Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions


Touch N' Go
, the DeskTop In-and-Out Board makes your office run smoother.

  This site is possible because of the following site sponsors. Please support them with your business.
www.gottsteinLaw.com

You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Blodgett v. Blodgett (11/17/2006) sp-6076

Blodgett v. Blodgett (11/17/2006) sp-6076, 147 P3d 702

     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,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA

In the Matter of the Estate of: )
) Supreme Court No. S- 11571
Richard Blodgett, )
) Superior Court No.
ROBERT DAVID BLODGETT, ) 2NO-03-32 PR
an interested person, )
) O P I N I O N
Appellant, )
) No. 6076 - November 17, 2006
v. )
)
LOUANN BLODGETT, )
Personal Representative, )
)
Appellee. )
)
          Appeal  from the Superior Court of the  State
          of  Alaska,  Second Judicial District,  Nome,
          Ben Esch, Judge.

          Appearances:  Verne  Rupright,   Rupright   &
          Foster, LLC, Wasilla, for Appellant.  Joe  P.
          Josephson,   Josephson  &   Associates,   PC,
          Anchorage, for Appellee.

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

          CARPENETI, Justice.
          EASTAUGH,  Justice,  with whom  FABE,  Justice,  joins,
concurring.

I.   INTRODUCTION
          After  being  convicted  of  the  criminally  negligent
homicide  of his father, Robert Blodgett attempted to obtain  the
benefits  devised  to him under his fathers  will.   Pursuant  to
Alaskas  slayer statute,1 the superior court found that  Blodgett
was  not  entitled to inherit under the will as a result  of  his
conviction,  and  that no manifest injustice resulted  from  this
forfeiture.   Blodgett  attacks this decision  on  statutory  and
constitutional grounds.  Because we agree with the superior court
that  Blodgett  failed  to  prove that  excluding  him  from  the
benefits  of his fathers will would result in manifest injustice,
and   because   the   superior  court   properly   resolved   the
constitutional  issues,  we  affirm  that  courts  rejection   of
Blodgetts claims.
II.  FACTS AND PROCEEDINGS
          On  September 14, 2003 Robert Blodgett caused the death
of  his  father,  Richard Blodgett.2  Blodgett was  indicted  for
murder in the second degree and in January 2004 he entered a plea
of  no  contest to criminally negligent homicide.  His conviction
led to a three-and-one-half-year term of imprisonment.
          Blodgett  was  named in the final will of  his  father,
which  left  all properties, Bank accounts, stocks and  insurance
policies to his children.  In April 2004 Blodgett petitioned  the
superior  court  for  a  hearing  to  determine  his  rights   to
participate  in the probate proceedings under the Alaska  probate
code and AS 13.12.803.  The other will beneficiaries consented to
the hearing, but, contending that the killing of Richard Blodgett
was   not  unintentional,  argued  that  AS  13.12.803  precluded
Blodgett from receiving any property under the will.
          After  additional  briefing and a  one-day  evidentiary
hearing,  Superior Court Judge Ben Esch issued a  Memorandum  and
Order   denying  Blodgetts  petition  and  preventing  him   from
obtaining any benefits under the will.  The court explained  that
under  AS  13.12.803 forfeiture was mandatory unless  the  slayer
proved  by a preponderance of the evidence that this would result
in  manifest injustice.  The court concluded that Blodget  failed
to  make  such  a showing.  The court considered,  and  rejected,
possible  factors it thought might colorably result  in  manifest
injustice,  including  past  family relationships  and  Blodgetts
monetary  needs.  It found the great deal of testimony about  the
nature  of the past relationship between Blodgett and his  father
unhelpful and irrelevant in determining the justice of denying or
allowing  recovery.   It  also concluded that  Blodgett  retained
sufficient income earning capacity and property holdings that  he
would  not be beggared if he did not receive these funds.   While
the  court  made no specific findings as to Blodgetts culpability
in  his  fathers death, Blodgett was sentenced to three and  one-
half years in prison after he pled guilty to criminally negligent
homicide.
          Blodgett appeals.
III. STANDARD OF REVIEW
          Because the statutory subsection that governs this case
provides that the superior court may set aside the application of
the slayer statute if manifest injustice would result,3 we review
          the superior courts decision for abuse of discretion.4  We find
an  abuse  of discretion only if, based on a review of the  whole
record,  we are left with a definite and firm conviction  that  a
mistake has been made.5
          Constitutional challenges to a statute are questions of
law.6   We review such questions de novo and will adopt the  rule
of law that is most persuasive in light of precedent, reason, and
policy.7
IV.  DISCUSSION
     A.   The  Superior  Court Did Not Abuse  Its  Discretion  In
          Concluding That Forfeiture of the Inheritance Would Not
          Result in Manifest Injustice.
          The common law has long followed the policy that no one
should  be  allowed to profit from his own wrong.8   Accordingly,
many  state courts exercised their equitable powers and  followed
this  maxim in construing probate statutes to prevent inheritance
by  an  heir  who  murdered the decedent.9  Over the  years  most
states  codified  this  rule into what  became  known  as  slayer
statutes.10
          The  original Alaska slayer statute, passed in  1972,11
applied when the offender feloniously and intentionally kills the
decedent.12  The requirement that the homicide be intentional was
taken  from  the  common law rule and the Uniform  Probate  Codes
articulation, both of which endorse the policy that  a  wrongdoer
should not profit from his own wrong.13
          In  1988  the legislature passed an amendment  removing
the  words  and  intentionally from the statute.14   The  amended
statute  on its face applied to homicides covered in AS 11.41.100
to  .14015  that is, including criminally negligent homicide. The
initial  intent of the 1988 amendment was to prevent parents  who
caused  the  death of their child  even if unintentionally   from
recovering  damages  through the childs estate.16   This  concern
followed a case in which a parent failed to act to bring a  child
to  the hospital (an act of criminal negligence) resulting in the
childs  death.17   During debate on the bill, one  representative
suggested that the rule apply to all homicides, not just to those
perpetrated against children.18  The final draft of the amendment
incorporated  this suggestion by simply removing the  requirement
of intent.
          Shortly  after  this amendment, Alaska  Governor  Steve
Cowper  expressed  concern that under unusual  circumstances,  it
might be unjust to prohibit a killer from taking the property  of
the  victim,  such  as in the case of an unintentional  felonious
killing.19  Accordingly, another amendment was adopted in 1989,20
creating  the  manifest  injustice  exception  for  unintentional
homicides now found in subsection (k):
          In  the  case  of an unintentional  felonious
          killing,   a   court  may   set   aside   the
          application  of [the slayer statute]  if  the
          court  makes  special findings  of  fact  and
          conclusions  of  law that the application  of
          the  subsection would result  in  a  manifest
          injustice and that the subsection should  not
          be applied.[21]
          
