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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. or subject indices. In the Matter of Alaback and Hall (3/10/00) sp-5248

In the Matter of Alaback and Hall (3/10/00) sp-5248

     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.


             THE SUPREME COURT OF THE STATE OF ALASKA

In the Matter of the          )    Supreme Court No. S-8336
Dissolution of the Marriage   )    
of:                           )    Superior Court No.
                              )    1JU-91-1261 DR
PAUL BERNARD ALABACK and      )    
JUDITH KATHRYN HALL,          )    O P I N I O N
                              )
Husband and Wife.             )    [No. 5248 - March 10, 2000]
                              )                                                                  

          Appeal from the Superior Court of the State of
Alaska, First Judicial District, Juneau,
                     Thomas M. Jahnke, Judge.


          Appearances: Mary Alice McKeen, pro se,
Juneau.  Barbara T. Walker, pro se, Juneau.


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


          CARPENETI, Justice.
          

I.   INTRODUCTION

          This case presents a rather odd alignment of parties and
interests.  Perhaps oddest of all, in a case styled "In re Alaback
and Hall," is the absence of the father, Paul Alaback; the child,
S.A.; and the mother, Judith Hall, [Fn. 1] as litigants in the
instant action.  Instead, the only litigants here are Hall's former
attorney, Mary Alice McKeen, and S.A.'s former guardian ad litem
(GAL), Barbara Walker.
          The case began as a child custody dispute between Hall
and Alaback over S.A.  McKeen now appeals the superior court's
denial of her motion to unseal part of the record from that
proceeding and to lift a "gag" order on that same material. 
Because we find no impropriety in the superior court's action, we
affirm that decision.
II.  FACTS AND PROCEEDINGS

     A.   The Child Custody Proceeding
          A decree of dissolution ended Hall and Alaback's marriage
in 1991.  Pursuant to the agreement of the parties, the court
entered a child custody and support order granting joint custody. 
Almost a year later, Hall filed a motion to modify the custody
arrangement.  Alaback opposed the motion and moved for appointment
of a GAL.  The court appointed Walker to fill this role, charging
her with "represent[ing] the best interests of the parties' minor
child, [S.A.], in this action." 
          In the course of her duties as GAL, Walker met with S.A.
several times.  Walker brought a cassette recorder to the second of
these meetings, which took place on March 23, 1993.  At S.A.'s
request, at least part of their conversation during that meeting
was taped.  That tape and its contents form the bone of contention
between McKeen and Walker here.
          S.A. told Hall about the tape, and Hall (through her
counsel, McKeen) requested a copy of it from Walker.  McKeen made
this request first informally and then formally, via a request for
production.  Walker (then herself represented by a court-appointed
attorney, Patricia Collins) indicated her willingness to provide
McKeen with the tape, but only after she was assured that McKeen
would not turn over the tape to Hall. 
          Hall and Walker agreed on a stipulation to that effect. 
It provided, among other things, that Walker would provide the tape
to Collins, who would then redact irrelevant portions before making
the tape available to McKeen.  The stipulation further provided
that
               (2) [McKeen] will not disclose to Ms.
Hall the contents of the tape or the contents of notes concerning
Ms. Walker's discussions with [S.A.].  [McKeen] may discuss with
Ms. Hall [McKeen's] evaluation of these materials in so far as they
affect this case.  The only disclosure that may be made of the
contents of the tape . . . [is] to experts consulted in connection
with this case or if . . . the court permits or the parties agree
to disclosure different from [that specified above].

               (3) This stipulation is made without
prejudice to either the mother or the Guardian's [GAL] right to ask
the court to order or permit disclosure different from [that
specified above]. 

