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Collins v. Arctic Builders (5/1/98), 957 P 2d 980

     Notice:  This opinion is subject to correction before publication in
the Pacific Reporter.  Readers are requested to bring errors to the attention of the
Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone (907)
264-0608, fax (907) 264-0878.


WAYNE E. COLLINS,             )
                              )    Supreme Court No. S-7778
               Appellant,     )
                              )    Superior Court No.
          v.                  )    3AN-96-2559 CI
                              )    [No. 4979 - May 1, 1998]
               Appellees.     )

          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
                      Larry D. Card, Judge.

          Appearances:  Wayne E. Collins, pro se,
Anchorage.  Robert B. Mason, Mason & Griffin, Anchorage, for

          Before: Matthews, Chief Justice, Compton,
Eastaugh, Fabe, and Bryner, Justices.

          PER CURIAM.

          Wayne Collins appeals the superior court's dismissal of
his appeal of the Alaska Workers' Compensation Board's dismissal of
his application for an adjustment of claim.  We reverse.
          Collins suffers from asbestos-related health problems,
which he allegedly developed while working for Arctic Builders in
1963.  He was aware of this condition no later than November 3,
1990.  He notified his employer of this condition on May 21, 1993. 
          In February 1995 Collins applied to the Alaska Workers'
Compensation Board for an adjustment of claim.  This claim was
heard in January 1996.  On February 5 the Board concluded that
Collins's claim was barred and dismissed it.  It determined that
Collins had neither timely filed the report of illness/injury
required by AS 23.30.100(a) nor offered any evidence supporting an
exception to that requirement. 
          Collins filed a notice of appeal of the Board's decision
in the superior court on April 4, accompanied by a motion to accept
late filing. [Fn. 1]  The superior court concluded that Collins's
appeal, in addition to being untimely, "failed to comply with the
appellate rules."  Nonetheless, on April 30, the superior court
gave Collins fourteen days to correct the deficiencies in his
appeal documents as follows:
               Mr. Collins SHALL name the Workers'
Compensation Board as an [appellee] as it is their decision from
which he appeals.  He shall further comply with all requirements of
the Rules of Appellate Procedure (601 and 602) within that period
of time, or his case will be dismissed by this court pursuant to
[A]ppellate [R]ule 511.5.
          Fourteen days later, Collins filed all required pleadings
in the superior court, except a statement of points on appeal.  The
superior court found that he had not complied with Alaska Appellate
Rules 601 and 602.  It dismissed his case pursuant to Appellate
Rule 511.5 [Fn. 2] for want of prosecution and untimeliness, citing
to Powers v. Public Employees Retirement Board, 757 P.2d 65, 66-67
(Alaska 1988).  Collins appeals that dismissal.
          We review a superior court's decision to dismiss an
appeal under Appellate Rule 511.5 for abuse of discretion.  See
Geczy v. State, 924 P.2d 103, 104 (Alaska 1996).  We will find an
abuse of discretion when the decision of the lower court is
"'arbitrary, capricious, manifestly unreasonable, or . . . stem[s]
from an improper motive.'"  Sheehan v. University of Alaska, 700
P.2d 1295, 1297 (Alaska 1985) (quoting Tobeluk v. Lind, 589 P.2d
873, 878 (Alaska 1979)).

     Did the Superior Court Abuse Its Discretion in Dismissing
Collins's Appeal of the Workers' Compensation Board's Decision?

     A.   Arguments of the Parties
          The essence of Collins's argument is that he made a good-
faith attempt to comply with the superior court's April 30 order. 
He suggests that because he is a pro se litigant he should not be
held to as strict a standard as an attorney.  The superior court
should have notified him of the specific deficiency in his original
filing so that he could correct it.  Failing that, it should have
notified him of the specific deficiency in his refiling, giving him
another opportunity to supply the missing statement of points on
appeal rather than dismissing his case outright.
          Appellees reason thus:  The requirements of Appellate
Rule 602 are clear; Collins was warned that failure to meet all of
these requirements within the allotted time would result in the
dismissal of his appeal; Collins failed to meet all of these
requirements within the allotted time; it was therefore not an
abuse of discretion to dismiss Collins's appeal.
     B.   A Superior Court Must Inform Pro Se Litigants of Specific
Defects in Their Pleadings.

