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Phillip Chokwak v. Les Worley and Ron Worley (3/8/96), 912 P 2d 1248
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0607, fax (907) 276-5808.
THE SUPREME COURT OF THE STATE OF ALASKA
PHILLIP CHOKWAK, )
) Supreme Court No. S-6353
) Superior Court No.
v. ) 3AN-93-686 CI
LES WORLEY and RON WORLEY, ) O P I N I O N
Appellees. ) [No. 4323 - March 8, 1996]
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Dana Fabe, Judge.
Appearances: Michael W. Flanigan, Walther &
Flanigan, Anchorage, for Appellant. Paul W.
Waggoner, Law Offices of Paul Waggoner,
Anchorage, for Appellees.
Before: Moore, Chief Justice, Rabinowitz,
Matthews, Compton and Eastaugh, Justices.
I. FACTS AND PROCEEDINGS
Phillip Chokwak, a minor, became intoxicated at a party
hosted by Les and Ron Worley. The Worleys, ages 15 and 17, had
furnished a keg of beer and a punch drink mixed with grain
alcohol for their classmates at Wasilla High School.
Approximately seventy-five to a hundred people attended the
party. The Worleys did not limit the availability of alcohol to
any of their underage guests, and did not restrain their
intoxicated guests from driving. While driving from the party
Chokwak was in an automobile accident in which he suffered
permanent paralyzing injuries. He sued the Worleys for providing
intoxicating liquor to him. The Worleys moved for summary
judgment, claiming statutory immunity from civil liability under
AS 04.21.020. Their motion was granted and judgment was entered
in their favor.
Chokwak appeals. Two arguments are presented: first,
that AS 04.21.020 does not grant civil immunity to social hosts
who unlawfully provide liquor to minors; and second, that if the
statute does grant civil immunity to hosts who unlawfully furnish
liquor to minors, the statute so completely lacks rationality
that it is unconstitutional.
A. Does AS 04.21.020 Grant Civil Immunity to Social
Hosts Who Provide Liquor to Minors?
We turn first to the statutory question. AS 04.21.020
A person who provides alcoholic
beverages to another person may not be held
civilly liable for injuries resulting from
the intoxication of that person unless the
person who provides the alcoholic beverages
holds a license authorized under AS 04.11.080
- 04.11.220, or is an agent or employee of
such a licensee and
(1) the alcoholic beverages are provided
to a person under the age of 21 years in
violation of AS 04.16.051, unless the
licensee, agent, or employee secures in good
faith from the person a signed statement,
liquor identification card, or driver's
license meeting the requirements of AS
04.21.050(a) and (b), that indicates that the
person is 21 years of age or older; or
(2) the alcoholic beverages are provided
to a drunken person in violation of AS
Although the phrase "a person who provides alcoholic
beverages" is not limited to those who are licensed to provide
alcoholic beverages, Chokwak argues that it should be construed
to be so limited. He contends that the legislative history of
section .020 indicates that it was aimed only at licensees.
Further, he argues that reading the statute to apply to
nonlicensees who unlawfully furnish liquor to minors reaches an
absurd result which could not have been intended by the
legislature because it lacks any rational basis and is against
public policy. In reply, the Worleys argue that section .020
should be read literally and as so read it precludes a civil
action against a nonlicensee for furnishing liquor to minors;
that this court has in a number of cases indicated that section
.020 immunizes social hosts from civil liability; and that social
host immunity is a permissible legislative objective.
Chokwak's argument that the legislature intended
section .020 to apply only to licensees is supported by some of
the legislative history of the statute. Section .020 was enacted
in 1980 as part of an act which comprehensively revised the
Alaska Statutes pertaining to alcoholic beverages. Ch. 131, SLA
1980. Section .020 was a new provision. See ' 5, ch. 131, SLA
1980. The section-by-section analysis of the act prepared by the
Senate Judiciary Committee states the legislative intent of
section .020 as follows:
It is the intent of this section that a
licensee, his agent, or employee who lawfully
furnishes an alcoholic beverage to a person
who is 19 years of age or older, or a person
who is not drunken, may not be held civilly
liable for injuries resulting from the
consumption of said alcoholic beverage by the
above described persons or a third party.
Senate Journal Supp. No. 23 at 20, 1980 Senate Journal 643.
In interpreting a statute the objective is to determine
the intent of the legislature, with due regard for the meaning
that the language employed in the statute conveys to others.
