pos Executive Pos 008 Supreme Court - Operations 5,155,467 48 6,013,886 48 5,329,935 48 5,958,765 48 0 0 5,959,010 48 0 0 C66 SC Bar of Arkansas-Cash 3,753,854 25 5,075,000 25 5,075,000 25 5,279,200 25 0 0 5,279,200 25 0 0 Total 8,909,321 73 11,088,886 73 10,404,935 73 11,237,965 73 0 0 11,238,210 73 0 0 Funding Sources % % % % % % State Central Services 4000035 5,155,467 57.9 6,013,886 54.2 5,958,765 53.0 0 0.0 5,959,010 53.0 0 0.0 Cash Fund 4000045 3,753,854 42.1 5,075,000 45.8 5,279,200 47.0 0 0.0 5,279,200 47.0 0 0.0 Total Funds 8,909,321 100.0 11,088,886 100.0 11,237,965 100.0 0 0.0 11,238,210 100.0 0 0.0 Excess Appropriation/(Funding) 0 0 0 0 0 0 Grand Total 8,909,321 11,088,886 11,237,965 0 11,238,210 0 FY21 Budget amount in 008 exceeds the authorized amount due to salary and matching rate adjustments during the 2019-2021 Biennium.
  • Honorable Paul Reiber, Chief Justice, Vermont Supreme Court From

    Honorable Paul Reiber, Chief Justice, Vermont Supreme Court From

    115 STATE STREET, PHONE: (802) 828-2228 MONTPELIER, VT 05633-5201 FAX: (802) 828-2424 STATE OF VERMONT SENATE CHAMBER MEMORANDUM To: Honorable Paul Reiber, Chief Justice, Vermont Supreme Court From: Senator c 'ard Sears, Chair, Senate Committee on Judiciary Senator el, Chair, Senate Committee on Appropriations Date: February 015 Subject: Judiciary Budget We recognize that the Judiciary, like the Legislature, is a separate branch of government and has an extremely difficult job balancing fiscal resources against its mission that has as its key elements: the provision of equal access to justice, protection of individual rights, and the resolution of legal disputes fairly and in a timely manner. We commend the Judiciary for its willingness to work with us to address the fiscal challenges that we have faced over the years. As you know we again face a serious fiscal challenge in the upcoming FY 2016 budget. With the revenue downgrade we are facing a total shortfall for FY 2016 of $112 million in the General Fund. This represents an 8% shortfall from the resources needed to fund current services. The Governor's fiscal year 2016 budget includes a savings target of $500,000 for Judicial operations. The budget also envisioned potential reductions in FY 2016 pay act funding and other personnel savings which could create additional pressures on the Judiciary budget and the criminal justice system generally. The Governor further proposed language in the Budget Adjustment bill for a plan to produce such savings to be submitted by prior to March 31, 2015. As was the case in the House, we have chosen not to include any specific language in the Budget Adjustment bill regarding FY 2016 reduction.
  • Supreme Court of Louisiana

    Supreme Court of Louisiana

    Supreme Court of Louisiana FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #050 FROM: CLERK OF SUPREME COURT OF LOUISIANA The Opinions handed down on the 18th day of October, 2017, are as follows: BY GUIDRY, J.: 2017-CC-0482 PHILIP SHELTON v. NANCY PAVON (Parish of Orleans) After reviewing the applicable law, we hold that La. Code Civ. Pro. art. 971(F)(1)(a), which states that “[a]ny written or oral statement or writing made before a legislative, executive, or judicial body” is an “[a]ct in furtherance of a person’s right of petition or free speech … in connection with a public issue,” must nonetheless satisfy the requirement of La. Code Civ. Pro. art. 971(A)(1), that such statements be made “in connection with a public issue….” We therefore conclude the court of appeal was correct in reversing the trial court’s ruling granting Dr. Shelton’s special motion to strike, and in awarding reasonable attorney fees and costs to Ms. Pavon as the prevailing party, to be determined by the trial court on remand. Accordingly, the judgment of the court of appeal is affirmed. AFFIRMED WEIMER, J., dissents and assigns reasons. CLARK, J., dissents for the reasons given by Justice Weimer. HUGHES, J., dissents with reasons. CRICHTON, J., additionally concurs and assigns reasons. 10/18/17 SUPREME COURT OF LOUISIANA No. 2017-CC-0482 PHILIP SHELTON VERSUS NANCY PAVON ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FOURTH CIRCUIT, PARISH OF ORLEANS GUIDRY, Justice We granted the writ application to determine whether the court of appeal erred in reversing the trial court’s ruling granting the plaintiff’s special motion to strike defendant’s reconventional demand for defamation, pursuant to La.
  • Analysis of Court Filing Fees