The  statute  also instructs that acquisitions  of  property  not
covered  by the section shall be treated in accordance  with  the
principle that a killer may not profit from the killers  wrong.22
This  has  remained the law in Alaska.23  Thus,  the  legislature
broadened the application of the slayer statute  by extending  it
to  unintentional  killings  and created  an  escape  clause   by
enacting the manifest injustice exception.24
          Under the current Alaska criminal code, all unjustified
forms  of  killing are deemed felonies.  This includes murder  in
the first degree,25 murder in the second degree,26 manslaughter,27
and criminally negligent homicide.28  Thus, Alaskas slayer statute
encompasses intentional as well as unintentional homicides.
          When   compared  with  the  slayer  statutes  of  other
jurisdictions,  Alaskas slayer statute  emerges  as  unique.   No
other  state has a manifest injustice provision for unintentional
homicides.   But  in the great majority of other states,  such  a
provision  would be unnecessary  in these states only intentional
homicides are within the statutes reach.29  Many of these statutes
are modeled after the Uniform Probate Code.  Following the common-
law  slayer rule, the current Uniform Probate Code slayer statute
applies to an individual who feloniously and intentionally  kills
the  decedent.30  The comments clarify that this section  .  .  .
excludes  the accidental manslaughter killing.31  The Restatement
(Third) of Property takes a similar position, and its formulation
of   the  law  does  not  apply  if  the  killing  was  reckless,
accidental, or negligent.32
          As  noted, the great  majority of state slayer statutes
require  that  the  homicide  be intentional.33   A  minority  of
jurisdictions resemble Alaska in merely requiring the killing  to
be  unlawful,  rather than intentional.34  But  even  among  this
minority  of jurisdictions, some would only cover homicides  with
culpable mental states as low as recklessness,35 and at least one
has  followed  a  judicial opinion reading an intent  requirement
into  its slayer statute.36  Thus, when compared to the practices
of  most other jurisdictions, Alaskas slayer statute has  a  much
broader  reach  that would preclude inheritance for unintentional
killers where other jurisdictions would not.
          The   legislature  tempered  the  broad  reach  of   AS
13.12.803 by investing trial courts with discretion to  stay  its
application in those cases where manifest injustice would result.
Should inheritance be denied to the unskilled teenager who drives
his  car in a criminally negligent manner and accidentally causes
the  death  of a sole remaining parent?  The legislature  clearly
decided  that  in such a case there should be discretion  in  the
court  to  consider the specific facts of the  homicide  and,  if
denial  of inheritance would be manifestly unjust, to permit  it.
Nor  does  this power to avoid the rule conflict with the  policy
underlying the slayer rule: that a killer should not profit  from
the   killers  own  wrong.37   Where  the  killers  act  was  not
intentional, and especially where the act was not even  reckless,
and where other circumstances mitigate the crime, the application
of  this principle may lead to unduly harsh results.  Indeed, the
unintended killing of a loved one, as in the example above, would
likely  cause  the inadvertent killer far greater  personal  ruin
          than monetary gain.
          In  this  case,  Blodgett was convicted  of  criminally
negligent  homicide after a plea of no contest.  This  conviction
conclusively  established a felonious killing  under  the  slayer
statute.38   Because  a  criminally  negligent  homicide  is   an
unintentional homicide, under subsection (k) Blodgett is entitled
to  avoid  the effects of the slayer statute if he  proves  by  a
preponderance  of the evidence that applying the statute  to  him
will result in manifest injustice.
          We  have not had occasion to define the phrase manifest
injustice  as  used  in the slayer statute, or  to  set  out  the
relevant  factors that a trial judge should consider when  ruling
on  this  question.   Similarly, because no  other  state  slayer
statute  contains a provision similar to subsection (k),  out-of-
jurisdiction case law provides no ready assistance.  However, the
Alaska  Court of Appeals has interpreted this phrase in  another,
similar   context.   In  criminal  presumptive  sentencing,   the
legislature enacted a safety valve provision that permits  review
of  a  sentence by a special three-judge panel upon a showing  of
manifest injustice.39  In Smith v. State,40 the court of  appeals
equated  manifest injustice with that which is plainly  unfair.41
Later,  in  Beltz v. State,42 the court of appeals  held  that  a
presumptive term cannot be manifestly unjust in general but  only
as  applied to a particular defendant.43  Before finding manifest
injustice, the court held that the judge must articulate specific
circumstances  that  make  the defendant significantly  different
from  a  typical offender within that category or that  make  the
defendants  conduct  significantly  different  from   a   typical
offense.44  We adopt Beltzs approach for the purpose of  applying
subsection (k) of Alaskas slayer statute.
          Thus, the relevant comparison here is between Blodgetts
conduct  and  that of a typical offender convicted  of  negligent
homicide.  In the criminal proceedings, Blodgett was sentenced to
three and one-half years in prison.  This sentence approaches the
presumptive term for second felony offenses, suggesting that  the
superior court did not believe Blodgetts acts fell at the  lowest
level of culpability for a negligent homicide.45  Given the length
of the sentence, we are reassured that the court below considered
Blodgetts  conduct  in  relation  to  other  similarly   situated
defendants   when  it  rejected  Blodgetts  claim   of   manifest
injustice.
          Blodgett  attempted  to prove that enforcement  of  the
slayer  statute would result in manifest injustice by introducing
evidence  regarding  (1)  past  family  relationships,  and   (2)
possible  impecunity if denied the benefits of inheritance.   The
court  found that Blodgett failed to meet his burden of  proving,
by  a  preponderance of the evidence, extraordinary circumstances
that would have made it manifestly unjust to exclude him from his
fathers will.  We agree.
          The  court  described  the  evidence  regarding  family
relationships as unhelpful.  While the courts statement that  the
nature  and  quality  of the relationship between  these  parties
during life seem unrelated to the fairness of allowing the killer
to   benefit   after  the  decedents  death  may  be   a   narrow
          interpretation of the relevance of past relationships generally,
we  do  not  believe  it  was an abuse of  discretion  under  the
circumstances  of this case.  Witnesses testified  that  Blodgett
and  his  father  shared a relationship of  tough  love,  a  good
relationship marked with occasional squabblings typical of father-
son relationships.  Such testimony neither proves nor refutes the
fairness of forfeiting Blodgetts inheritance.  The court did  not
abuse  its discretion in deciding that Blodgett failed  to  prove
manifest injustice on this ground.
          The  court  also  examined Blodgetts argument  that  it
would be unjust to deny benefits under the will to someone who is
physically   disabled,  who  faces  unknowable   future   medical
expenses, who has a compromised earning capacity and has  ongoing
psychological  needs.   The superior court noted  that,  although
Blodgett  suffered  some  medical  disabilities,  Blodgetts   own
witness  testified  that he is adept at the  operation  of  heavy
equipment  and  has skills as a mechanic.  The court  found  that
these  skills  could lead to employment with yearly  compensation
ranging between $40,000 and $50,000 per year.  It also found that
Blodgett  owns  other property and that future  medical  expenses
will likely be met through the Alaska Native Health Service.   In
light  of this testimony, the court concluded that Blodgett would
not be beggared if he did not receive these funds.  Consequently,
the  court found that Blodgett failed to prove manifest injustice
based on monetary need.
          While we believe the court did not abuse its discretion
in  making  this determination, we are concerned that the  courts
analysis  could lead to the conclusion that a showing of manifest
injustice may turn on predictions concerning the future financial
health  of the petitioner.  Such an approach would allow  slayers
of  their decedents to inherit if they are poor, but not if  they
are financially solvent.  We doubt that this distinction  between
different  slayers based on their personal wealth   reflects  the
legislatures   purpose   in  enacting  the   manifest   injustice
provision.46
          Despite  these concerns, we conclude that the  superior
court  did  not  abuse  its discretion in finding  that  Blodgett
failed  to  prove  manifest injustice by a preponderance  of  the
evidence.
     B.   Application  of  the  Slayer Statute  Did  Not  Violate
          Blodgetts Constitutional Rights.
          
