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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Schofield v. City of St. Paul (9/3/2010) sp-6509
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
| DAVID SCHOFIELD, | ) |
| ) Supreme Court No. S- 13461 | |
| Appellant, | ) |
| ) Superior Court No. | |
| v. | ) 3AN-06-12330 CI |
| ) | |
| CITY OF ST. PAUL, | ) O P I N I O N |
| ) | |
| Appellee. | ) No. 6509 - September 3, 2010 |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Craig F. Stowers, Judge.
Appearances: Mary A. Gilson and Allison E.
Mendel, Mendel & Associates, Anchorage, for
Appellant. Gregory R. Henrikson, Walker &
Eakes, Anchorage, for Appellee.
Before: Carpeneti, Chief Justice, Fabe,
Winfree, and Christen, Justices. [Stowers,
Justice, not participating.]
CARPENETI, Chief Justice.
I. INTRODUCTION
I. A police officers allegedly improper marriage to a
woman in the Philippines aroused the ire of the municipal police
chief. Amidst the ensuing controversy, the officer resigned,
purportedly to protect his police certification. He then brought
suit claiming constructive discharge. However, the jury found
that the officer was not constructively discharged. The officer
appeals, arguing that the superior court erred in its wording of
a jury instruction, in several evidentiary rulings, and in
awarding attorneys fees. Because we conclude that one of the
evidentiary rulings was erroneous, we remand the case to the
superior court, and do not reach the remaining issues.
II. FACTS AND PROCEEDINGS
A. Facts
David Schofield was a police officer in St. Paul,
Alaska, from October 1998 until his resignation in late October
2004. He had moved to St. Paul in 1996, although his then-wife
remained in Idaho. In December 2003 Schofield was introduced via
the internet to Eula Figuero a woman living in the Philippines.
Schofield traveled to the Philippines in July 2004 and proposed
to Figuero; a wedding was scheduled for October 8, 2004.
Schofield sent divorce papers to his wife in Idaho, but
the divorce was not finalized when Schofield traveled to the
Philippines for his wedding. Therefore, Schofield claims he and
Figuero completed a non-legal wedding ceremony, and were not
actually married. But, according to the City of St. Paul,
Schofield told city officials he was married to Figuero.
Schofields father, who said he attended the ceremony, also said
that Schofield had married.
Within weeks of the wedding, St. Paul Chief of Police
Gary Putman became aware of the apparent double marriage, which
he believed constituted the crime of Unlawful Marrying under AS
11.51.140. At this time, Chief Putman was also looking into
Schofields absence from work, because Schofield was due back by
October 13 but had not been heard from as of October 18.
Upon Schofields arrival back in Alaska, two important
meetings between Putman and Schofield ensued. First, upon
Schofields return on Friday, October 22 from the Philippines, he
was met at the airport by a police officer and taken immediately
to meet with Putman. Putman taped his meeting with Schofield,
with Schofields consent. At this meeting, Putman confronted
Schofield about his allegedly criminal activity, and told
Schofield that the issue could cost Schofield his police
certification. Putman suspended Schofield and scheduled a follow-
up meeting for Monday afternoon, October 25.
Schofield testified that over the weekend St. Paul
residents told him he had been terminated. Schofield also
testified that on Monday morning he had a conversation with Mike
Meehan, acting director of the Alaska Police Standards Council.
From that conversation Schofield was left with the impression
that he would lose his police certification if he were fired, but
not if he resigned. Meehan acknowledged that he had a
conversation with Schofield, but implied that he would not have
told Schofield this.1
The second meeting between Schofield and Putman was on
Monday afternoon; it too was recorded. Even before entering the
meeting, Schofield was aware that his office had been packed up
and cleaned out. At the meeting, Schofield asked what
alternatives he had to resigning, and in response Putman stated
that the district attorney would look into whether to prosecute
Schofield and the Alaska Police Standards Council would question
Schofields police certification. Putman then told Schofield that
he could expect probably some fairly aggressive questioning and
could pretty much figure out the direction this is going to take.