    Analysis of Court Filing Fees

    If you have issues viewing or accessing this file, please contact us at NCJRS.gov. PURPOSES AND USES OF FEES Survey and The use of filing fees in this country had it.. origin in the English tradition of Analysis of compensating court officials from fees charged to litigants.s Since state and local governments started paying the Court Filing Fees salaries of judges and court clerks, how­ ever, two other justifications for the By E. Keith Stott. Jr., lind Richard N. Ross use of filing fees have been emphasized. III late 1975 tile National Cel/ter sta.!! Although the extent of judicial par­ The first is that filing fees deter frivo­ prepared a study of court }fling fees for ticipation in shaping the social order lous litigation, thereby controlling court tlte Missouri o'{lice of State Courts Ad­ and resolving private disputes has caseloads. Recent research has shown, ministrator. The study. a part oJ' a greatly increased during the past few however, that filing fees do not deter larger project to determine tile extent decades, adequate financing of state litigation because they are only a small alld <tI.Tect of court costs on litigatioJl. court opel'ations has never become a part of the overall cost of litigation. produced some illterestillg alld us<;jitl reality. Judges and court administrators Other court costs and expenses related iI{/'ormatioll that otller courts have sillce have engaged in difficult and frequently to litigation have a more important im­ requestedfor similar studies or projects unsuccessful competitions in the budget pact on the decision to file a lawsuit.
  • Appellate Update January 2020

    Appellate Update January 2020

    APPELLATE LJPDATE PUBLISHED BY THE JANUARY 2O2O ADMINISTRATIVE OFFICE OF THE COURTS VOLUME 27, NO. 5 Appellate Update is a service provided by the Administrative Office of the Courts to assist in locating published decisions of the Arkansas Supreme Court and the Court of Appeals. It is.not an official publication of the Supreme Court or the Court of Appeals. It is not intended to be a complete summary of each case; rather, it highlights some of the issues in the case. A case of interest can be found in its entirety by searching this website: https ://opinions. arcourts. gov/ark/enlnav' do ANNOUNCEMENTS On December 19,2019, amendments to the Rule and Regulations governing Court Reporters were published for comment. The comment period expires on March 31,2020. CRIMINAL Harper v. State,2020 Ark. App, 4 [Ark. Code Ann. $ 16-39-1151 Appellant sought disclosure and review of notes taken by the prosecutor during an interview with the victim. After conducting an in camera review, the circuit court concluded that: (1) the prosecutor's notes were not a statement as defined by Arkansas Code Annotated $ 16-89-115; (2) the notes contained no information that probably would have changed the outcome of the trial; and (3) the nondisclosure of the notes is harmless beyond a reasonable doubt because the information in the notes was readily available through other discovery provided in the case by the State. Arkansas Code on direct Annotated $ 16-89-115(b) provides that after awitness called by the State has testified examination, the court on motion of the defendant shall order the State to produce any statement of the witness in the possession of the State that relates to the subject matter about which the -1- witness has testified.
  • 141097NCJRS.Pdf