Marlow v. Municipality of Anchorage, 889 P.2d 599, 602 (Alaska
1995). In the process of interpretation we have "rejected a
mechanical application of the plain meaning rule in favor of a
sliding scale approach." Peninsula Marketing Ass'n v. State, 817
P.2d 917, 922 (Alaska 1991). Under the approach we use, the
plainer the language of the statute, the more convincing contrary
legislative history must be. Marlow, 889 P.2d at 602.1
The phrase "a person who provides alcoholic beverages"
employed in section .020 is certainly broad enough to cover
social hosts and other nonlicensee providers as well as
licensees. On the other hand, the section-by-section analysis
specifically limits, as a matter of legislative intent, the
coverage of section .020 to licensees, indeed to licensees who
"lawfully furnish alcohol to others." If the section-by-section
analysis were the only legislative history available a close
question would be presented as to whether it is sufficiently
convincing to require that section .020 be interpreted to apply
only to licensees. However, there is other legislative history
which points to the conclusion that the legislature intended
section .020 to apply to nonlicensees and thus weakens the impact
of the section-by-section analysis.
The same legislature that passed the act containing
section .020 also passed another act which was in substance
identical to section .020. This act, House Committee Substitute
for Committee Substitute for Senate Bill (HCS CSSB) 115 (Rules)
(SB 115), would have added a new section, AS 09.65.097, to the
Alaska Statutes, part (a) of which provided:
(a) A person who provides intoxicating
liquor to an individual may not be held
civilly liable for injuries resulting from
the intoxication of that individual unless
(1) that person holds a license
authorized under AS 04.10.020 - 04.10.146, or
is an agent or employee of such a licensee;
(2) the intoxicating liquor is
provided to an individual under the age of 19
years in violation of AS 04.15.020(a),
04.15.060(d) or 04.15.080, unless the
licensee, employee, or agent secures in good
faith from the individual a signed statement,
liquor identification card, or driver's
license, meeting the requirements of AS
04.15.060(d), AS 18.65.310(a), or AS
04.15.065, respectively, and indicating that
the individual is 19 years of age or older;
(3) provides intoxicating liquor to
an intoxicated person in violation of AS
HCS CSSB 115 (Rules), 11th Leg. 2nd Sess. (May 15, 1980).
On June 20, 1980, the Governor vetoed this act. His
veto message is significant. It states:
I have vetoed HCS CSSB 115 (Rules) (relating
to the civil liability of providers of intox
icating liquor) inasmuch as the Department of
Law has advised me that among other undesir
able features it will significantly reduce
the liability of those illegally dispensing
alcohol as well as those dispensing it
1980 Senate Journal 1744. Ten days later the Governor signed FC
CSSB 239 which became chapter 131 SLA 1980. See 1980 Senate
Journal 1753. Section 5 of this act became AS 04.21.020, which,
as noted, contained language identical in substance to that of
the vetoed HCS CSSB 115 (Rules).2
The Governor's veto message shows that in the view of
the Governor and the Department of Law, SB 115 applied to
nonlicensees. SB 115 did not reduce the liability of licensees
dispensing alcohol illegally. However, if applied to
nonlicensees it did reduce their liability, for no longer would
they be civilly liable for giving liquor to an intoxicated person
or minor.3 Thus the veto message statement that SB 115 would
significantly reduce the liability of those dispensing alcohol
illegally only has meaning if the act applied to nonlicensees.
There is evidence that the legislature believed that SB
115 applied to nonlicensees. As originally introduced by Senator
Ziegler, immunity for social hosts was its sole purpose.4 The
bill went through various metamorphoses. When it arrived at the
House Rules Committee it provided in relevant part:
* Sec. 2. AS 09.65 is amended by adding
a new section to read:
Sec. 09.65.097. LIMITATIONS
ON THE CIVIL LIABILITY OF LAWFUL
BEVERAGES PROVIDERS. (a) A person
who provides an intoxicating liquor
to an individual may not be held
civilly liable for injuries result
ing from the intoxication of that
individual unless the intoxicating
liquor is furnished to that indivi
dual in violation of a law prohibit
ing furnishing intoxicating liquor
to a minor or an intoxicated
HCS CSSB 115 (Finance), 11th Leg., 1st Sess. (Apr. 29, 1979).
Representative Cotten of the House Rules Committee
wrote a memo soliciting comments on a proposed substitute bill
which would clearly be limited only to licensees.5 Senator
Ziegler responded, voicing no objection to the proposal, but
stating a preference for social host immunity:
What you propose to do to good old SB 115
meets with my approbation.