          Blodgett   argues  that  the  slayer  statute  violates
several of his constitutional rights, including his right to  due
process, his right to avoid forfeiture of estate, and his  rights
under the ex post facto clause.47   We consider each in turn.
          1.   Due process
          Blodgett argues that the superior courts application of
the  slayer statute violated his due process rights protected  by
article  I, section 7 of the Alaska Constitution.48  Due  process
requires  that a party receive adequate notice and an opportunity
to  be  heard before being deprived of life, liberty, or property
by adjudication.49  Blodgett argues that [a]t present, nothing is
protecting Robert Blodgetts due process right to obtain access to
          the court, access to discovery and receive a fair hearing.
          Blodgett  requested  and obtained a  hearing  with  the
superior  court.   He then filed advance briefing  and  presented
evidence  and  arguments in front of a judge.   These  procedures
would  appear to dispose of any due process argument.   Blodgetts
position, however, is centered on the assertion that he  held  de
facto  partnership  or  joint venture interests  in  his  fathers
business.  He argues that his due process rights were violated by
not  having  an  opportunity to present evidence regarding  these
alleged interests.
          There  are  numerous  problems with  this  due  process
argument.  First, Blodgett had a hearing in front of the superior
court  and failed to present any evidence regarding these alleged
partnership  or  joint  venture  interests.   Second,   Blodgetts
assertion  on  appeal regarding these interests appears  entirely
unsupported;  he points to no evidence in the record  to  support
it.  In fact, what little evidence there is in this case suggests
otherwise  a letter from Blodgett to his sister after his fathers
death  suggests  that  Blodgett  did  not  have  any  partnership
interest in the fathers business.50  Finally, even if Blodgett has
a  tenable  argument for a partnership interest, it is not  clear
that  the slayer statute would cause him to forfeit his own share
of  the partnership.  For these reasons, we reject Blodgetts  due
process argument.
          2.   Forfeiture of estate
          Blodgett  next  contends that the  application  of  the
slayer statute resulted in a forfeiture of estate in violation of
article  I, section 15 of the Alaska Constitution.  That  section
provides:
          Prohibited   State  Action.    No   bill   of
          attainder  or  ex  post facto  law  shall  be
          passed.   No law impairing the obligation  of
          contracts,  and no law making any irrevocable
          grant  of  special privileges  or  immunities
          shall  be  passed.  No conviction shall  work
          corruption of blood or forfeiture of estate.
          