Schofield claims that because he feared he would be fired, he
resigned at that meeting to protect his certification.
B. Proceedings
In October 2006 Schofield filed a complaint in superior
court. He alleged wrongful termination and constructive
discharge, and asked for damages in excess of $100,000.00.
Superior Court Judge Craig F. Stowers conducted a civil
jury trial. At trial Schofield argued that the factors
surrounding his return from the Philippines made him feel like he
was going to be fired, and therefore his resignation to protect
his police certification was constructively a discharge. In
January 2009 the jury returned a special verdict finding that
there was no constructive discharge. Constructive discharge was
the first issue on the special verdict form, and the jury did not
reach any other issues.
Because the city made an earlier offer of judgment
(offering $10,000 costs, attorneys fees, and judgment in favor of
Schofield), the court awarded the city attorneys fees under Civil
Rule 68 in the amount of $72,362.75.
Schofield appeals, alleging ten errors: He challenges
the jury instruction on constructive discharge, six evidentiary
exclusions, two evidentiary inclusions, and the attorneys fees
award. Because we conclude that one of the evidentiary
exclusions requires reversal, we reach the merits of that issue
only.
III. STANDARD OF REVIEW
We review a trial courts admission or exclusion of
evidence for abuse of discretion.2 An abuse of discretion exists
only when we are left with a definite and firm conviction, after
reviewing the whole record, that the trial court erred in its
ruling.3 Further, we will reverse only if the error was
prejudicial, that is whether on the whole record the error would
have had a substantial influence on the verdict of a jury of
reasonable laymen.4
IV. DISCUSSION
A. It Was Error To Exclude Chief Putmans Statements About The
District Attorney And The Alaska Police Standards Council.
At trial Schofield wanted to introduce several
statements which he claims would show that he had reason to
believe he would be fired. But the superior court excluded
several of the statement as unfairly prejudicial and confusing or
irrelevant. We address here the superior courts decision to
exclude portions of the two taped conversations between Schofield
and Putman.
The superior court excluded substantial portions of
Putmans October 22 and 25 meetings with Schofield. The superior
court excluded the portion of the October 22 meeting where Putman
said he spoke with the district attorney, would refer Schofields
record to the district attorney, and expected charges to be
brought against Schofield.5 The superior court then excluded a
larger portion of the October 25 conversation where Putman again
said the district attorney would get Schofields record and would
decide whether to prosecute or investigate further. The court
also struck Putmans statement that the Police Standards Council
would subpoena the records and would probably do some fairly
aggressive questioning . . . relative to [Schofields]
certification. Arguably insinuating that Schofields
certification would be revoked, Putman said: So you can pretty
much figure out the direction this is going to take.6
1. Whether the exclusions were an abuse of discretion
The city asserts that the exclusions were appropriate
and were based on an earlier ruling on a motion in limine. In
that ruling, the superior court excluded all information about
the district attorneys investigation and the Police Standards
Councils investigation. The court found those investigations
irrelevant, or if marginally relevant, then too potentially
misleading. The court reasoned that whether the district
attorney or the Police Standards Council ultimately took action
was irrelevant to Schofields decision to resign, since those
agencies investigations were discretionary and would come after
Schofields decision to resign. Schofield, however, argues this
was an abuse of discretion because Putmans comments, coming right
before Schofields resignation, were highly relevant to the issue
of whether he felt forced to resign and unlikely to mislead since
they did not actually contain information about the district
attorneys and the Police Standards Councils investigations.