          McKeen listened to the tape the same day she (as Hall's
attorney) signed the stipulation, and she took notes on the tape's
contents.  Despite the provisions of the stipulation, however,
McKeen allowed Hall access to these materials during the ensuing
trial -- in her own words, she "inadvertently violated the
Stipulation and let [my] client read the GAL's notes of that
meeting."  Moreover, McKeen provided Hall a typed copy of these
notes after the trial had ended.  McKeen stated that she "believed
that the tape and her notes had become part of the public record of
the trial." 
          After the five-day trial, the court awarded legal and
physical custody to Alaback, with "liberal visitation" rights to
Hall.  This decision was not appealed, pursuant to the parties'
stipulation that Alaback would pay half of Hall's attorney's fees
if Hall would agree not to appeal.  Alaback's portion amounted to
just over $9,000.   
     B.   The Sealing and Disclosure Dispute
          The current dispute arose when, anticipating Walker's
request for payment of her GAL fees, Hall moved for an order that
she be relieved of her duty to pay her portion of the fees. [Fn. 2] 
In an affidavit attached to that motion, Hall referred to and
quoted from the tape of Walker's conversation with S.A.  She also
appended a copy of McKeen's typed notes to her affidavit. 
          After this motion was filed, Collins sent a letter to
McKeen stating that Collins viewed the fact that Hall had a copy of
the notes as a violation of the stipulation.  Hall then filed a
motion for "clarification of her obligations" under the
stipulation.  In her supporting memorandum, Hall argued that "the
court made the tape and counsel's handwritten notes of the tape
part of the public record and hence available to Ms. Hall or any
other interested member of the public."  Therefore, Hall asserted,
it was not a violation of the stipulation for McKeen to put the
notes "in a readable form for her client" by typing them up. 
          Superior Court Judge Thomas M. Jahnke disagreed with
Hall's assessment of the status of the notes.  The court ordered
that the tape and all notes based on the tape
          shall remain sealed in [McKeen's] files and
not shared with any other person, including a party.  Unless they
have previously been released by the clerk, the above-mentioned
items shall remain sealed in the court file and may not be released
to or viewed by a party or counsel.          
          Hall then filed another motion, which the superior court
treated as a motion for clarification and partial reconsideration. 
In that motion, Hall stated that, shortly after the trial, she
requested the tape from the courthouse clerk.  Hall claimed that
she was allowed to listen to the tape at that time and that she and
the public at large should have access to the tape.  She argued
that, far from being sealed, "the tape should be reviewed to
determine if ethical, reasonable, and objective interviewing
techniques were employed by the GAL."  Judge Jahnke denied this
motion as well, ordering that "[t]he tape and notes shall be
retained in the court file and sealed unless Mr. Alaback and Ms.
Walker consent in writing to their release and publication." 
          Three years later (and nearly four years after the
meeting between S.A. and Walker), McKeen, who had withdrawn as
Hall's attorney, filed a motion to unseal the material and to allow
disclosure of it.  This motion apparently was prompted by an
ongoing dispute between McKeen (and others) and Walker that
manifested itself in other cases.  Walker opposed the motion. 
Judge Jahnke denied the motion, stating that he could not
"determine the potential significance of the notes in a case
assigned to another judge . . . .  That significance, if any, is
best judged by the judicial officer presiding in the new case." 
McKeen appeals.
III. DISCUSSION
          McKeen argues that the superior court's denial of her
motion to unseal and to allow disclosure of the notes was improper. 
She asserts that Alaska's "open records" law and the freedom of
expression clauses of the United States and Alaska Constitutions
give her the right to access and disclose the contents of the
materials at issue. [Fn. 3] 
          In response, Walker argues that McKeen lacked standing to
file the motion to unseal the records and lift the gag order; and,
further, that McKeen lacks standing to prosecute this appeal. 
Walker also argues that McKeen's appeal is time-barred, because
Appellate Rule 204(a)(1) requires all appeals to be brought within
thirty days of the judgment.  Finally, Walker argues that the
stipulation in the original child custody dispute, which restricted
McKeen's ability to disclose the contents of the tapes, bars McKeen
from now seeking to disclose this material in a broader manner.
[Fn. 4] 
     A.   McKeen Has Standing to Challenge the Court's Orders. 

          Walker argues that McKeen lacks standing to seek to open
the records and lift the gag order.  This is so, Walker claims,
because McKeen was not a party to the original action.  While this
argument has superficial appeal, it is unavailing.
          Alaska grants standing to any person who can show an
"injury-in-fact." [Fn. 5]  The degree of injury need not be great
-- it must only amount to an "identifiable trifle." [Fn. 6]
          Here, McKeen asserts that the continued sealing of the
records and the gag order violates her constitutional rights.  Both
of the orders are specifically directed at McKeen -- she may
neither discuss the contents of the notes with anyone (besides
experts in the now-concluded child custody case) nor show the notes
in her file to anyone without the court's permission.
          As we have formulated the standing requirement elsewhere,
this assertion shows McKeen's "interest in the ultimate resolution
of [her] claims." [Fn. 7]  McKeen's freedom of expression rights
were "adversely impacted" by the orders, because the orders barred
her from disseminating the contents of S.A.'s interview with
Walker. [Fn. 8]  Thus, McKeen had -- and has -- standing under
Alaska law.
     B.   Rule 204(a) Does Not Bar McKeen's Appeal.
          Walker is correct that Appellate Rule 204(a)(1) requires
appeals to be filed "within 30 days from the date . . . of
distribution."  However, McKeen is not appealing the 1993 judgment
of the superior court regarding the child custody dispute, but
rather the court's denial of her motion to unseal the tape of
Walker's interviews and to allow the disclosure of its contents. 
That motion was initially denied on April 28, 1997.  McKeen filed
a motion for reconsideration on May 8, 1997.  The court apparently
did not rule on that motion; thus, as McKeen asserts, under Civil
Rule 77(k)(4), the motion is to be taken as denied as of June 9,
1997.  McKeen filed her notice of appeal on July 9, 1997, within
the thirty-day limit of Appellate Rule 204(a)(1).  Thus, this
appeal is timely.
     C.   We Need Not Determine Whether McKeen Is Bound by the
Stipulation Not to Reveal the Contents of the Interview with S.A.