    141097NCJRS.Pdf

    If you have issues viewing or accessing this file contact us at NCJRS.gov. .. ,. .... ... ... • ... 'r .. .., ~~ • -- .. -•• •... --• ""' - • .. .. .. ·r ,.. .. ~ .. ., J' -- ., I - - I . 4" '. • ~ ". ',.. • •~ ~ • ~ 'I -.,,- <.. • - • I. - • --"~ ,'pi.. alaska judicial council 1029 W. Third Avenue, Suite 201, Anchorage, Alaska 99501-1917 (907) 279-2526 FAX (907) 276-5046 EXECUTIVE DIRECTOR NON-ATIORNEY MEMBERS William T. Cotton Jim A. Arnesen David A. Dapcevich Leona Dkakok ATIORNEY MEMBERS Mark E. Ashburn Daniel L. Callahan Thomas G. Nave CHAIRMAN. EX OFFICIO Daniel A. Moore, Jr. Chief Justice Supreme Court Message From the Executive Director We are pleased to present the Alaska Judicial Council's Sixteenth Report to the Legislature and Supreme Court for the years 1991 and 1992. The Council reports biennially on its dual constitutional responsibilities of nominating candidates for judicial vacancies and of making reports and recommendations to the supreme court and legislature. The report also covers the statutory mandate to evaluate judges standing for retention and applicants for the Public Defender. This report includes a brief narrative section that summarizes Council activities during 1991 and 1992, and a series of appendices. The appendices include a current listing of statutory and constitutional law affecting the Judicial Council, a log of judicial applicants, nominees and appointees, a log of all sitting judges and their retention election dates, and summaries of Council procedures for judicial selection and retention evaluation. Summaries of the Council's major reports during 1991 and 1992 also are included as appendices. The Judicial Council welcomes your comments and questions about this report. Very truly yours, ~;('~ William T. Cotton Executive Director 141097 U.S. Department of Justice National Institute of Justice This document has been reproduced exactly as received from the person or organization originating it.
  • The 2021-2022 Guide to State Court Judicial Clerkship Procedures

    The 2021-2022 Guide to State Court Judicial Clerkship Procedures

    The 2021-2022 Guide to State Court Judicial Clerkship Procedures The Vermont Public Interest Action Project Office of Career Services Vermont Law School Copyright © 2021 Vermont Law School Acknowledgement The 2021-2022 Guide to State Court Judicial Clerkship Procedures represents the contributions of several individuals and we would like to take this opportunity to thank them for their ideas and energy. We would like to acknowledge and thank the state court administrators, clerks, and other personnel for continuing to provide the information necessary to compile this volume. Likewise, the assistance of career services offices in several jurisdictions is also very much appreciated. Lastly, thank you to Elijah Gleason in our office for gathering and updating the information in this year’s Guide. Quite simply, the 2021-2022 Guide exists because of their efforts, and we are very appreciative of their work on this project. We have made every effort to verify the information that is contained herein, but judges and courts can, and do, alter application deadlines and materials. As a result, if you have any questions about the information listed, please confirm it directly with the individual court involved. It is likely that additional changes will occur in the coming months, which we will monitor and update in the Guide accordingly. We believe The 2021-2022 Guide represents a necessary tool for both career services professionals and law students considering judicial clerkships. We hope that it will prove useful and encourage other efforts to share information of use to all of us in the law school career services community.
  • In the Supreme Court of Iowa