I only wish you could carry it one step
further and provide protection for non-
commercial purveyors like you and me when we
pour in our homes.
However, protecting the owner/operator is a
step in the right direction.
Letter from Senator Robert H. Ziegler, Sr., to Representative
Samuel R. Cotten (March 10, 1980) (available in Senate Judiciary
Committee files). Subsequently, the proposed substitute bill
which applied solely to licensees referred to by Rep. Cotten was
not adopted. Instead, the final version of SB 115 as passed by
the legislature applied to "a person who provides."
This history tends to indicate that SB 115 as passed by
the legislature was not meant to be limited to licensees. As
section 5 (which became ' .020) of SB 239 is nearly identical to
SB 115, it is logical to believe that the legislature acted with
a similar intent regarding that section.
The legislative history described above provides some
evidence that the statement of legislative intent concerning
section .020 in the section-by-section analysis is not fully
inclusive. Because of this we do not find the section-by-section
analysis to be sufficiently strong legislative history to require
that the literal language of section .020 be narrowed by
interpretation to apply only to licensees.
Chokwak's second statutory argument is, in essence, a
harmonization argument. Relying primarily on Haakanson v.
Wakefield Seafoods, Inc., 600 P.2d 1087 (Alaska 1979), he argues
that when a statute that bars a cause of action conflicts with
the intent of another statute, the two should be read together in
a way that preserves the intent of the second statute. In
Haakanson, this court applied Alaska's general tolling statute
for minors to an unmodified two-year limit on filing wrongful
death claims in order to preserve the public policy that favors
safeguarding the interests of minors. Id. at 1090. Chokwak
argues that the court should similarly read AS 04.21.020 in light
of the criminal prohibition on furnishing alcohol to minors in AS
04.16.051(a).6 Thus, in order to preserve the public policy of
protecting minors from the deleterious effects of alcohol, we
should construe AS 04.21.020(a) not to apply to nonlicensees who
furnish liquor to minors.
Chokwak's argument assumes that AS 04.16.051(a)
provides by implication a private cause of action for civil
damages against a social host who illegally provides alcohol to
minors. It may fairly be argued that a line of cases dealing
with the statutory predecessors to the 1980 revisions so held.7
Chokwak's argument fails because a cause of action "implied"from
a criminal statute generally cannot be harmonized with a later
statute expressly abrogating civil liability. Civil remedies
based on criminal statutes are not "implied"in the usual sense
of that word. The legislature may not in fact have intended a
civil action to flow from a given criminal statute, yet the civil
action is permitted because the courts believe that it is
consistent with the statute and furthers the policy which
underlies the statute.8 Where, as here, there is express
language and an apparent legislative intent to grant broad
immunity from civil liability to those who provide alcohol to
others, judicially construing a criminal statute to carry with it
a civil remedy in conflict with the rule of immunity would be
Chokwak contends a literal reading of section .020 may
immunize outrageous conduct in ways that render the statute
without any rational basis. He hypothesizes scenarios in which
the statute might shield, for example, illegal unlicensed
vendors, fraternities which haze initiates, and hosts of high
school drinking parties. By reading AS 04.21.020 to apply only
to the civil liability of licensees, he argues, the court could
avoid such "absurd"results.
As difficult as it is to defend a policy specifically
immunizing those who unlawfully furnish liquor to minors from
civil liability, we agree with the Worleys that a policy
immunizing social hosts in general from liability for injuries
caused by intoxicated persons to whom they have served liquor is
not indefensible. The legislature could regard a rule requiring
a host to closely monitor his or her guests as placing an
unwarranted pall on ordinary social hospitality. The legislature
could also wish to encourage individuals to assume responsibility
for their own actions when consuming alcohol. The "absurdities"
that Chokwak suggests result not from construing AS 04.21.020 to
apply to social hosts, but from failing to carve out an exception
for furnishing liquor to minors. Given the plain language of the
statute and the absence of convincing contrary legislative
history, we cannot by statutory interpretation construe section
.020 to be inapplicable to nonlicensees who illegally furnish
liquor to minors.
B. Is AS 04.21.020 Unconstitutional?
Chokwak makes both equal protection9 and due process10
arguments in support of his claim that AS 04.21.020 is unconstitu
tional insofar as it immunizes nonlicensees who furnish alcohol
to minors. Both arguments depend on whether the rule of immunity
is lacking in rationality.