Alaska Evidence Rule 403 governs such exclusions:
Although relevant, evidence may be excluded if its probative
value is outweighed by the danger of unfair prejudice, confusion
of the issues, or misleading the jury, or by considerations of
undue delay, waste of time, or needless presentation of
cumulative evidence. Trial courts have broad discretion in
applying this balancing test.7
Generally it makes sense to exclude information
concerning the results of any investigation by the district
attorney or the Police Standards Council because those
investigations would have occurred after, and independent of,
Schofields decision to resign i.e., they could not have
compelled him to resign and are thus irrelevant. But that logic
is not germane to the statements that were excluded in this case.
Here, many of the excluded statements were uttered right before
Schofield resigned and do not pertain to the results of the
investigations, just the threat of an investigation.
Further, the statements were relevant and presented
little danger of unfair prejudice or potential to mislead.
Because Schofield claimed he resigned to avoid a potentially
career-ending investigation, it was relevant that Putman
insinuated to Schofield that Schofields record would be sent to
the district attorney and the Police Standards Council, and that
those agencies would likely undertake investigations if Schofield
did not tender his resignation. This is particularly true
because the excluded portions of the October 25 conversation came
directly before Schofield tendered his resignation to Putman.
And the statements relevance is not outweighed by their potential
to mislead. It is true that the ultimate results of the
investigations could mislead the jury because the agencies might
use different records and processes than a court uses. But the
statements in question would not require any discussion of the
results of the investigations by the district attorney or the
Police Standards Council. Rather, they simply show that
Schofield was threatened by, or made aware of, their potential.
Because the excluded statements go to the core of
Schofields claim that he resigned to protect his police
certification, there is significant probative value to the
statements. And because the statements do not discuss the
ultimate outcome of the investigations of the district attorneys
or the Police Standards Councils investigations, the possibility
of confusion from their admission into evidence is minimal. We
conclude that it was an abuse of discretion to exclude the
statements.
2. Whether the error in excluding the evidence was
prejudicial
To reverse a trial courts evidentiary ruling, the error
must affect the outcome, that is, have had a substantial
influence on the verdict. . . .8 We have found an erroneous
exclusion of evidence to be reversible where it concerned an
issue central to the case and could have affected the ultimate
award.9 That is the case here.
The excluded statements are central to Schofields
theory that he resigned to protect his certification. The gist
of the excluded statements from October 25 is that if Schofield
refused to resign (1) Putman would send his records to the
district attorney and the Police Standards Council, (2) Putman
expected the district attorney to prosecute, and (3) Putman
insinuated that the Police Standards Council would revoke
Schofields certification. Schofields theory was that he was
constructively discharged by Putmans statements indicating
Schofields police certification could be revoked, which
statements were largely contained in the excluded evidence. So
it was quite important that the jury knew that Putman discussed
with Schofield the district attorneys and the Police Standard
Councils potential investigations, and in an allegedly
threatening manner. Indeed, it was of particular importance
because the constructive discharge instruction (instruction
number 21) required the jury to determine if Putman told
Schofield that he had to resign or else be fired.10
While Putman never explicitly said that the
investigations would proceed differently if Schofield resigned,
Schofield was entitled to argue that Putman insinuated that based
on context. In the excluded material, Schofield asked what
alternatives he had to resignation, and in response Putman
discussed the investigations that could affect Schofields
certification. In this context, the alternative to resigning was
the loss of certification resulting from the district attorneys
and the Police Standards Councils investigation. But the jury
had no idea of those statements or their context. Instead, the
jury heard Schofield ask if there were any options to resignation
and heard Putman say yes. The jury did not hear the discussion
about investigations and certification revocation, or the
statement you can pretty much figure out the direction this is
going to take. This omission is significant because Schofields
theory is that he resigned under pressure, in order to avoid
investigations that could lead to revocation of his
certification.
Finally, the excluded statements were not the only
evidence that resignation would avoid an investigation, but
rather they served to corroborate a key assertion in the case:
Schofields contention that the Police Standards Councils
representative Meehan said Schofield could avoid losing his
certification if he resigned. The excluded conversation between
Schofield and Putman came shortly after the alleged Meehan
statement, which is otherwise uncorroborated.
