THE YEAR IN REVIEW 2018 SELECTED CASES FROM THE ALASKA SUPREME COURT AND THE ALASKA COURT OF APPEALS Introduction .....................................................................................................................................1 Administrative Law .........................................................................................................................2 Business Law ...................................................................................................................................7 Civil Procedure ................................................................................................................................9 Constitutional Law ........................................................................................................................14 Criminal Law .................................................................................................................................18 Criminal Procedure ........................................................................................................................21 Election Law ..................................................................................................................................37 Employment Law ..........................................................................................................................40 Environmental Law .......................................................................................................................44 Evidence Law ................................................................................................................................45 Family Law ....................................................................................................................................46 Health Law ....................................................................................................................................63 Insurance Law ...............................................................................................................................68 Legal Ethics ...................................................................................................................................70 Property Law .................................................................................................................................72 Tort Law ........................................................................................................................................75 Trust & Estates Law ......................................................................................................................78 INTRODUCTION The Alaska Law Review’s Year in Review is a collection of brief summaries of selected state and federal appellate cases concerning Alaska law. They are neither comprehensive in breadth, as several cases are omitted, nor in depth, as many issues within individual cases are omitted. Attorneys should not rely on these summaries as an authoritative guide; rather, they are intended to alert the Alaska legal community to judicial decisions from the previous year. The summaries are grouped by subject matter. Within each subject, the summaries are organized alphabetically. 1 ADMINISTRATIVE LAW Alaska Public Defender Agency v. Superior Court In Alaska Public Defender Agency v. Superior Court,1 the court of appeals held the Public Defender Agency or the Office of Public Advocacy must pay for an indigent defendant’s travel to the site of their trial, including the expenses of a parent accompanying a minor who is unable to travel alone, if the defendant is (1) not in custody and (2) unable to afford transportation to trial. J.B., a minor defendant represented by the Public Defender Agency, lives in Marshall and lacked the funds to travel with a parent to Bethel to appear at his trial. The superior court ordered the Public Defender Agency to pay for J.B. and his parent’s travel. The Agency appealed, arguing that either the Division of Juvenile Justice or the Court System should be responsible those expenses. The court of appeals affirmed the superior court’s order, reasoning that the case presented a question of administration best decided by deferring substantially to the state agencies responsible for administering the Public Defender Agency’s authorizing statute. The court referenced two Alaska Attorney General opinions issued in 1977 and 1978 respectively, declaring that the Public Defender Agency is responsible for the transportation costs of indigent defendants, including juveniles. The court of appeals reasoned that these opinions supported the Division of Juvenile Justice’s argument that travel expenses are a necessary “service” or “facility” of representation, required to be paid by the Public Defender Agency according to its authorizing statute. The court also relied on a Department of Administration regulation that the court interpreted as accepting the Attorney General’s opinion. Affirming the lower court’s decision, the court of appeals held that the Public Defender Agency must pay the transportation expenses of an indigent defendant, not in custody, who cannot afford to travel to their trial. The Agency must also pay for the expenses of a parent accompanying a minor defendant who cannot travel alone. Corkery v. Municipality of Anchorage In Corkery v. Municipality of Anchorage,2 the supreme court held that section 21.15.010 of the Anchorage Municipality Code (AMC) requires property owners to substantially satisfy each one of its seven standards to obtain a zoning variance. In 1965, the Corkerys’ lot was zoned so that, at maximum, 30% of the surface could be covered by a structure. However, in 1983 a prior owner expanded the house beyond this limit without a variance. In 2013, when rot was found in a wall, the Corkerys applied for a permit to rebuild that section of the home. The Municipality issued a permit conditioned on the Corkerys first obtaining a zoning variance for the exceeded limit. However, the zoning board denied the Corkerys’ application for a variance because it found three of seven requirements for a variance were not met. On appeal the Corkery’s argued that the code only required applicants “substantially” meet the seven criteria as a whole, and by meeting four of them they had done so. The Supreme Court disagreed. The court reasoned that though the code’s requirement that an application “substantially meet[] the . standards” could be read as the Corkerys argued, it was more natural to read it to require applicants substantially meet each of the seven standards individually. The court explained that this reading was supported by the individual listing of each factor, that two of them operated interdependently, and that a separate portion of the municipal code (which should be interpreted to create a harmonious whole) implied that in reviewing an application the board must find each of the seven criteria to be substantially satisfied. 1 413 P.3d 1221 (Alaska Ct. App. 2018). 2 426 P.3d 1078 (Alaska 2018). 2 The court concluded that the word “substantially” was not made superfluous by this interpretation as it meant applicants need not satisfy each factor in full. Affirming the lower court’s decision, the supreme court held that section 21.15.010 of the AMC requires property owners to substantially satisfy each one of its seven standards to obtain a zoning variance. Eberhart v. Alaska Pub. Offices Comm’n In Eberhart v. Alaska Pub. Offices Comm’n,3 the Supreme Court of Alaska held that Section 15.13.145 of the Alaska Statutes prohibits the use of both a public entity’s cash and its non- monetary resources for the purpose of influencing a state or municipal election of a state or municipal candidate. AS 15.13.145(a)(4) prohibits elected officials from using “money held by the entity [they work for] to influence the outcome of the election of a candidate to a state or municipal office.” Eberhart allegedly used his city email address during his mayoral campaign to email the city clerk to request all of the ordinances and resolutions that he and his opponent had sponsored. APOC opened an investigation and concluded that most of Eberhart’s emails were permissible under AS 15.13.145; however, it identified Eberhart’s email exchange with the clerk as a possible violation. APOC imposed a $37.50 fine because the cost of sending the emails to the clerk was de minimus and did not cause significant public harm; Eberhart appealed. The Supreme Court of Alaska found that the phrase “to influence the outcome of the election” does not require proof of actual influence as the word “to” can be understood to mean “for the purpose of.” Further, the court found that it was reasonable for APOC to interpret the term “money” to include property and assets including the city’s email system. The court explained that it was unlikely that the legislature intended to ban public cash from being used to influence a candidate while allowing public non-monetary resources to be used for the same purpose. Affirming the superior court’s decision, the Supreme Court of Alaska held that that AS 15.13.145 prohibits the use of both a public entity’s cash and its non-monetary resources for the purpose of influencing the outcome of the election of a state or municipal candidate. Griswold v. Homer City Council In Griswold v. Homer City Council,4 the Supreme Court of Alaska held that the attorney-client and work-product privileges are state law exceptions to section 40.25.120 of the Alaska Statutes