    In the Supreme Court of Iowa

    IN THE SUPREME COURT OF IOWA No. 18–1050 Filed June 14, 2019 ALEX WAYNE WESTRA, Appellant, vs. IOWA DEPARTMENT OF TRANSPORTATION, Appellee. Appeal from the Iowa District Court for Polk County, Arthur E. Gamble, Judge. A motorist appeals a district court ruling denying his petition for judicial review of an agency decision suspending his driver’s license for one year. AFFIRMED. Matthew T. Lindholm of Gourley, Rehkemper, & Lindholm, P.L.C., West Des Moines, for appellant. Thomas J. Miller, Attorney General, and Robin G. Formaker, Assistant Attorney General, for appellee. 2 MANSFIELD, Justice. This case began when a driver tried to reverse course. But it presents the question whether our court should reverse course. Specifically, should we overrule precedent and apply the exclusionary rule to driver’s license revocation proceedings when an Iowa statute dictates otherwise? In Westendorf v. Iowa Department of Transportation, 400 N.W.2d 553, 557 (Iowa 1987), superseded by statute as recognized by Brownsberger v. Department of Transportation, 460 N.W.2d 449, 450–51 (Iowa 1990), we declined to apply the exclusionary rule so long as the enumerated statutory conditions for license revocation were met. Later, the general assembly enacted a limited exception to Westendorf. See Iowa Code § 321J.13(6) (2017). This requires the Iowa Department of Transportation (DOT) to rescind revocation of a driver’s license if there has been a criminal prosecution for operating while intoxicated (OWI) and the criminal case determined that the peace officer did not have reasonable grounds to believe a violation of the OWI laws had occurred or that the chemical test was otherwise inadmissible or invalid.
  • 16-992 Pavan V. Smith (06/26/2017)

    16-992 Pavan V. Smith (06/26/2017)

    Cite as: 582 U. S. ____ (2017) 1 Per Curiam SUPREME COURT OF THE UNITED STATES MARISA N. PAVAN, ET AL. v. NATHANIEL SMITH ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF ARKANSAS No. 16–992. Decided June 26, 2017 PER CURIAM. As this Court explained in Obergefell v. Hodges, 576 U. S. ___ (2015), the Constitution entitles same-sex cou- ples to civil marriage “on the same terms and conditions as opposite-sex couples.” Id., at ___ (slip op., at 23). In the decision below, the Arkansas Supreme Court considered the effect of that holding on the State’s rules governing the issuance of birth certificates. When a married woman gives birth in Arkansas, state law generally requires the name of the mother’s male spouse to appear on the child’s birth certificate—regardless of his biological relationship to the child. According to the court below, however, Ar- kansas need not extend that rule to similarly situated same-sex couples: The State need not, in other words, issue birth certificates including the female spouses of women who give birth in the State. Because that differen- tial treatment infringes Obergefell’s commitment to pro- vide same-sex couples “the constellation of benefits that the States have linked to marriage,” id., at ___ (slip op., at 17), we reverse the state court’s judgment. The petitioners here are two married same-sex couples who conceived children through anonymous sperm dona- tion. Leigh and Jana Jacobs were married in Iowa in 2010, and Terrah and Marisa Pavan were married in New Hampshire in 2011.
  • William Czar Bradley, 1782-1857

    William Czar Bradley, 1782-1857

    PROCEEDINGS OF THE VERMONT HISTORICAL SOCIETY FOR THE YEARS 1926-1927-1928 Copyrighted b y The Vermont Hist o rical Society 1928 William Czar Bradley 1782-1867 .by Justice Frank L. Fish, of the Vermont Supreme Court. Address delivered before the Vermont Historical Society at . Windsor, Vt., July 7, 1927. ---- WILLIAM CZAR BRADLEY The w·e stminster massacre occurred March 13, 1775. ltJesulted in the end of colonial rule and the sway of the King in Vermont . In December, 1778, the-first Vermont court was held at Bennington. This court was organized under the constit utional authority which had its inception here 150 years ago. In May, 1779, the second session of the court was held at Westminster. It was l].eld in tl].e court house built under the authority of the King in 1772 and moistened by the blood of William French and Daniel Houghton, the first martyrs of the Revolution. Th ~ Judges were Moses Robinson, Chief, and John Fassett, Jr., and Thomas Chandler Jr. Esquires. It was a jury session and 36 respondents were in jail awaiting trial. They were among the foremost citizens of the county of Cumberland and their plight was due to their having taken sides with New York. Their offence was that they had taken by force from William MeWain, an officer of Vermont, t wo co·ws which he had seized and offered to sell as the property of one Clay and another Williams, in default of their refus­ ing to serve in the State militia. It was a ury session and the purpose of the State was to try speedily, and without failure to convict, the accused.
  • THE ALASKA SUPREME COURT, the UNITED STATES SUPREME COURT, and RETROACTIVITY Paul E.Mcgreal*