(Emphasis  added.)  These provisions respond to certain practices
and  doctrines  inherited from England.51  Attainder  existed  at
common  law;  it  was the act of extinguishing  a  persons  civil
rights  when  that person is sentenced to death  or  declared  an
outlaw  for  committing  a  felony  or  treason.52   Incident  to
attainder  and  as punishment for the crime, the felon  forfeited
all of his lands and chattels to the state.53
          We  affirm  the superior courts rejection of  Blodgetts
forfeiture  of  estate claim on both procedural  and  substantive
grounds.    Procedurally,  Blodgett  waived   his   argument   by
inadequately  briefing the issue.  In his brief he  alleged  that
the slayer statute . . . works a forfeiture and cited article  I,
section  15 of the Alaska Constitution,  but he did not construct
any  argument  as  to why that section should invalidate  Alaskas
slayer  statute.54   Substantively, the law is  clear   and  many
states  have  held  that the forfeiture of estate clause  is  not
implicated by the slayer rule.55  Several rationales support this
          conclusion.  First, any loss caused by a slayer statute is not
improperly based on attainders or on the legal status of a felon;
rather,  the  slayer  statute exists to effectuate  the  accepted
policy that a killer should not profit from his wrong.56  The rule
does  not prevent the slayer from inheriting in general; it  only
prevents  the  slayer  from inheriting from the  slayers  victim.
Second, courts have noted that the application of the slayer rule
does  not  actually cause a forfeiture, because the offender  did
not  own the property at the time of the homicide; he merely  had
an  expectancy interest.57  By killing the decedent,  the  slayer
prevents the property interest from vesting in himself.58  Third,
the  constitutional  language suggests that  it  covers  complete
forfeiture, but even assuming that something is forfeited as  the
result of application of the slayer statute, it is not the entire
estate,  but merely some property.59  Finally, the slayer statute
differs from the effect of attainder in that it generally results
in  the estate going to the other heirs, not to the government.60
Because  the forfeiture of estate clause is clearly inapplicable,
Blodgetts argument here must fail.
          3.   Ex post facto clause
          Blodgett  next  argues that application of  the  slayer
statute   violated  the  ex  post  facto  clause  of   the   same
constitutional provision.61  An ex post facto law is a law passed
after  the  occurrence of a fact or commission of an  act,  which
retrospectively  changes the legal consequences or  relations  of
such  fact  or deed.62  It is unclear whether the ex  post  facto
clause applies to purely civil statutes.63  However, because  the
slayer  statute  is  arguably  punitive,  there  is  at  least  a
plausible argument that it could apply in this scenario.
          But  Blodgett  cannot  prevail  on  such  an  argument,
because his claim concerns a non-probate asset: his fathers  life
insurance  policy.  Shortly after Blodgetts plea,  the  New  York
Life  Insurance Company sent Blodgett a letter stating  that  the
Alaska  slayer  statute  disqualified  him  from  obtaining   any
benefits  under  the  life insurance policy,  executed  in  1985.
Blodgetts  position  is  that  his rights  under  this  insurance
contract were impaired retrospectively by the subsequent  passage
of  the  slayer  statute.  We need not reach this  argument,  for
there  has been no adjudication with regard to the life insurance
policy.
          Life  insurance  policies are non-probate  transfers.64
Thus, that Blodgett has been excluded from probate under a slayer
statute  does  not  necessarily exclude him from  obtaining  life
insurance  benefits.65  Blodgett has not sued the New  York  Life
Insurance  Company to challenge its decision to  disqualify  him.
Without  such a challenge, whether the slayer statute applies  to
non-probate transfers was not before the superior court  as  that
court recognized  nor is it before us.  Accordingly, there is  no
occasion  for  us  to consider whether such an application  would
violate the ex post facto clause.
V.   CONCLUSION
          Because the superior court did not abuse its discretion
in  concluding  that  manifest injustice would  not  result  from
application   of  the  slayer  statute,  and  because   Blodgetts
          constitutional challenges to the slayer statute are unavailing,
we AFFIRM the decision of the superior court.
EASTAUGH, Justice, with whom FABE, Justice, joins, concurring.
          I  agree  with the result the court reaches, but  write
separately to discuss my concern about how our slayer statute, AS
13.12.803, applies to negligent homicide.1
          Many  states have equivalent statutes, but most prevent
inheritance  only if the heir intentionally causes the  decedents
death.2   Only about ten states by statute or common  law  forbid
someone  who  unintentionally causes the death  of  another  from
inheriting  the  decedents  estate,3 and  most  of  these  states
disinherit  only  for  reckless conduct  and  not  for  negligent
homicide.4  Other than Alaska, no more than four states  and  the
District of Columbia appear to disinherit if the wrongful conduct
that causes the death is merely negligent in some degree.5
          Our  statute is unusual because it potentially  applies
to  a  class of events that are predictably more likely to  occur
(because  they  involve negligence).  It is also unusual  because
the  wrongful  conduct that puts family members at  risk  may  be
relatively mainstream, akin to what much of the populace commonly
does.   This  is  especially so if it involves common  activities
(such  as driving motor vehicles) that often violate the standard
of  care  specified by statute or regulation.6  As a result,  our
statute  potentially applies both broadly and frequently.   There
is  a potential for harsh results not necessarily contemplated by
the drafters.
          There is also a risk that the states interests advanced
by  the statute are too marginal to justify interference with the
testamentary  expectations  of the  victim  of  negligence.   But
Blodgett  has  not challenged the statutes constitutionality.   I
therefore  assume here that the state has sufficient interest  in
deterrence  and  public  safety  to  bar  inheritance  even   for
negligent  homicide.   There  is  nonetheless  a  potential   for
injustice if the statute is applied harshly in a particular case.
          Our  statute since 1989 has contained an exception  for
manifest  injustice.7   The  legislature,  concerned  about   the
possible   injustice   of   applying  the   slayer   statute   to
unintentional  homicides, in that year adopted an  escape  clause
that  permits  a court to avoid fortfeiture if it  makes  special
findings  of fact and conclusions of law that manifest  injustice
would result.8
          But   because  the  statute  necessarily   applies   to
negligent  homicide,  trial courts might mistakenly  assume  that
circumstances  involving  mainstream  conduct  well  within   the
statute (such as negligent homicide arising out of operation of a
vehicle)  cannot provide a basis for finding manifest  injustice.
A court might likewise think circumstances bearing on the conduct
itself cannot be relevant to a manifest injustice inquiry.  In my
view,  such  a  cramped interpretation of the manifest  injustice
standard  could result in substantial unfairness in  many  cases.
Indeed,  the  very  frequency  with  which  negligently  operated
vehicles  cause death might lead some trial courts to  think  the
circumstances of how a vehicle was operated can never demonstrate
manifest  injustice.   At  the  least,  a  court  might  apply  a
presumption against finding manifest injustice.
          The  statute does not explain what circumstances  might
          justify a finding of manifest injustice.  It would seem that a
litigant trying to avoid disinheritance under the slayer  statute
should  be  permitted to present any arguably relevant  evidence.
This  would  include  evidence relevant to  the  gravity  of  the
negligent  conduct or to the beneficiarys relationship  with  the
decedent.   Foreign  jurisdictions  whose  slayer  statutes  also
contain  escape clauses permit consideration of a broad range  of
circumstances.   The  English Forfeiture Act  states:  The  court
shall  not make an order under this section modifying the  effect
of  the forfeiture rule in any case unless it is satisfied  that,
having  regard to the conduct of the offender and of the deceased
and  to  such  other circumstances as appear to the court  to  be
material, the justice of the case requires the effect of the rule
to  be  so  modified in that case.9  One of the  leading  English
cases  considering  what  circumstances  might  be  relevant  has
explained:
          The court is entitled to take into account  a
          whole range of circumstances relevant to  the
          discretion, quite apart from the  conduct  of
          the    offender   and   the   deceased:   the
          relationship  between  them;  the  degree  of
          moral culpability for what has happened;  the
          nature  and  gravity  of  the  offense;   the
          intentions of the deceased; the size  of  the
          estate  and  the  value of  the  property  in
          dispute;  the  financial  position   of   the
          offender; and the moral claims and wishes  of
          those  who  would  be entitled  to  take  the
          property on the application of the forfeiture
          rule.[10]
          