          Walker argues that the stipulation in the original child
custody dispute, which restricted McKeen's ability to disclose the
contents of the tape, bars McKeen from now seeking to disclose this
material in a broader manner.  We need not address this argument,
because the court's sealing and gag orders independently apply to
McKeen.  Therefore, we need not determine whether she is bound by
the terms of the stipulation.
     D.   The Superior Court's Refusal to Lift the Gag Order and
Unseal the Records Was Proper.

          1.   Standard of review
          We have never articulated the standard of review to be
used when examining a superior court's denial of a motion to unseal
the records of a child custody proceeding and to lift a gag order
regarding such a proceeding.  However, AS 25.20.120 allows the
court to close the records of such proceedings "if it is in the
best interests of the child." [Fn. 9]  This "best interests of the
child" is the only limitation on the court's power to seal the
records and proceedings.  We have traditionally reviewed court
decisions in child custody matters to determine whether they were
clearly erroneous or constituted an abuse of discretion. [Fn. 10] 
Since such decisions often hinge on an analysis of the best
interests of the child, it is sensible to apply those standards
here as well.
          2.   The court's denial of McKeen's motion to unseal the
records was proper.

          The propriety of the original order sealing records of
Walker's interview with S.A. is not at issue in this appeal.  The
original order is many years old and McKeen did not appeal the
entry of that order.  Accordingly, it is no longer open to
challenge, except perhaps under Civil Rule 60(b).
          Indeed, McKeen did not purport to attack the original
order; rather, she simply moved to unseal the records.  Noting that
the original stipulation was without prejudice to a later request
for disclosure, McKeen stated, "Counsel now seeks disclosure of the
material . . . ."  Her motion claimed that there was no longer any
compelling reason to keep the original order in effect -- that the
supposedly confidential information had already been made public,
and that "the fact that [S.A.] is older makes . . . harm much more
unlikely."  Similarly, in appealing the superior court's denial of
her motion to unseal the records, McKeen questions what
justification there is for the "continuing limitation on the use of
these materials." 
          Because the trial court's original order is no longer
open to challenge, and since McKeen's motion to unseal the records
did not actually challenge it, Judge Jahnke was entitled to start
from the premise that the order had been validly entered.  Thus,
McKeen's motion imposed no duty on Walker to justify the original
order; to the contrary, it was McKeen who bore the burden of
convincing the court that good cause existed to grant her motion --
that she had a legitimate interest in disclosure and that an order
unsealing the files would have no adverse impact on S.A.'s welfare. 
          In denying McKeen's motions, Judge Jahnke effectively
resolved two distinct issues.  First, insofar as McKeen was merely
asserting a general public interest in access to public records,
the court implicitly ruled that she had failed to meet her burden
to prove that her interest in disclosure outweighed the potential
harm to S.A.  Second, insofar as McKeen asserted a more specific --
and perhaps more compelling -- need to use the records in
litigation against Walker, Judge Jahnke decided that her specific
need for disclosure could best be evaluated and weighed against
S.A.'s competing interest in confidentiality in the context of the
proposed litigation, once McKeen had filed an action and a judge
had been assigned to hear it.  Moreover, that Judge Jahnke did not
know how the materials might be used in other proceedings that were
not before him suggests to us an excellent reason to exercise his
discretion against disclosure: The court was left without a
complete picture of the effects of the action it was being
requested to take.  It was not an abuse of discretion for the court
to refuse to lift the stipulated confidentiality order at McKeen's
request alone.  For the reasons set out above, Judge Jahnke acted
well within his discretion in making this ruling.
          3.   The superior court's refusal to lift the gag order
was proper.

          While the superior court's refusal to lift the gag order
is a separate issue from its refusal to unseal the records, we
resolve these issues identically.  Because McKeen did not appeal
the 1993 custody judgment, she is not entitled to challenge the
validity of the original order.  Accordingly, Judge Jahnke was
entitled to begin with the proposition that the order was validly
entered and McKeen bore the burden of showing that lifting the gag
order would have no adverse impact on S.A.'s welfare.  Because the
general public interest in McKeen's being able to discuss these
matters openly was not sufficient to meet this burden, the trial
court acted within its discretion in denying the motion to lift the
gag order.
IV.  CONCLUSION
          The superior court was entitled to view the original
confidentiality orders as having been properly entered.  It was not
an abuse of discretion on the superior court's part to refuse to
lift them on McKeen's motion.  Therefore, we AFFIRM the superior
court's denial of McKeen's motion to unseal the records and to lift
the gag order concerning them. [Fn. 11]


                            FOOTNOTES


Footnote 1:

     Hall filed a "motion to join appeal" on January 22, 1999, over
a month after the case was argued.  This motion was denied as moot,
since Hall was a party to the action by virtue of Alaska Rule of
Appellate Procedure 204(g).  As the order further provided, if Hall
sought to bring substantive information before the court, it was
untimely.