This court has observed that the due process clause of
the state constitution requires that legislation be "at least
minimally rational." Gonzales v. Safeway Stores, Inc., 882 P.2d
389, 397 (Alaska 1994). "If any conceivable legitimate public
policy for the enactment is either apparent or offered," the
enactment will survive due process scrutiny so long as the
factual basis for the justification is not disproved. Id. at 397-
398 (quoting Keyes v. Humana Hospital Alaska, Inc., 750 P.2d 343,
351-52 (Alaska 1988)). Similarly, this court's equal protection
analysis under the Alaska Constitution for cases such as the
present, which receive review under the "relaxed scrutiny test,"
involves an inquiry as to whether a questioned classification has
a legitimate governmental purpose and whether there is a fair and
"substantial relationship"between the act and the reason. Id.
at 396 (citing State, Dep't of Revenue v. Cosio, 858 P.2d 621,
629 (Alaska 1993)).
It is our view that section .020 is not so completely
lacking in rationality or legitimacy of purpose as to be
unconstitutional. As noted, immunizing social hosts from
liability caused by their guests' conduct can rationally be based
on a view that it is an undesirable interference with normal
hospitality to require a social host to monitor guests' alcohol
consumption. Further, the primary actor responsible for harm
caused by a drunken person is the drunken person. This was the
basis for the "historic common law immunity"of those who furnish
liquor to others. Gonzales, 882 P.3d at 397. That common law
immunity has been replaced in some circumstances through dram
shop legislation shifting partial responsibility to the licensed
server of alcohol. Retaining this immunity in any case where
liquor is unlawfully furnished to minors is questionable and
difficult to defend. Still, the legislative desire not to turn
social hosts into the policemen of their guests and a recognition
of the ultimate personal responsibility of all those who consume
alcoholic beverages, including minors, suffice, in our view, to
afford the requisite level of minimal rationality and legitimacy
of purpose to section .020.
For the above reasons, we conclude that AS 04.21.020
grants civil immunity to social hosts who unlawfully provide
liquor to minors and that this grant of immunity is not
unconstitutional. The judgment is therefore AFFIRMED.
1 Our discussion in State v. Alex, 646 P.2d 203, 209 n.4
(Alaska 1982), provides a fuller explanation for the method we
The true issue in interpreting enacted
law is the conflict between the meaning the
enacting body intended and the meaning
conveyed to others. 2A Sutherland, Statutory
Construction ' 48.02, at 18-5 (4th ed. 1973).
The conflict is between what the sender meant
and what the receiver understands. Id. '
45.08, at 22. The "plain meaning"rule has
its basis in this conflict. Obviously, there
are elements of unfairness where legislative
intent is used to vary the apparent meaning
of statutory words. Id. ' 48.02, at 185-86.
This has led some members of the judiciary to
reject completely the consideration of
legislative intent. Justice Holmes once
remarked that "we do not inquire what the
legislature meant; we ask only what the
statute means." Id. ' 45.07, at 20. On the
other hand, most decisions speak in terms of
legislative intent as if nothing else
mattered in interpretation. Id.
Neither extreme expressed above provides
a realistic and workable approach to the
reconciliation of the intent and meaning
approaches to the interpretation of enacted
law. Part of the problem stems from
ambiguity being a relative concept. Words
have no intrinsic meaning; what is clear to
one person is ambiguous and obscure to
another. Id. ' 45.02, at 4-5. As one court
stated: "We think the statute is plain on its
face, but since words are necessarily inexact
and ambiguity is a relative concept, we now
turn to the legislative history, mindful that
the plainer the language, the more convincing
contrary legislative history must be."
United States v. United States Steel Corp.,
482 F.2d 439, 444 (7th Cir.), cert. denied
414 U.S. 909, 94 S.Ct. 229, 38 L.Ed.2d 147
(1973). In our recent decision of State v.
City of Haines, 627 P.2d 1047, 1049 n.6
(Alaska 1981), we interpreted North Slope
[Borough v. Sohio Petroleum Corp., 585 P.2d
534, 540 n.7 (Alaska 1978)] as having adopted
just such a sliding scale approach as
articulated in United States Steel.
2 Section 13 of FC CSSB 239 repealed AS 09.65.097, added
by HCS CSSB 115 (Rules), contingent upon the latter taking
effect. ' 17, FC CSSB 239. As 115 did not take effect because
of the Governor's veto, neither did section 13. The legislative
journals do not indicate the Governor's reasons for signing a
bill into law with language nearly identical to that so recently
vetoed. We will not speculate on his reasons for doing so.
