| Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions |
|
|
|
This site is possible because of the following site sponsors. Please support them with your business.
|
| Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions |
|
|
|
|
|
This site is possible because of the following site sponsors. Please support them with your business.
|
You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Maness v. Daily (05/16/2008) sp-6263
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
| BRET F. MANESS, | ) |
| ) Supreme Court No. S- 12040 | |
| Appellant, | ) |
| ) Superior Court No. 3AN- 03-8513 CI | |
| v. | ) |
| ) O P I N I O N | |
| JOHN DAILY, ERIC SMITH, | ) |
| TINAMARIE BUFFINGTON, THAD | ) No. 6263 May 16, 2008 |
| HAMILTON, ERIC SPITZER, | ) |
| CLIFTON PECK, MUNICIPALITY | ) |
| OF ANCHORAGE, ANCHORAGE | ) |
| POLICE DEPARTMENT, ALASKA | ) |
| STATE TROOPERS, | ) |
| ) | |
| Appellees. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, John Suddock, Judge.
Appearances: Bret F. Maness, pro se,
Atwater, California. Thomas M. McDermott,
Assistant Municipal Attorney, James N.
Reeves, Municipal Attorney, Anchorage, for
Appellees John Daily, Clifton Peck,
Municipality of Anchorage, and Anchorage
Police Department. Ruth Botstein, Assistant
Attorney General, Talis J. Colberg, Attorney
General, Anchorage, for Appellees Eric Smith,
Thad Hamilton, and Eric Spitzer.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, and Carpeneti, Justices. [Bryner,
Justice, not participating.]
MATTHEWS, Justice.
At a sentencing hearing on a charge of illegal
possession of a firearm, a federal district court found that Bret
Maness had pointed a firearm at the officers who arrested him.
The main question in this case is whether this finding may be
given issue preclusive effect in a subsequent civil action where
Maness claims that the officers used excessive force in arresting
him. We conclude that issue preclusion is inappropriate. The
sentencing court considered the events just before the arrest to
be irrelevant and did not allow Maness to present evidence
concerning them.
I. FACTS
On June 27, 2001, Manesss former girlfriend Tinamarie
Buffington1 filed a petition for initiation of involuntary
commitment for Maness, alleging that Maness was very confused and
. . . very delusional. Based on her testimony, Superior Court
Judge Eric S. Smith ordered that Maness be taken into temporary
custody for emergency treatment pursuant to AS 47.30.700.
Acting on Judge Smiths order, Alaska State Troopers
went to Manesss home in the early morning hours of June 28, 2001,
to take him into custody and transport him to the Alaska
Psychiatric Institute for evaluation. Maness alleges that the
troopers tried to break into his home and that they engaged in
stealth tactics. After exchanging words with the troopers,
Maness fled from them in his motor home down the Parks Highway
toward the Glenn Highway. Maness was pursued by State Troopers
and by members of the Anchorage Police Department, which had been
called for assistance.2 He was forced to stop his vehicle after
the tires on his motor home were punctured by tire deflation
devices. Maness claims that he then exited his vehicle and held
his hands up in the air for several minutes. After believing
that he heard gunshots, Maness ran back into his vehicle, grabbed
a rifle, a handgun, and ammunition, and fled into the woods.
The police found Maness around 7:00 a.m. Precisely
what happened next is a source of controversy. Maness claims
that without provocation he was shot in the back by the police.
The police contend that Maness was threatening them and that they
shot him after he turned and pointed a rifle in their direction.
Maness was charged in state court with eluding a peace
officer who was attempting to serve a domestic violence order
[sic], assaulting officers by making threats and pointing a rifle
at them, and being a felon in possession of that rifle. However,
all of the state charges were dismissed because the main
testimony supporting the indictment was from an investigating
officer who merely recited facts from the reports of other
officers. Maness, however, was charged and convicted in federal
district court for being a felon in possession of a firearm. At
the sentencing hearing, United States District Court Judge Ralph
R. Beistline found that Maness had, inter alia, engaged in
assaultive conduct toward the police. The court sentenced Maness
to ten years in jail, the maximum sentence allowable by statute.