Footnote 2:

     Hall and Alaback were each to pay one-half of Walker's GAL
fees pursuant to the order appointing Walker. 


Footnote 3:

     McKeen also argues in her reply brief that "a permanent
closure of these records would violate substantive due process and
would be a denial of procedural due process."  Points given only a
cursory treatment in the argument portion of a brief will not be
considered on appeal, even if developed in the reply brief.  See
Adamson v. University of Alaska, 819 P.2d 886, 889 n.3 (Alaska
1991) (citing State v. O'Neill Investigations, Inc., 609 P.2d 520,
528 (Alaska 1980); Fairview Dev., Inc. v. City of Fairbanks, 475
P.2d 35, 36 (Alaska 1970)).  For this reason we decline to address
these claims.  In any event, as discussed below, the records are
not "permanently" closed -- they may be opened if a judge in a
later proceeding sees fit to do so.  See infra note 11.


Footnote 4:

     Walker also requests fees and costs, pursuant to Appellate
Rule 510.  That rule, however, only allows assessment of such
sanctions when an appeal (1) delays the proceedings and (2) appears
to have been filed merely for the purpose of delay.  Walker, while
calling McKeen's appeal "frivolous," does not allege that McKeen's
appeal delayed the proceedings, nor that it was filed merely to
cause delay.  Thus, Walker is not entitled to fees or costs under
Appellate Rule 510.


Footnote 5:

     See Wagstaff v. Superior Court, 535 P.2d 1220, 1225 (Alaska
1975) (citing Sierra Club v. Morton, 405 U.S. 727, 734-35 (1972)).


Footnote 6:

     See id. at 1225 n.7 (quoting Kenneth Culp Davis, Standing:
Taxpayers and Others, 35 U. Chi. L. Rev. 601, 613 (1968)).


Footnote 7:

     Moore v. State, 553 P.2d 8, 25 (Alaska 1976).


Footnote 8:

     See Anchorage Sch. Dist. v. Murdock, 873 P.2d 1291, 1292
(Alaska 1994) (citing Municipality of Anchorage v. Leigh, 823 P.2d
1241, 1247 n.11 (Alaska 1992)).


Footnote 9:

     AS 25.20.120 provides:

          At any stage of a proceeding involving custody
of a child the court may, if it is in the best interests of the
child, close the proceeding to the public or order the court
records closed to the public temporarily or permanently.  The court
may modify or vacate an order under this section at any time.


Footnote 10:

     See, e.g., Gratrix v. Gratrix, 652 P.2d 76, 79-80 (Alaska
1982) ("We will reverse a trial court's resolution of custody
issues only if this court is convinced that the record shows an
abuse of discretion or if controlling factual findings are clearly
erroneous.").


Footnote 11:

     This decision does not necessarily mean that the sealing and
gag orders are in place in perpetuity.  Rather, we endorse Judge
Jahnke's wise approach to the "potential significance of the notes"
in future cases, outlined in his April 28, 1997 order.  That is, if
the notes are alleged to have probative value in another case, the
judge presiding there should decide whether or not to lift the
orders.            In the Supreme Court of the State of Alaska



In the Matter of the Dissolution
of the Marriage of              )
Paul Alaback and Judith Hall    )        Supreme Court No. S-08336
                                                )
                                )                 Order
                                )          Petition for Rehearing
Husband and Wife.,              )                     
                                )         Date of Order: 3/10/2000
Trial Court Case # 1JU-91-01261CI

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

     On consideration of the Petition for Rehearing, filed on 
September 29, 1999,

     It is Ordered:

     1.   The Petition for Rehearing is Granted.

     2.   Opinion No. 5172, issued on September 10, 1999, is Withdrawn.

     3.   Opinion No. 5248, is issued on this date in its place.
     
     Entered by direction of the court.

                                   Clerk of the Appellate Courts


                                                                                                         
                                   Marilyn May
cc:  Supreme Court Justices
     Judge Jahnke
     Trial Court Appeals Clerk/Juneau
     West Publishing
     Other Publishers

Distribution:  
 
     Mary Alice McKeen 
     Attorney at Law 
     P O  Box  22680 
     Juneau AK 99802-2680 
 
     Barbara Walker  
     417 Harris Street  
     Juneau AK 99801  
Judith Hall  
1669 Harbor Way  
Juneau AK 99801  
 

Paul Alaback  
831  East Beckwith  
Missoula MT 55801