Viewing the conversations between Putman and Schofield
in their entirety including the portion omitted from the jurors
it would be reasonable for a jury to conclude that Putman was
encouraging Schofield to resign, with the insinuated threat that
Schofield would end up being fired and lose his certification if
he did not resign. On the other hand, viewing the conversations
as the jury did with the comments about potential investigations
excised the conversation appears relatively benign. Because the
excluded statements related to constructive discharge (the
ultimate matter which decided the case), came at a crucial
moment, and corroborated a key statement, we conclude that their
exclusion could have had a substantial influence on the verdict,
and was sufficiently prejudicial to constitute reversible error.
B. In Light Of The Decision Above, We Do Not Reach The
Additional Points On Appeal.
Because the superior courts award of attorneys fees was
based on the citys status as prevailing party, and because our
decision today remands the case to the trial court, we do not
reach the merits of Schofields attorneys fees claim.
Further, we express no opinion on the other evidentiary
errors Schofield alleges. Because it is unknown what specific
evidence will be introduced on remand and what objections might
be raised, we leave the determination of those eventual issues to
the discretion of the superior court.
Finally, our decision today should not be read as an
implicit approval of the jury instruction contested in this
appeal. Jury Instruction 21 concerned constructive discharge and
Schofield alleges that it presented an erroneous theory of
constructive discharge that would require the employer to
explicitly propose a resignation and threaten a termination.
While we have found resign or be fired threats to constitute
constructive discharge,11 we have also found constructive
discharge in situations where no such explicit threats existed.12
However, because it is not clear that Schofield objected to the
jury instruction below, our review likely would be only for plain
error.13 That review is unnecessary in light of our decision to
remand on other grounds, and therefore we do not address Jury
Instruction 21.
V. CONCLUSION
Because it was error to exclude Putmans comments
regarding expected investigations by the district attorney and
the Police Standards Council from the October 22 and 25, 2004,
taped meetings, we REVERSE the judgment below and REMAND this
case to the superior court for proceedings consistent with this
opinion.
_______________________________
1 When informed of Schofields version of Meehans remarks,
Meehan testified that it doesnt sound like something I would say.
2 Getchell v. Lodge, 65 P.3d 50, 53 (Alaska 2003).
3 Id. (internal citations omitted).
4 Noffke v. Perez, 178 P.3d 1141, 1148 (Alaska 2008)
(quoting Dalkovski v. Glad, 774 P.2d 202, 207 (Alaska 1989)).
5 The relevant portions of the October 22 meeting, with
excluded segments bracketed and in italics, follow:
MR. PUTMAN: Yeah. But I mean Ill tell you Im
really concerned about where youre at on [the
marriage] issue. Thats why I asked you, did
you do this by the book?
MR. SCHOFIELD: No, but by the same . . .
MR. PUTMAN: And when youre in a foreign
country, boy, Ill tell you that I I would
suspect that would always want to do things
according to their laws because nobody wants
to end up in one of their institutions.
MR. SCHOFIELD: Well, I spoke to a judge
before doing this.
MR. PUTMAN: Huh?
MR. SCHOFIELD: I spoke to a judge right
before doing this.
MR. PUTMAN: Do you have the judges name?
MR. SCHOFIELD: I can get the name, yes.
MR. PUTMAN: Yeah. If if you can get the
name and you can show me all this stuff . . .
MR. SCHOFIELD: Okay.
MR. PUTMAN: . . . then Ill certainly make it
part of the record. [And that will go I
spoke with the attorney that handles
policemens conduct in Anchorage.
MR. SCHOFIELD: Okay.
MR. PUTMAN: His name is Kevin Burke . . .
MR. SCHOFIELD: Uh-huh.
MR. PUTMAN: . . . what I found. Now, what he
chooses to do with it at that point, I
personally do not anticipate that this state,
if theyre going to I could be wrong, but
theyre they will anticipate pressing charges
against you.