          It  would  also  seem  that if a  beneficiary  requests
findings  on circumstances that are arguably relevant to manifest
injustice,  the  trial  court should make  findings  as  to  each
relevant  circumstance and explain which circumstances the  court
concludes  are irrelevant. But Blodgett does not claim here  that
the  trial  courts findings were inadequate.  Although the  trial
court  addressed only one circumstance  the financial  effect  of
disinheritance on Blodgett  there was no request for findings  as
to  any  other circumstance and there is no claim on appeal  that
the superior courts findings were deficient.
          I therefore agree to affirm.
_______________________________
     1    AS 13.12.803.

     2     Blodgetts  briefing describes the  event  as  follows:
After  jumping onto a dump truck twice in the early morning hours
of   September  14,  2003,  Richard  Blodgett  apparently  became
entangled in the dump truck and was dragged to his death. .  .  .
Robert  Blodgett was driving the dump truck but was unaware  that
his   father  had  been  killed.   Blodgetts  testimony  in   the
evidentiary  hearing below stated that he generally had  a  close
relationship  with  his father, and that  on  the  night  of  the
accident  when  he  set  the  truck  in  motion  he  thought  all
individuals were clear of the truck.  Blodgett denied that he had
any  indication  that somebody might have  been  in  the  way  or
climbing into the truck.  He also testified that he did not learn
of  his fathers death until a police officer informed him of  the
death at some point after his arrest.
          Contrary  testimony was also adduced  at  the  hearing.
Blodgett  admitted that he had become involved in  two  arguments
with  his  father shortly before the homicide, that  he  and  his
father were yelling at each other, and that they had been toe  to
toe  before  Blodgett was pulled away by another  person.   Luann
Blodgett,   the  personal  representative  and  Robert  Blodgetts
sister,  testified  that Dad was upset a lot  of  the  time  with
[Robert].   He never listened to anything that Dad had told  him.
He  would  go  out and wreck Dads vehicles.  Other belongings  of
Dads.   He would trade things off that belonged to Dad for things
for  himself.  Counsel for the personal representative argued  in
closing  that Blodgett was [not] very interested in  his  fathers
safety  because of the three different quarrels they had  vicious
quarrels,  they had to be separated by people  on the very  night
of this death.

     3    AS 13.12.803(k).

     4     Cf.  Martinez v. Cape Fox Corp., 113 P.3d  1226,  1229
(Alaska 2005) (where statute provided that superior court may . .
.  remove  director  for  fraudulent  acts,  courts  decision  is
reviewed  for  abuse of discretion); Barber v. Barber,  837  P.2d
714,  716  n.2  (Alaska  1992)  (The  approval  of  a  settlement
stipulation  is  within the discretion of the court.   Thus,  the
standard  of  review is the clear abuse of discretion standard.);
Channel  Flying,  Inc. v. Bernhardt, 451 P.2d  570,  572  (Alaska
1969) (The word may [in Civil Rule 77(f)(2)] makes the imposition
of  the sanction discretionary with the court.  As in other cases
where  discretionary authority is involved,  we  shall  interfere
only where there has been an abuse of discretion.).

     5    Alden H. v. State, Office of Childrens Servs., 108 P.3d
224, 228 (Alaska 2005).  We have also said that we will interfere
with a discretionary determination of the trial court only if  it
is arbitrary, capricious or manifestly unreasonable.  Safeco Ins.
Co.  of  America  v. Honeywell, Inc., 639 P.2d 996,  999  (Alaska
1981).

     6     Varilek v. City of Houston, 104 P.3d 849, 851  (Alaska
2004).

     7     Id. at 851-52 (quoting Guin v. Ha, 591 P.2d 1281, 1284
n.6 (Alaska 1979)).

     8    See John W. Wade, Acquisition of Property by Wrongfully
Killing  Another   A  Statutory Solution, 49 Harv.  L.  Rev.  715
(1936).   This policy was famously described in Riggs v.  Palmer,
22  N.E.  188  (N.Y. 1889), where the New York Court  of  Appeals
stated:

          No  one  shall be permitted to profit by  his
          own  fraud, or to take advantage of  his  own
          wrong,  or  to found any claim upon  his  own
          iniquity, or to acquire property by  his  own
          crime.   These maxims are dictated by  public
          policy,  have  their foundation in  universal
          law  administered in all civilized countries,
          and have nowhere been superseded by statutes.
          
Id. at 190.

     9     See, e.g., De Zotell v. Mutual Life Ins. Co., 245 N.W.
58, 59 (S.D. 1932); Riggs, 22 N.E. at 190-91; Wade, supra n.8, at
717-18 n.12.

     10     Today, forty-five states and the District of Columbia
have slayer statutes.  See infra nn. 32-33.  The remaining states
have  retained  some  form of the common-law  slayer  rule.   See
Jeffrey G. Sherman, Mercy Killing and the Right to Inherit, 61 U.
Cin. L. Rev. 803, 805 n.12, 846 n.207 (1993).

     11    The slayer statute was adopted in that year along with
the  rest of the Uniform Probate Code.  See ch. 78,  1, SLA 1972.
Until 1996, the slayer statute was located at AS 13.11.305.   See
ch. 75,  3, SLA 1996.

     12    Ch. 78,  1, SLA 1972 (emphasis added).

     13    See, e.g., Riggs, 22 N.E. at 190; Unif. Probate Code  2-
803(b)  &  cmt. (Pre-1990 Version), 8 U.L.A. 459-60  (1998)  (The
section  is  confined  to felonious and intentional  killing  and
excludes the accidental manslaughter killing.).