3 Although this court had not ruled as of 1980 that one
who provided liquor unlawfully could be civilly liable for
injuries so caused, the United States District Court for the
District of Alaska had so ruled, applying Alaska law, Vance v.
United States, 355 F. Supp. 756 (D. Alaska 1973), and the Alaska
Attorney General correctly opined that this court would so rule.
Op. Att'y Gen., 4/2/79, J-66-569-79. We did so in Nazareno v.
Urie, 638 P.2d 671 (Alaska 1981).
4 Senate Bill 115 as introduced by Senator Ziegler on
February 7, 1979, provided:
For an Act entitled: "An Act relating
to the civil liability of gratuitous
servers of alcoholic beverages."
BE IT ENACTED BY THE LEGISLATURE OF THE STATE
*Section 1. The legislature declares
that the gratuitous social furnishing of
alcoholic beverages to an individual may not
be held to be the proximate cause of injuries
sustained by that individual or inflicted by
that individual on a third party.
* Sec. 2. AS 09.65 is amended by adding
a new section to read:
Sec. 09.65.097. LIMITATIONS ON THE
CIVIL LIABILITY OF GRATUITOUS BEVERAGE
SERVERS. (a) A person who gratuitously
furnishes an alcoholic beverage to an
individual may not be held civilly
liable for injuries resulting from the
intoxication of that individual.
(b) The protections of this section
do not apply to a person licensed under
the provisions of AS 04, or to an
employee or agent of a person licensed
under the provisions of AS 04, who
gratuitously furnishes an alcoholic
beverage on a premises licensed under AS
SB 115, 11th Leg. 1st Sess. (Feb. 7, 1979).
5 The memo stated:
The Rules Committee is considering a
committee substitute for HCS CSSB 115. I
would appreciate your comments on it. The
following is the proposed change:
Sec. LIMITATION ON CIVIL
LIABILITY. A licensee, or the
employee or agent of a licensee,
who furnishes an alcoholic beverage
to an individual on premises
licensed under this title may not
be held civilly liable for injuries
resulting from the intoxication of
that individual unless the furnish
ing of alcohol beverages occurred
in violation of AS 04.15.020(a) and
(d), 04.15.060(e), or 04.15.080.
Memo from Representative Samuel R. Cotten to Representative
Buchholdt, et al. (March 6, 1980) (available in Senate Judiciary
6 AS 04.16.051(a) provides: "A person may not furnish or
deliver an alcoholic beverage to a person under the age of 21
years." AS 04.16.180(a) makes violation a class A misdemeanor.
7 See Alesna v. LeGrue, 614 P.2d 1387 (Alaska 1980)
(allowing private right of action against liquor licensee for
statutory violations, noting that "[m]uch of Alaska's crime and
physical injury to persons can be traced to alcohol abuse");
Nazareno v. Urie, 638 P.2d 671, 674-75 (Alaska 1981) (recognizing
general common law duty of care for vendors, holding that
violation of statute prohibiting provision of alcohol to minor or
intoxicated person constituted negligence per se for vendor);
Morris v. Farley Enterprises, Inc., 661 P.2d 167 (Alaska 1983)
(applying negligence per se doctrine to vendor who sold alcohol
to minor in violation of statute).
8 See W. Page Keeton, et al., Prosser and Keeton on the
Law of Torts ' 36, at 220-22 (5th ed. 1984) (footnotes omitted):
Many courts have, however, purported to
"find" in the statute a supposed "implied,"
"constructive," or "presumed" intent to
provide for tort liability. . . . In the
ordinary case inquiries into legislative
intent are pure fiction, concocted for the
purpose. The obvious conclusion must usually
be that when the legislators said nothing
about it, they either did not have the civil
suit in mind at all, or deliberately omitted
to provide for it. . . .
Perhaps the most satisfactory
explanation is that the courts are seeking,
by something in the nature of judicial
legislation, to further the ultimate policy
for the protection of individuals which they
find underlying the statute, and which they
believe the legislature must have had in
mind. The statutory standard of conduct is
simply adopted voluntarily, out of deference
and respect for the legislature.
9 Article I, section 1 of the Alaska Constitution
dedicates the constitution to the principles that "all persons
are equal and entitled to equal rights, opportunities, and
protection under the law; and that all persons have corresponding
obligations to the people and to the State."
10 The first sentence of article I, section 7 of the
Alaska Constitution provides: "No person shall be deprived of
life, liberty, or property, without due process of law."