II. PROCEEDINGS
Maness, acting without legal counsel, filed a civil
action against many of the participants in the events leading to
his shooting and arrest. The complaint named Judge Eric Smith as
a defendant, claiming that he had wrongly issued the ex parte
mental commitment order. Also named as defendants were the
Alaska State Troopers and individual Troopers Thad Hamilton and
Eric Spitzer. The complaint alleged that Spitzer falsely
reported to police dispatch that shots were fired at him and that
his car was hit. The complaint also alleged that after stopping
but before pursuing Maness into the woods, Spitzer and Hamilton
inspected Spitzers vehicle and found no damage yet negligently
failed to report that Spitzers earlier report concerning shots
was not true.
The complaint also named the Municipality of Anchorage,
the Anchorage Police Department, and Anchorage Police Officers
Clifton Peck and John Daily. The complaint alleged that Peck had
shot Maness in the back without warning, essentially stating a
claim that excessive force was used to arrest Maness. According
to the complaint, after Maness was shot, Daily told other
officers on the scene over the police radio that he had
previously taken grenades off of Maness. The complaint alleged
that this statement was false and caused an unnecessary delay in
obtaining medical treatment for Maness. The complaint also
alleged that both the Anchorage Police and the State Troopers had
wrongfully refused to return some of Manesss property. Further,
the complaint contained a claim for false imprisonment. Maness
sought compensatory damages for his personal injuries and for the
loss of his property. In addition, he requested punitive damages
and injunctive relief in the form of a court order enjoining
Alaska police agencies from gunning people down at the drop of a
dime and enjoining Judges from issu[]ing Ex Parte orders on the
whims of vindictive people.
The defendants answered, interposed numerous
affirmative defenses, and brought a series of dispositive
motions.
Judge Smith moved to dismiss for failure to state a
claim upon which relief can be granted based on the doctrine of
absolute judicial immunity. Superior Court Judge John Suddock
granted this motion.
The State, including Troopers Hamilton and Spitzer,
also moved to dismiss. The States motion was based on AS
09.65.210, which precludes a person from recovering personal
injury damages if the person when injured was engaged in the
commission of a felony which substantially contributed to the
persons injury.3 This motion was premised on Manesss conviction
of the felony of being a felon in possession of a firearm. The
State argued that this felony substantially contributed to
Manesss injury because while armed illegally he had threatened
the police and this threat resulted in his being shot.4 The
State argued that Maness was precluded from contesting that he
had threatened the police by the findings of the United States
District Court that were made at Manesss sentencing.
A few days after the State filed its motion to dismiss,
the Municipality of Anchorage moved for summary judgment on
behalf of the Anchorage Police Department and Anchorage Police
Officers Daily and Peck. This motion was based on AS
09.65.210(1) and on the additional ground that the police
officers were shielded by qualified immunity.
Maness opposed these motions. He claimed that the
felon in possession of firearms conviction could not have
substantially contributed to my personal injury as the mere
possession of firearms . . . is no reason to shoot me in the back
with no warning. And he contended that he was not permitted at
the sentencing hearing to present evidence concerning the events
leading up to his shooting: Judge Beistline precluded me from
presenting any evidence or testimony at trial or at the
sentencing hearing, ruling that it was not relevant to a
possession . . . charge.
The States motion to dismiss and the Municipalitys
motion for summary judgment were decided by the superior court in
a written order. At the outset the court denied the
Municipalitys motion for summary judgment as such, noting that it
had filed no sworn affidavits setting forth admissible evidence.
But the court ruled that the motion would be considered as a
motion to dismiss since it overlapped the States motion to
dismiss. As to the latter, the court recognized that the
critical issue was whether Maness had pointed a weapon at the
officers. The court wrote that
[t]he mere fact that he illegally possessed a
firearm while fleeing in the woods would not
alone enable the officers to use excessive
force in his apprehension, with impunity from
suit. The crime, standing alone, could not
then be said to have substantially
contributed to his injury. It is only the
alleged pointing of the weapon at the
officers that causally links the offense to
the outcome. That allegation implicates a
factual issue outside the pleadings, which
would normally defeat an ARCP 12(b)(6)
motion.
The court went on to note that the district courts
sentencing findings could resolve the factual issue: If Judge
Beistline found Mr. Maness was shot during or immediately after
an assault with a deadly weapon, and that finding binds Mr.
Maness, the excessive force personal injury claim is no longer
viable.5 Addressing this issue, the court concluded that the
district court had found by clear and convincing evidence that
Mr. Maness had in fact assaulted the officers with a deadly
weapon. The superior court further observed that [b]ecause of
that found fact, [the district court] enhanced the sentence under
the federal sentencing guidelines. Thus, [the courts] finding
was necessary to the judgment, although not to the conviction.