     14    Ch. 164,  3-8, SLA 1988.

     15    See former AS 13.11.305.

     16     House  Health, Educ. and Soc. Servs.  Standing  Comm.
Mins., Senate Bill (S.B.) 320, 15th Leg., 2d Sess., at 384 (April
21, 1988) (Statement of Roxanne Stewart).

     17    Id. at 625 (Statement of Richard Svobodny).

     18    Id. at 473 (Statement of Rep. Max Gruenberg).

     19     House  Health, Educ. and Soc. Servs.  Standing  Comm.
Mins.,  Comm. Substitute for House Bill (C.S.H.B.) 165,  at  442,
528 (March 14, 1989) (Statement of Rep. Max Gruenberg).

     20    Ch. 11,  1, SLA 1990.

     21    AS 13.12.803(k).

     22    AS 13.12.803(e).

     23    In 1996 the legislature adopted many provisions of the
revised  Uniform Probate Code and altered the section  numbering,
but  it  left the essential aspects of the slayer statute intact,
rejecting   (apparently  without  discussion)   the   intentional
requirement of the Uniform Probate Codes slayer statute.  Ch. 75,
3, SLA 1996.

     24     The current Alaska slayer statute, AS 13.12.803, with
the exception relevant in this case, now provides:

          (a)  An individual who feloniously kills  the
          decedent  forfeits  all benefits  under  this
          chapter with respect to the decedents estate,
          including  an  intestate share,  an  elective
          share, an omitted spouses or childs share,  a
          homestead allowance, exempt property,  and  a
          family allowance. . . .
          
          (k) In the case of an unintentional felonious
          killing,   a   court  may   set   aside   the
          application of (a) . . . of this  section  if
          the  court makes special findings of fact and
          conclusions  of  law that the application  of
          the  subsection would result  in  a  manifest
          injustice and that the subsection should  not
          be applied.
          
     25    AS 11.41.100 (unclassified felony).

     26    AS 11.41.110 (unclassified felony).

     27     AS  11.41.120  (class A felony).   A  person  commits
manslaughter   if   the  person  intentionally,   knowingly,   or
recklessly causes the death of another person under circumstances
not amounting to murder in the first or second degree.  Id.

     28     AS  11.41.130  (class B felony).   A  person  commits
criminally  negligent homicide if, with criminal negligence,  the
person causes the death of another person. Id.

     29     The  extension  of slayer statutes  to  unintentional
homicide was uncommon until fairly recently.  It is now permitted
in  nine other states and the District of Columbia.  See Sherman,
supra n.10, at 848-49, n.213.

     30     Unif.  Probate Code  2-803(b) (Revised 1990  Version)
(amended 1993), 8 U.L.A. 211 (1998).

     31    Id.  2-803 cmt., 8 U.L.A. 214.  The comments also state
the   Article  II  Drafting  Committees  preference   for   state
uniformity in slayer statutes.  Id.

     32     Restatement (Third) of Prop.: Wills & Other  Donative
Transfers  8.4 & cmt. f (2003).

     33    See, e.g., Ariz. Rev. Stat. Ann.  14-2803 (2005); Cal.
Prob.  Code  250 (West 2005); Wash. Rev. Code Ann.  11.84.010.020
(2005).  See generally Sherman, supra n.10, at 848-49.

     34     See,  e.g., Colo. Rev. Stat.  15-11-803 (2005);  Del.
Code.  Ann.  tit.  12,  2322 (2005); Or. Rev. Stat.   112.455.465
(2005).

     35    For example, Colorados slayer statute covers the crimes
of  murder  in  the  first or second degree or manslaughter,  but
omits  reference  to criminally negligent homicides.   See  Colo.
Rev.  Stat.   15-11-803  (slayer statute),  18-3-105  (criminally
negligent  homicide).  Manslaughter in Colorado  is  generally  a
killing  caused recklessly.  Id.  18-3-104.  Delaware  follows  a
similar  scheme.   See Del. Code Ann. tit. 12,   2322  (including
reckless  manslaughter within its reach, but excluding criminally
negligent  homicide).  The slayer statutes or common  law  slayer
rules  from  several  states and the  District  of  Columbia  do,
however,  apply  to all felonious killings.  See KY.  Rev.  Stat.
Ann.   381.280 (West 2006)  (covering a person who takes the life
of  the decedent and is convicted therefor of a felony); La. Rev.
Stat.   Ann.   22.613  (2005)  (applying  to  persons  criminally
responsible for the death of the decedent), Quick v. United  Ben.
Life  Ins.  Co.,  213  S.E.2d 563, 570-71 (N.C.  1975)  (applying
common law slayer rule where culpable negligence was shown);  and
D.C.  Code   19-320  (2005) (covering all  felonious  homicides).
Another  type  of jurisdiction in the minority is  Kansas,  which
includes  all felonious killings within its slayer statute,  Kan.
Prob.  Code   59-513  (2004),  but its  criminal  code  does  not
recognize  any sub-reckless homicides as felonies.  Compare  Kan.
Stat.  21-3404 (involuntary and reckless homicide is felony) with
Kan. Stat.  21-3405 (vehicular homicide, based on negligence,  is
misdemeanor).   In  addition, New York, which  does  not  have  a
slayer statute but which applies the common law rule, extends the
rule  to  reckless  but  unintentional  killings  (second  degree
manslaughter).   In re Wells Will, 350 N.Y.S.2d  114,  119  (N.Y.
Sur. 1973).

     36    Dowdell v. Bell, 477 P.2d 170, 172-73 (Wyo. 1970).

     37     A  wrongful acquisition of property or interest by  a
killer not covered by this section shall be treated in accordance
with  the principle that a killer may not profit from the killers
wrong.  AS 13.12.803(e).

     38      AS   13.12.803(f)   ([A]  judgment   of   conviction
establishing criminal accountability for the felonious killing of
the decedent conclusively establishes the convicted individual as
the decedents killer for the purposes of this section.).

     39    AS 12.55.165 and .175.

     40    711 P.2d 561 (Alaska App. 1985).