    THE ALASKA SUPREME COURT, the UNITED STATES SUPREME COURT, and RETROACTIVITY Paul E.Mcgreal*

    A TALE OF TWO COURTS: THE ALASKA SUPREME COURT, THE UNITED STATES SUPREME COURT, AND RETROACTIVITY Paul E.McGreal* SINTRODUCTION Whether out of homage to superior wisdom, judicial economy, desire for uniformity, or simple agreement, many state courts look to decisions of the United States Supreme Court for guidance on state constitutional issues or other issues where an analogy from federal law might be helpful. Many state supreme courts, such as the Alaska Supreme Court expressly reserve the power to interpret protections under their state constitutions more broadly than similar protections under the federal Constitution. At times, those courts that faithfully adhere to this republican spirit find sharp division within their ranks.2 Copyright © 1992 by Alaska Law Review * B.A., Williams College, 1989; I.D., Southern Methodist University School of Law, 1992. Law Clerk to the Honorable Warren W. Matthews, Alaska Supreme Court, 1992-93. 1. See Roberts v. State, 458 P.2d 340, 342 (Alaska 1969) ("We are not bound in expounding the Alaska Constitution's Declaration of Rights by the decisions of the United States Supreme Court, past or future, which expound identical or closely similar provisions of the United States Constitution."); Baker v. City of Fairbanks, 471 P.2d 386,402 (Alaska A.2d 793, 800 (N. 1990); the1970) highest ("We court need thenot he stand land."); by idly see andalso passively, State v. Hempele, waiting for576 constitutional direction from Statev. Boland, 800 P.2d 111 1114 319(Wash. S.E.2d 1990); 254, Pool 260 v. (N.C. Superior 1984). Court, 677 P.2d 261, 271 (Ariz.Professor 1984); Lawrence State v.
  • Key Acts and Cases for Alaska Tribal Court Jurisdiction

    Key Acts and Cases for Alaska Tribal Court Jurisdiction

    Key Acts and Cases for Alaska Tribal Court Jurisdiction Item Type Article Authors Fortson, Ryan Citation Fortson, Ryan. (2014). "Key Acts and Cases for Alaska Tribal Court Jurisdiction." Alaska Justice Forum 31(3–4): 12–13 (Fall 2014/Winter 2015). Publisher Justice Center, University of Alaska Anchorage Download date 01/10/2021 23:45:06 Link to Item http://hdl.handle.net/11122/6578 12 Alaska Justice Forum 31(3–4), Fall 2014/Winter 2015 Key Acts and Cases for Alaska Tribal Court Jurisdiction Ryan Fortson recognized tribe, that it had not attempted to (1998). This case addressed whether the Alaska Native Claims Settlement reassume jurisdiction under the procedures land selected by Alaska Native corporations Act (ANCSA) (1971). ANCSA resolved set out in ICWA, and that federal law granted through ANCSA constituted Indian country. the outstanding land claims of Alaska Na- Alaska exclusive jurisdiction over custody This status is important because tribes can tives through Congressional action. Prior matters involving Indian children. do things in Indian country normally as- to ANCSA, Alaska Natives held what is Native Village of Venetie I.R.A. Council sociated with sovereign governments, such known as aboriginal title to land in Alaska. v. State of Alaska, 944 F.2d 548 (9th Cir. as tax business conducted on tribal lands Through a series of United States Supreme 1991). In this case, two village councils and exercise criminal jurisdiction. Venetie Court cases dating back to 1823, aboriginal and two individuals who had adopted chil- had tried to collect taxes from the State title was held to mean that Native American dren through tribal courts sued the State and a private contractor for constructing tribes were domestic dependent nations for refusing to recognize the legal validity a school on ANCSA land to which it held that had a right to occupy lands they had of tribal court adoptions by denying the title.