The superior court took note of Manesss claim that he
had not been afforded a fair opportunity to present evidence
regarding the assault allegations. The court asked Maness to
file an affidavit setting forth the details of any curtailment of
an opportunity to present his side of the story. Maness accepted
this invitation by filing an affidavit of his federal defender
who claimed that Maness was precluded from presenting evidence as
to what occurred just before he was shot. But after reviewing
this affidavit and the federal sentencing transcript, the
superior court entered an order that concluded that Maness had a
full and fair opportunity to tell his tale, did so in fact, and
that his account of excessive police force was considered and
rejected by the federal court. The court found that the doctrine
of collateral estoppel precluded Maness from contesting the
district courts findings that he had pointed a rifle at the
police and that this assaultive conduct led to the shooting.
Accordingly, the superior court ordered the dismissal of the
excessive force claim.
In the same order the superior court dismissed Manesss
claim for injunctive relief. The court wrote:
The State moves to dismiss Plaintiffs
count for injunctive relief to enjoin police
authorities from using excessive force, and
Alaska judges from issuing ex parte
commitment orders without conducting a
screening investigation. This court is
without power to enjoin other Alaskan judges
to interpret state law in a particular way.
Nor can this court broadly enjoin police
officers to refrain from the use of deadly
force in unspecified situations, the facts of
which are not before the court. The motion
to dismiss the count for injunctive relief is
granted.
Subsequently Manesss remaining claims against the State
and the Municipality were resolved by stipulation. The
stipulation reserved Manesss right to appeal the dismissal of his
injunctive relief and excessive force claims.
III. DISCUSSION
On appeal Maness argues that the dismissal of his
excessive force claim based on findings made by the United States
District Court at his sentencing was improper. He also argues
that the temporary custody order entered under AS 47.30.700 did
not comply with statutory and constitutional requirements and
that injunctive relief barring similar orders in the future
should have been issued. Finally, Maness argues that the order
dismissing Judge Smith on judicial immunity grounds was error,
but only insofar as injunctive relief was sought.
We address first the main issue, the dismissal of the
excessive force claim.
A. Excessive Force
1. Collateral estoppel does not bar Maness from
pursuing his excessive force claim.
Collateral estoppel bars plaintiffs from relitigating
matters that have already been decided in a previous forum.
According to a typical statement of doctrine, applying collateral
estoppel forecloses the relitigation of issues of fact or law
that are identical to issues which have been actually determined
and necessarily decided in prior litigation in which the party
against whom [estoppel] is asserted had a full and fair
opportunity to litigate.6 Whether collateral estoppel applies to
a particular set of facts is a question of law that we review de
novo, using our independent judgment.7 When deciding the
preclusive effect of federal litigation, this court must look to
federal law.8
Because the State and the Municipality rely on the
preclusive effect of the district courts findings at a sentencing
hearing, rather than the preclusive effect of the jurys verdict,
this case presents the relatively novel issue of whether a judges
findings at a sentencing proceeding should bind subsequent civil
litigation. Only the Second Circuit has considered this issue in
any detail, and it was reluctant to extend preclusive effect to
sentencing findings. The court conclude[d] that precluding
relitigating on the basis of such findings should be presumed
improper. While we do not foreclose application of the doctrine
in all sentencing cases, we caution that it should be applied
only in those circumstances where it is clearly fair and
efficient to do so.9 We agree that caution is warranted in these
circumstances.
Maness claims that he was shot in the back by an
officer; the officers deny this accusation and say that Maness
was facing them and pointed his rifle in their direction. But
Maness was prevented both at his criminal trial and at sentencing
from introducing photographic evidence and testimony that
purported to demonstrate that he was shot in the back. In a
pointed exchange with Manesss attorney at trial, Judge Beistline
remarked:
And let me just clarify I view this
case as a case where the government has
charged Mr. Maness, saying that he was a
felon and that he possessed firearms
illegally, and he has denied that. And so
the government has to prove that, and so the
evidence coming in surrounds that issue.
This is not a civil trial . . . as to whether
or not he was wrongfully arrested or as to
whether or not excessive force was used.
Thats another matter, but thats not before
me.
