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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Anderson v. State (10/16/2003) sp-5745

Anderson v. State (10/16/2003) sp-5745

     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,


SUSAN D. ANDERSON,                 )
                                     )   Supreme  Court  Nos.  S-
          Appellant/Cross-Appellee,     )
                                   )    Superior Court No.
     v.                            )    3AN-98-10450 CI
STATE OF ALASKA ex rel.            )    O P I N I O N
and CARL MERCULIEF,                )
           Appellee/Cross-Appellant.     )    [No. 5745 - October
16, 2003 ]

          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Peter A. Michalski, Judge.

          Appearances:   David Karl Gross,  Timothy  J.
          Petumenos, Birch, Horton, Bittner  &  Cherot,
          Anchorage,    for   Appellant/Cross-Appellee.
          Gary  M. Guarino, Assistant Attorney General,
          Anchorage,   Bruce   M.   Botelho,   Attorney
          General,    Juneau,    for    Appellee/Cross-

          Before:   Matthews,  Eastaugh,  Bryner,   and
          Carpeneti,  Justices.  [Fabe, Chief  Justice,
          not participating.]

          PER CURIAM
          MATTHEWS, Justice, with whom EASTAUGH, Justice,  joins,
          concurring and dissenting.
          BRYNER,  Justice, with whom CARPENETI, Justice,  joins,
          concurring and dissenting.


          A jury awarded Susan Anderson compensatory and punitive

damages  against  Central Bering Sea Fishermen's Association  and

its  president,  Carl  Merculief, based  on  claims  of  wrongful

discharge and defamation.  In an earlier appeal we held that part

of  the  compensatory award was excessive, but we upheld punitive

damages  awards of $400,000 against the association and  $200,000

against  Merculief.1   The present appeal  concerns  the  state's

claim to half of the punitive damages under AS 09.17.020(j).2

          After the court entered judgment in her favor, Anderson

filed  a  motion  asking  the court to  declare  AS  09.17.020(j)

unconstitutional.  She argued that the statute violated  the  due

process,  takings,  and equal protection clauses  of  the  United

States and the Alaska Constitutions.  The state intervened,  made

a  motion  asserting  its statutory right  to  fifty  percent  of

punitive  damages, and opposed Anderson's motion.   The  superior

court  denied Anderson's motion and granted the state's,  finding

AS 09.17.020(j) to be constitutional.

           In upholding the statute, the superior court issued an

opinion  holding that Anderson had no constitutionally  protected

"property  interest" in the whole award of punitive  damages  and

that the allocation of punitive damages to the state thus did not

constitute a taking or violate Anderson's rights to due  process.

The  court  also  rejected  Anderson's  equal  protection  claim,

finding  that  the statute affected only economic  interests  and

bore a fair and substantial relationship to legitimate government


           The  court ordered Anderson to submit an amended final

judgment  that  granted  the  state  fifty  percent  of  punitive

damages.   At this point a dispute arose as to the interpretation

of   AS   09.60.080.   That  section  provides  that   contingent

attorney's fees shall be "calculated" before the state's  portion

of  punitive  damages has been deducted from the total  award  of

damages.3  The state contended that this section only governs the

calculation  of the plaintiff's attorney's fee and  that  it  was

entitled  to  fifty percent of the punitive damages award  before

fees are deducted.  The superior court rejected this argument.

            The   state   filed  a  motion  for  reconsideration,

contending  that  at  least it should  be  allowed  to  share  in

attorney's  fees  that had been awarded to Anderson  under  Civil

Rule  68.  The superior court summarily denied the state's motion

for  reconsideration, effectively ruling that the state  was  not

entitled to any of the fees awarded to Anderson.


          The constitutionality of AS 09.17.020(j) and the proper

interpretation  of AS 09.60.080 are issues of  law.4   We  review

these  issues  de novo,5 adopting the rule of law  that  is  most

persuasive in light of precedent, policy, and reason.6


          There are three issues presented in this case:

           1.    Is  AS  09.17.020(j), which  allocates  half  of

punitive damage awards to the state, constitutional as applied in

this case?

           2.   Under AS 09.60.080 should a portion of contingent

attorney's  fees incurred by a plaintiff in obtaining a  punitive

damage award be deducted pro rata from the state's portion of the


            3.     Where  the  plaintiff  has  received  enhanced

attorney's fees under Alaska Civil Rule 68, should these fees  be

taken  into  account  in calculating the amount  of  fees  to  be

deducted pro rata from the state's portion of the punitive damage


           The  trial court gave affirmative answers to the first

two  issues  and a negative answer to the third.  This  court  is

evenly  divided on the first and third issues.  As to  the  first

issue,  Justices  Matthews  and  Eastaugh  favor  affirmance  and

Justices  Bryner and Carpeneti favor reversal.  As to  the  third

issue,  Justices  Bryner  and  Carpeneti  favor  affirmance   and

Justices Matthews and Eastaugh favor reversal.  As to the  second

issue,  the court is unanimous and agrees with the trial  court's


           Our  case law establishes that a decision by an evenly

divided  court  results in an affirmance.7  An affirmance  by  an

evenly  divided court is not binding precedent.8  The opinion  of

the justices agreeing with the decision of the superior court  is

referred  to as the dispositional opinion.9  Since at  least  two

members of the court agree with the superior court's decision  as

to  each of the three issues, the superior court's decision  will

be affirmed.

           Part  I of Justice Matthews's separate opinion, joined

in  by  Justice Eastaugh, is the dispositional opinion as to  the

first issue; Part II is the opinion of the court as to the second

issue;  Part  III is a dissenting opinion as to the third  issue.

Part  I  of  Justice  Bryner's  opinion,  joined  in  by  Justice

Carpeneti, is a dissenting opinion as to the first issue; Part II

is the dispositional opinion as to the third issue.

          The judgment of the superior court is AFFIRMED.

MATTHEWS, Justice, with whom EASTAUGH, Justice, joins, concurring

and dissenting.


Constitutional Issues

          Subsequent to the superior court's decision, this court

ruled  on the constitutionality of AS 09.17.020(j).  In Evans  ex

rel Kutch  v. State, in an evenly divided opinion, we affirmed  a

superior  court  decision  that declared  the  1997  tort  reform

legislation to be facially constitutional.10  Subsection  .020(j)

was challenged in Evans as violating substantive due process, the

takings   clause,  and  the  right  to  trial  by  jury.11    The

dispositional opinion written by Chief Justice Fabe and joined by

Justice  Eastaugh concluded that these challenges lacked merit.12

Justice  Bryner,  in  a  dissenting  opinion  joined  by  Justice

Carpeneti, concluded that subsection .020(j) violated substantive

due  process and amounted to an unconstitutional taking under the

Alaska Constitution.13

          In the present case Anderson argues that the statute as

applied  to her violates substantive due process and the  takings

and  equal protection clauses of the Alaska14 and United States15

Constitutions.  I conclude that her arguments lack merit.  As  to

the  takings and substantive due process challenges, I agree with

the  dispositive  opinion  in Evans and with  additional  reasons

presented  by  the  state and discussed in  this  opinion.   With

respect to equal protection I conclude that the statute does  not

unconstitutionally discriminate.

          A.   Takings
                                                                           The Fifth Amendment of the United States Constitution

provides that private property shall not be taken for public use

without just compensation.  Similarly, article I, section 18 of

the Alaska Constitution provides that "private property shall not

be taken or damaged for public use without just compensation."

Noting that the takings clause has been liberally construed in

favor of the property owner in Alaska,16  Anderson argues that