     41    Id. at 570

     42    980 P.2d 474 (Alaska App. 1999).

     43    Id. at 480.

     44    Id.

     45    Criminally negligent homicide is a class B felony.  AS
11.41.130(b).  A defendant convicted of a class B felony  may  be
sentenced  to  a  definite term of not more than ten  years,  and
shall  be  sentenced to a presumptive term of four years  if  the
offense is a second felony conviction.  AS 12.55.125(d)(1).

     46      As  noted,  the  manifest  injustice  provision   of
subsection  (k)  was added after the governor  expressed  concern
that  under certain unusual circumstances, it may be an injustice
to  prohibit the killer from taking property of the victim,  such
as  in  the  case  of an unintentional felonious killing.   House
Health, Educ. and Soc. Servs. Standing Comm. Mins., C.S.H.B. 165,
at  442  (March 14, 1989) (Statement of Rep. Gruenberg) (emphasis
added).

     47    In his opening brief on appeal, Blodgett also attempted
to  raise  the  claim  that application  of  the  slayer  statute
violated  his  right to equal protection.  His failure  to  raise
this  claim  before  the superior court waived  it.   Willoya  v.
State,  Dept of Corrs., 53 P.3d 1115, 1120 (Alaska 2002) (holding
that  argument  is  waived if raised for first time  on  appeal);
Brandon  v.  Corrs. Corp. of America, 28 P.3d  269,  280  (Alaska
2001)  (same).  In his reply brief on appeal, Blodgett  attempted
to  argue  that  his constitutional right to jury trial  and  his
constitutional right to protection against double  jeopardy  were
violated.   But  we will not consider arguments  raised  for  the
first  time in a reply brief.  Danco Exploration, Inc. v.  State,
Dept  of  Natural  Res.,  924 P.2d 432, 435  n.1  (Alaska  1996).
Accordingly,  we decline to consider any of these  constitutional
claims.

     48     Alaska Constitution article I, section 7 provides: No
person  shall be deprived of life, liberty, or property,  without
due process of law. . . .

     49     Aguchak  v. Montgomery Ward Co., 520 P.2d 1352,  1356
(Alaska  1974) (citing Mullane v. Central Hanover  Bank  &  Trust
Co., 339 U.S. 306, 313 (1950)).

     50     In that letter, Blodgett stated, And I really want to
help and participate in the family business.

     51    See generally Mary Louise Fellows, The Slayer Rule: Not
Solely a Matter of Equity, 71 Iowa L. Rev. 489, 539-40 (1986).

     52    Blacks Law Dictionary 137 (8th ed. 2004).

     53    Fellows, supra n.49, at 539.

     54     Brandon v. Corrs. Corp. of America, 28 P.3d 269,  280
(Alaska  2001) ([C]ursory treatment of an issue is considered  by
this court to be waiver of that issue.).

     55    E.g., Hamblin v. Marchant, 175 P. 678, 679 (Kan. 1918);
Cook  v.  Grierson,  845 A.2d 1231, 1234 (Md. 2004);  Garwols  v.
Bankers  Trust  Co., 232 N.W. 239, 241 (Mich. 1930);  Legette  v.
Smith,  85  S.E.2d 576, 580 (S.C. 1955).  For more examples,  see
Michael G. Walsh, Homicide as Precluding Taking Under Will or  By
Intestacy, 25 A.L.R.4th 787,  4, 15 (2004).

     56    Fellows, supra n.49, at 544 & n.168 (collecting cases).

     57    Id. at 540 & n.160 (collecting cases).

     58    This rationale accounts for those cases which have used
the  forfeiture of estate clause to strike down aspects of slayer
rules.  There  have  been  findings  of  unconstitutionality   in
primarily two areas.  The first area  not relevant here  involves
since-superseded  cases  using the  constitutional  provision  to
reject  requests for the judicial creation of a common-law slayer
rule.   See, e.g., Hagan v. Cone, 94 S.E. 602, 603-4 (Ga.  1917),
overruled  by  statute as noted in Keith v. Johnson,  440  S.E.2d
230,  232-33 (Ga. App. 1993); Wall v. Pfanschmidt, 106 N.E.  785,
789-90 (Ill. 1914), overruled by statute as noted in In re Estate
of Vallerius, 629 N.E.2d 1185, 1188 (Ill. App. 1994).  The second
area  involves the narrow question of whether a murderous  spouse
forfeits  all  title  to  his marital joint  tenancies.   Compare
Neiman  v.  Hurff,  93  A.2d  345,  348  (N.J.  1952)  (divesting
surviving-murderer spouse of legal title to joint property  would
violate constitution, but placing legal title of victims share in
constructive trust would circumvent constitutional problems) with
In  re Kings Estate, 52 N.W.2d 885, 887-88 (Wis. 1952) (divesting
surviving-murderer   spouse  of  entire   tenancy   presents   no
constitutional infirmity).  This issue  while irrelevant to  this
case   is addressed directly in Alaskas slayer statute.   See  AS
13.12.803(b)(2)  (felonious killing  severs  joint  tenancy  with
right of survivorship into tenancies in common).

     59    Fellows, supra n.49, at 543 & n.167 (collecting cases).

     60    Id. at 540-41 & n.161.

     61    See Alaska Const., art. I,  15.

     62     Danks  v. State, 619 P.2d 720, 722 n.3 (Alaska  1980)
(citing Blacks Law Dictionary 520 (5th ed. 1979)).

     63     Compare  Allen v. State, 945 P.2d 1233, 1237  (Alaska
App.   1997)   ([T]he   ex  post  facto  clause   prohibits   the
retrospective  application of laws that alter the  definition  of
crimes  or  increase the punishment for criminal acts. )  (citing
Collins v. Youngblood, 497 U.S. 37, 43 (1990)) with Underwood  v.
State,  881  P.2d  322, 327-28 (Alaska 1994) (analysis  by  court
implies  that ex post facto clause could apply to civil statute).
Retroactive  civil legislation must include an express  statement
of retroactivity within the statute.  AS 01.10.090.

     64    AS 13.33.101.

     65    The superior court noted that these benefits would not
be  subject  to  the  [slayer] statute.  Blodgetts  own  briefing
recognizes  that  the  trial court did  not  directly  disqualify
Robert from receiving the benefits of his contractual interest in
the life insurance policy.