(Emphasis added.) Although we base our ruling on whether Maness
was estopped on our own reading of the record, when a court
expressly says that it is not reaching an issue, this statement
is certainly germane to our consideration of whether that issue
was fully and fairly litigated.10 Further, as explained later in
this opinion, we believe that the evidence Maness was not able to
present would be relevant in any trial in which Maness alleged
that the officers used excessive force in trying to apprehend
him.
The jury was charged only with determining whether
Maness had been in possession of a firearm, not whether he
assaulted the police. However, the State and the Municipality
primarily rely on the district courts findings of fact during
Manesss sentencing hearing to argue that Maness should be
precluded from claiming that the officers used excessive force
against him. At the sentencing hearing, the district court was
free to consider issues that went beyond those determined by the
jury, and did so. As the superior court explained, [a]t
sentencing, Judge Beistline made findings of fact by clear and
convincing evidence that were necessary for his determination of
sentence enhancement under the federal sentencing guidelines.
The federal court made findings that Maness had behaved in an
assaultive manner toward the officers who were pursuing him,
stating at one point: It was a several hour hunt in the in the
woods, defendant was heavily armed during this time, and then
there was the final threat, pointing of the weapon, that led to
his shooting. Clearly defendant was engaged in assaultive
conduct. The appellees argue that these sentencing findings
should control any subsequent litigation brought by Maness and
that because of them, in the words of the superior court, the
excessive force personal injury claim is no longer viable.
We do not believe that Maness should be collaterally
estopped by the findings made at his sentencing hearing. The
court restricted the evidence and testimony Maness could present.
Maness requested permission to present witnesses at his
sentencing hearing to show that he was shot in the back, but this
was denied because the court found such evidence to be irrelevant
to sentencing.11 Thus Maness was not afforded the opportunity at
sentencing to fully litigate his claim that the officers used
excessive force in apprehending him. The use of collateral
estoppel is subject to constraints based on fairness.12 We
conclude that it would be unfair to preclude Maness from
maintaining this suit on the basis of conclusions reached in a
sentencing hearing where he was barred from presenting evidence
that would be important in the current case.
2. Do other grounds exist for affirming the dismissal
of the excessive force claim?
The Municipality argues that even if there is an
unresolved issue of fact as to whether Maness pointed a firearm
at the police, the dismissal of his excessive force claim can be
affirmed on other grounds. Procedurally this argument is a
proper one because this court may affirm a judgment on any
appropriate basis, including grounds that are neither relied on
nor raised in the superior court.13 The Municipality contends
that there are two such grounds in this case.
First, the Municipality relies on AS 11.81.370(a)(2).14
This statute permits a police officer to use deadly force when
necessary to make the arrest or terminate the escape from custody
of a person who is in possession of a firearm. But this statute
places conditions on the use of deadly force. It may be used
only when and to the extent the officer reasonably believes the
use of deadly force is necessary to make the arrest or terminate
the escape.15 This means that deadly force is only authorized to
the extent that its use is reasonably necessary to accomplish the
stated objectives. On this record, and because issue preclusive
effect may not be given to the district courts factual findings
at the sentencing hearing, there are unresolved factual questions
that prevent us from so concluding.
The Municipalitys second argument relies on AS
09.65.210(1).16 The Municipality argues that [b]y fleeing into
the woods armed with an assault rifle, and attempting to elude
police, Maness knew or should have known that he had created an
extremely dangerous situation, posing a significant risk that he
might be shot. While this argument has a certain appeal, the
statute requires proof by clear and convincing evidence that the
felony substantially contributed to the personal injury. Here
the felony was the mere possession of a firearm. We agree with
the observation made by the superior court that [t]he mere fact
that [Maness] illegally possessed a firearm while fleeing in the
woods would not alone enable the officers to use excessive force
in his apprehension . . . . The crime, standing alone, could not
then be said to have substantially contributed to his injury.
Accordingly, we conclude that the courts dismissal of Manesss
excessive force claim cannot be affirmed on alternative grounds.
A remand for further litigation of this claim is therefore
necessary.
B. Manesss Remaining Claims Are Moot or Waived.
As previously noted, Maness contends that Judge Smith
in issuing the temporary custody order did not properly follow
the Alaska civil commitment statute, AS 47.30.700, and,
alternatively, that the statute is unconstitutional. He also
contends that the superior court should have issued an injunction
against Judge Smith. Maness writes that he is in continuing
danger of a repeat performance of the terror he suffered on
[that] harrowing night. We reject these claims for procedural
reasons.