          Two cases are instructive: Breck v. Ulmer, 745 P.2d 66
(Alaska 1987), and Bauman v. State, Division of Family & Youth
Services, 768 P.2d 1097 (Alaska 1989).  In Breck, we explained that
"the pleadings of pro se litigants should be held to less stringent
standards than those of lawyers. . . . [W]e believe the trial judge
should inform a pro se litigant of the proper procedure for the
action he or she is obviously attempting to accomplish."  Breck,
745 P.2d at 75 (citations omitted).  In Bauman, we refused to
extend Breck "to require judges to warn pro se litigants on aspects
of procedure when the pro se litigant has failed to at least file
a defective pleading."  Bauman, 768 P.2d at 1099.  Our concern in
Bauman was that "[t]o require a judge to instruct a pro se litigant
as to each step in litigating a claim would compromise the court's
impartiality in deciding the case by forcing the judge to act as an
advocate for one side."  Id. at 1099. 
          In the instant case, Collins did attempt to comply with
Appellate Rules 601 and 602, unlike Bauman, who failed entirely to
file an opposition to a motion for summary judgment.  In light of
Breck, we conclude that the superior court must inform a pro se
litigant of the specific defects in his notice of appeal and give
him an opportunity to remedy those defects.  We conclude that
failure to do so is manifestly unreasonable and thus constitutes an
abuse of discretion.  While Appellate Rules 601 and 602 may be 
models of clarity to one schooled in the law, a pro se litigant
might not find them so.  We are not concerned that specificity in
pointing out the technical defects in pro se pleadings will
compromise the superior court's impartiality. 
     C.   The Case Cited by the Superior Court and the Cases Cited
by Appellees Are Distinguishable.  

          The superior court referred to Powers v. Public Employees
Retirement Board, 757 P.2d 65, 66-67 (Alaska 1988). Powers
attempted to file a notice of administrative appeal five days late.
See id. at 66-67.  This court upheld the superior court's dismissal
of Powers's appeal as untimely.  See id. at 67-68.  First, there is
no suggestion that Powers proceeded pro se.  Second, Collins,
unlike Powers, filed a meritorious motion to accept late filing. 
In the instant case, the superior court was sufficiently persuaded
by Collins's motion to accept late filing to give him the
opportunity to "correct the deficiencies in his appeals documents." 
Collins then attempted to file the required materials.  Powers is
not analogous.
          Appellees cite to Cowitz v. Alaska Workers' Compensation
Board, 721 P.2d 635 (Alaska 1986) and Geczy v. State, 924 P.2d 103
(Alaska 1996).  In Cowitz, the superior court dismissed an appeal
from a decision of the Workers' Compensation Board when the worker
in question was seventeen months late in filing an opening brief.
See Cowitz, 721 P.2d at 636.  We explained that "[r]eview of the
record discloses that Cowitz simply did not have a valid reason for
failing to file a brief for eighteen months."  Id. at 638.  This is
not analogous to the instant case -- Collins provided an apparently
persuasive argument for accepting his late filing.  His appeal was
dismissed for failure to comply with Appellate Rule 602.  Although
the order dismissing Collins's appeal states that it is dismissed
"for want of prosecution and as being untimely,"it is clear that
if Collins had fully complied with Appellate Rules 601 and 602,
this order would not have issued.  For purposes of this discussion
we view Collins's appeal as having been dismissed only for failure
to comply with Appellate Rules 601 and 602.
          In Geczy, as in Powers and Cowitz, the superior court
dismissed an appeal for failure to supply it with required
documents.  Geczy failed to transmit the record to the superior
court.  See Geczy, 924 P.2d at 103-04.  Geczy's failure is not
analogous to Collins's.  As discussed above, we recognize a
distinction between a pro se litigant who fails entirely to file
required materials and one who files defective materials.  See
Bauman, 768 P.2d at 1099.
          We REVERSE the order dismissing Collins's appeal and
REMAND this case to the superior court.  On remand the court should
give Collins a final opportunity to remedy the defects in his
notice of appeal, after notifying Collins of the specific
deficiencies in that notice.


Footnote 1:

     Collins affied that he had mistakenly filed a timely appeal
with the Board, rather than the superior court.  He appeared pro se, 
and claimed unfamiliarity with the court system.

Footnote 2:

     Appellate Rule 511.5 provides in part

          (a)  If an appellant . . . fails to comply
with these rules, the clerk shall notify the appellant . . . in
writing that the appeal will be dismissed for want of prosecution
unless the appellant remedies the default within 14 days after the
date of notification . . . .  If the appellant fails to comply
within the 14-day period, the clerk shall issue an order dismissing
the appeal for want of prosecution.