1          Per  AS  11.41.130  [a] person commits  the  crime  of
criminally  negligent homicide if, with criminal negligence,  the
person causes the death of another person. Per AS 11.81.900(a)(4)
a  person acts with criminal negligence when the person fails  to
perceive  a substantial and unjustifiable risk . . .  of  such  a
nature  and degree that the failure to perceive it constitutes  a
gross  deviation  from  the standard of care  that  a  reasonable
person would observe in the situation.

     2         See Slip Op. at 10.

     3         Jeffrey G. Sherman, Mercy Killing and the Right to
Inherit, 61 U. Cin. L. Rev. 803, 848 n.213 (1993).

     4           See   Colo.  Rev.  Stat.   15-11-803  &  18-3-04
(extending  slayer statute to killers who recklessly cause  death
of others); Del Code Ann. tit. 12  2322 & tit. 11  632 (extending
slayer  statute  to  killers who recklessly cause  the  death  of
another);  In  re Wells Will, 350 N.Y.S.2d 114,  119  (N.Y.  Sur.
1973) (noting that [t]here is a tremendous difference between one
who   is   criminally  negligent  but  nevertheless   guilty   of
unintentional manslaughter from one guilty of manslaughter in the
second  degree for recklessly causing the death of  another);  84
Okla.  St. Ann.  231 &  21 Okla. St. Ann.  711 (extending  slayer
statute  to  involuntary manslaughter); Or. Rev.  Stat.   112.455
(extending  slayer  statute  to those  who  kill  with  felonious
intent,  which would appear to cover reckless, but not negligent,
homicide);  In re Kleins Estate, 378 A.2d 1182, 1186  (Pa.  1977)
(holding that involuntary manslaughter bars inheritance when  the
culpability  is  reckless,  but not  if  negligent);  McClure  v.
McClure,  403  S.E.2d  197, 200 n.6 (W. Va. 1991)  (holding  that
despite  statute declaring anyone who feloniously  kills  another
could not inherit, nonetheless death resulting from negligence or
gross negligence will not bar recovery under a slayer statute).

     5          The  District  of Columbia slayer statute  covers
homicide resulting from grossly negligent conduct.  See Turner v.
Travelers  Ins.  Co., 487 A.2d 614, 615 (D.C.  1985)  (explaining
that the slayer statute covers unintentional killing derived from
reckless or grossly negligent conduct).

          Louisianas slayer statute covers all criminal homicide.
In re Hamilton, 446 So. 2d 463, 465 (La. App. 1984) (holding that
slayer  statute was intended to include situations such  as  that
presented   by   this   case,  where  a  beneficiary   does   not
intentionally and feloniously cause the death of the insured  but
is nonetheless held criminally responsible for that death).

          North   Carolinas  common  law  slayer  rule  prohibits
inheritance after any wrongful homicide.  Quick v. United Benefit
Life  Ins. Co., 213 S.E.2d 563, 567 (N.C. 1975); Matter of Estate
of  Cox,  388  S.E.2d 199, 201 (N.C. App. 1990).   The  continued
application of this common law rule has been criticized in  light
of  a  slayer  statute  barring  only  intentional  killers  from
inheriting.   N.C.  Gen. Stat.  31A-3; see also  generally  Julie
Waller  Hampton,  The  Need for a New  Slayer  Statute  in  North
Carolina, 24 Campbell L. Rev.  295 (2002).

          Kentucky Revised Statute  381.280 bars inheritance from
those convicted of any felonious homicide.  Reckless homicide  is
a  felony.  KRS  507.050.  Kentucky defines reckless as  a  gross
deviation  from the standard of conduct that a reasonable  person
would  observe.  KRS  501.020.  Reckless homicide in Kentucky  is
therefore  equivalent to criminal negligence in Alaska  under  AS
11.81.900(a)(4).

          Kansas   Statute   59-513  states  that   [n]o   person
convicted  of feloniously killing, or procuring the  killing  of,
another person shall inherit.  Involuntary homicide under  Kansas
law  extends  to  killing of a human being committed  recklessly,
during a misdemeanor, or during the commission of a lawful act in
an  unlawful manner.  KS ST  59-513.   This arguably could extend
to  grossly  negligent  conduct, especially  as  KS  ST   21-3201
explains  that [t]he terms gross negligence, culpable negligence,
wanton  negligence and wantonness are included  within  the  term
recklessness as used in this code.  A federal district court  has
held  that  Kansass  slayer statute does not apply  to  negligent
homicide, and there appear to be no state cases interpreting  the
scope  of  the  statute  or applying it  to  negligent  homicide.
Rosenberger  v. Nw. Mut. Life Ins. Co., 176 F. Supp.  379,  38283
(D. Kan. 1959) (explaining that the intent of the legislature  in
enacting the statute must have been to give effect to the common-
law  rule).   The Kansas slayer statute is essentially  unchanged
since Rosenberger.

     6          A  driver who breaches a standard of care set  by
traffic  statutes  and  regulations  is  negligent.   See,  e.g.,
Ardinger  v. Hummell, 982 P.2d 727, 734 (Alaska 1999) (explaining
that  one who indisputably violates a statue must be found to  be
negligent).If  there is a gross deviation from  the  standard  of
care  that  a  reasonable person would observe the conduct  could
rise  to the level of criminal negligence.  See Comeau v.  State,
758  P.2d 108, 114 (Alaska App. 1988) (noting that driving  while
impaired by alcohol could constitute criminal negligence).

     7         AS 13.12.803(k); see also Slip Op. at 6-8.

     8          See  Slip  Op.  at  6-8  (discussing  legislative
history).

     9         Forfeiture Act, 1982, c. 2  1 (Eng.).

     10         Dunbar  v.  Plant, [1998] Ch. 412, 42728  (appeal
taken  from  Chancery Division) (U.K.) (holding that survivor  of
husband-wife suicide pact could inherit her husbands estate).

This site is possible because of the following site sponsors. Please support them with your business.
www.gottsteinLaw.com
Case Law
Statutes, Regs & Rules
Constitutions
Miscellaneous


IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights
Soteria-alaska
Choices
AWAIC