We have noted that [a] claim is moot where a decision
on the issue is no longer relevant to resolving the litigation,
or where it has lost its character as a present, live
controversy. 17 The issue of Manesss commitment order has every
mark of no longer being a present, live controversy. The
commitment order was issued against Maness over six years ago.
Maness is currently serving a ten-year prison term. The issue of
whether there should be an injunction against the enforcement of
the original civil commitment order is moot.
There is yet the possibility that Manesss case falls
under the public interest exception where we will . . . consider
a question [that] otherwise [is] moot.18 We weigh three factors
in deciding whether to apply the public interest exception: (1)
whether the disputed issues are capable of repetition, (2)
whether the mootness doctrine would, if applied, repeatedly
prevent review of the issues, and (3) whether the issues are so
important to the public interest as to warrant overriding the
mootness doctrine.19 Maness alleges that his ex-girlfriend will
again have him committed: he says that she has clearly shown her
proclivity for the abuse of process and to vexatiously manipulate
the judges of Alaska.
We find that Manesss claim fails at the first step; he
has presented a theory but no evidentiary basis for the claim
that he will be the subject of another commitment order when he
is released from prison.20 And even assuming arguendo that the
commitment order issued on June 27, 2001, was in error, we cannot
further assume that this will be true of any future commitment
order issued against Maness. Should someone seek to have Maness
taken into temporary custody, this motion would be based on a
different set of facts specific to different circumstances.21 An
injunction against such future orders would be inappropriate,
especially one as wide-ranging as Maness originally proposed.22
Maness also makes a constitutional challenge to the
civil commitment statute itself in his brief. Maness states that
a commitment process that allows temporary custody based solely
on a judges evaluation of the facts and credibility of a single
witness (in Manesss words, solely . . . the unsubstantiated say-
so of, for instance, a vexatious ex-spouse), such as the process
embodied in AS 47.30.700, should be held unconstitutional.
Maness cites several cases designed to show that greater due
process is required in the civil commitment process.23
The State rightly notes in its brief that Manesss
constitutional challenge was not raised in the superior court; it
asserts that as a result the challenge ought to be considered
waived. We agree. Manesss original complaint only alleged that
the Ex Parte mental commitment order was wrongly issued by . . .
Judge Eric Smith. But this complaint pertains to the application
of the statute and does raise the issue of the constitutionality
of the statute itself. Manesss response to the trial courts
dismissal of the suit against Judge Smith also merely repeats his
attack on Judge Smiths alleged failure to follow the letter of
the statute in committing him. Nor can a constitutional attack
on the statute be gleaned from any of Manesss pleadings in the
superior court. 24 The question of the constitutionality of the
statute has therefore been waived.25
IV. CONCLUSION
The judgment of the superior court is REVERSED with
respect to Manesss claims based on excessive force. In all other
respects it is AFFIRMED.
_______________________________
1 Although Maness and Buffington had a wedding, they were
never legally married.
2 During the pursuit, the troopers mistakenly thought
that Maness was shooting at their vehicles and reported this to a
police dispatcher.
3 The relevant text of AS 09.65.210 is set out infra note
16.
4 The States motion also referred to Burcina v. City of
Ketchikan where this court recognized on common law grounds the
principle which precludes a person who has been convicted of a
crime from imposing liability on others for the consequences of
his or her own antisocial conduct. 902 P.2d 817, 821 (Alaska
1995).
5 In reaching this conclusion the court relied on the
statute, AS 09.65.210(1), taken in combination with the common
law principle expressed in Burcina, 902 P.2d at 820.
6 Sedlack v. Braswell Servs. Group, Inc., 134 F.3d 219,
224 (4th Cir. 1998) (internal quotation omitted). This court has
adopted a similar formulation: for collateral estoppel to apply,
the issue between the parties must have been actually litigated
and determined in the first action . . . and the determination
must have been essential to the judgment. DeNardo v. Municipality
of Anchorage, 775 P.2d 515, 517 (Alaska 1989) (quotation
omitted).
7 State, Dept of Health & Soc. Servs., Office of
Childrens Servs. v. Doherty, 167 P.3d 64, 68-69 (Alaska 2007).
8 Donnelly v. Eklutna, Inc., 973 P.2d 87, 92 (Alaska
1999).
9 S.E.C. v. Monarch Funding Corp., 192 F.3d 295, 306 (2d
Cir. 1999).
10 Cf. Louis Ender, Inc. v. Gen. Foods Corp., 467 F.2d
327, 330 (2d Cir. 1972) (issue that was deemed irrelevant by a
state court in prior litigation was not barred by collateral
estoppel).
11 The district court explained:
The Court has considered Defendants
motion [for an evidentiary hearing] and the
attachments thereto and does not find that
any of the proposed witnesses have
information relevant to Defendants
sentencing. Whether Defendant was shot in
the back or not, and the events leading to
his arrest, will have no bearing on the
sentence.
12 See Montana v. United States, 440 U.S. 147, 164 n.11
(1979) (Redetermination of issues is warranted if there is reason
to doubt the quality, extensiveness, or fairness of procedures
followed in prior litigation.); Monarch, 192 F.3d at 306
(collateral estoppel should be applied only in those
circumstances where it is clearly fair and efficient to do so).
13 We first recognized this rule in Ransom v. Haner, 362
P.2d 282, 285 (Alaska 1961). We have noted that
this rule is not absolute. By its own terms,
it applies only to issues of law that find
support in settled facts. It does not extend
to new theories that would normally be
resolved by discretionary powers
traditionally reserved for trial courts
powers relying on case-specific consideration
of disputed or disputable issues of fact.
Vaska v. State, 135 P.3d 1011, 1019 (Alaska 2006).
14 AS 11.81.370(a)(2) provides:
(a) In addition to using force
justified under other sections of this
chapter, a peace officer may use nondeadly
force and may threaten to use deadly force
when and to the extent the officer reasonably
believes it necessary to make an arrest, to
terminate an escape or attempted escape from
custody, or to make a lawful stop. The
officer may use deadly force only when and to
the extent the officer reasonably believes
the use of deadly force is necessary to make
the arrest or terminate the escape or
attempted escape from custody of a person the
officer reasonably believes
. . . .
(2) has escaped or is attempting to
escape from custody while in possession of a
firearm on or about the person[.]
15 AS 11.81.370(a).
16 AS 09.65.210(1) provides:
A person who suffers personal injury or
death . . . may not recover damages for the
personal injury or death if the injury or
death occurred while the person was
(1) engaged in the commission of a
felony, the person has been convicted of the
felony, including conviction based on a
guilty plea or plea of nolo contendere, and
the party defending against the claim proves
by clear and convincing evidence that the
felony substantially contributed to the
personal injury or death[.]
17 Clark v. State, Dept of Corr., 156 P.3d 384, 387
(Alaska 2007) (quoting Municipality of Anchorage v. Baxley, 946
P.2d 894, 899 (Alaska App. 1997)).
18 Wetherhorn v. Alaska Psychiatric Inst., 156 P.3d 371,
380-81 (Alaska 2007).
19 Id.
20 See City of Los Angeles v. Lyons, 461 U.S. 95, 108
(1983) (denying injunctive relief based on a speculative belief
in future harm).
21 Wetherhorn, 156 P.3d at 381.
22 In his complaint in superior court, Maness requested an
order enjoining Judges from issuing Ex Parte orders on the whims
of vindictive people.
23 None of the cases he cites appears to be directly on
point. Addington v. Texas, 441 U.S. 418 (1979) (standard of
proof for indefinite commitment); Evans v. McTaggart, 88 P.3d
1078 (Alaska 2004) (clear and convincing evidence standard
required for granting non-parents custody of children over
parents). Maness also cites Grant v. Johnson, 15 F.3d 146 (9th
Cir. 1994), but probably means to cite to Grant v. Johnson, 757
F. Supp. 1127 (D. Or. 1991), dismissed as moot, 15 F.3d 146 (9th
Cir. 1994) (holding that Oregons procedure for appointment of
temporary guardian for six months violated due process).
24 See Thoeni v. Consumer Elec. Servs., 151 P.3d 1249,
1257 (Alaska 2007).
25 Id. ([A] pro se litigant who fails to raise an issue
below should not be able to raise the issue on appeal absent
plain error.). Maness also raises a Fourth Amendment objection
to the way in which his order was served. This claim, too, is a
completely new claim and is accordingly waived.
 |
| Case Law Statutes, Regs & Rules Constitutions Miscellaneous |
|