MR. SCHOFIELD: Okay.
MR. PUTMAN: but I cant say what theyll do in
Idaho. And if you didnt do something by
according to Hoyle . . .
MR. SCHOFIELD: Hoyle?
MR. PUTMAN: . . . so to speak. Well, thats
like you play cards, its a book of Hoyle or
the rules. Now, if you didnt do things the
way they were supposed to be done . . .
MR. SCHOFIELD: Uh-huh.]
MR. PUTMAN: . . . and if you deceived them,
forged any documents, falsified any
documents, did anything like that, you could
be in some serious trouble.
6 The relevant portions of the October 25 meeting, with
excluded segments bracketed and in italics, follow:
MR. PUTMAN: So youre saying that youre
resigning?
MR. SCHOFIELD: Not something Id like to do,
but I think that may be the best course of
action right now.
MR. PUTMAN: The only thing I can tell you, if
you choose to resign, I will accept it.
MR. SCHOFIELD: Okay.
MR. PUTMAN: But the thing is, is I have to
have that decision today within the next
hour.
MR. SCHOFIELD: Okay.
MR. PUTMAN: And the only thing I can tell you
should you choose to resign that I wish you
the best. Ill even do what I can to help you
if if its within my capability as an
individual, also it must be within my
capabilities professionally.
MR. SCHOFIELD: Yes.
MR. PUTMAN: And I hope you understand that.
MR. SCHOFIELD: Of course I do.
MR. PUTMAN: And I want to see you get your
life back in order, too. I know that this
certainly hasnt been pleasant for any of us.
MR. SCHOFIELD: No, I understand that.
MR. PUTMAN: Okay. You need a few minutes
then?
MR. SCHOFIELD: Are there any other options
that are really open to me on this?
MR. PUTMAN: The options are always open to
you, David. [I can tell you I can tell you
what is going to happen . . .
MR. SCHOFIELD: Okay.
MR. PUTMAN: . . . from this from this point.
Ive been in touch, as I told you before, with
Kevin Burke with the district attorneys
office.
MR. SCHOFIELD: All right.
MR. PUTMAN: He is the the district attorney
that handles all officer misconduct.
MR. SCHOFIELD: Correct.
MR. PUTMAN: All right. He will get my
report. He will make a decision what to do
with that.
MR. SCHOFIELD: Okay.
MR. PUTMAN: Whether to prosecute it, whether
to send it to another state for prosecution,
whether to assign it to other people within
the state for additional investigation. The
one thing that will happen when theyre per
perform this process, youre this record and
everything thats been done will be
subpoenaed. And I know this because I got a
phone call today, will be subpoenaed by APSC.
MR. SCHOFIELD: Okay.
MR. PUTMAN: And you, of course, will have an
opportunity to answer any questions that they
have in regard to it.
MR. SCHOFIELD: Okay.
MR. PUTMAN: But theyre not governed by the
same rules that you might expect in court, so
. . .
MR. SCHOFIELD: Right, I understand.
MR. PUTMAN: . . . you I mean, expect
probably some fairly aggressive questioning
. . .
MR. SCHOFIELD: Okay.
MR. PUTMAN: . . . relative to your
certification.
MR. SCHOFIELD: Okay.
MR. PUTMAN: So you can pretty much figure out
[the] direction this is going to take.
MR. SCHOFIELD: Right.
MR. PUTMAN: So the decision is yours.
MR. SCHOFIELD: Okay.]
MR. PUTMAN: Do you know what you wish to do?
7 Bluel v. State, 153 P.3d 982, 986 (Alaska 2007).
8 Noffke, 178 P.3d at 1148 (quoting Dalkovski, 774 P.2d
at 207).
9 Id.
10 See infra Part IV.B.
11 Municipality of Anchorage v. Gregg, 101 P.3d 181, 192
(Alaska 2004).
12 City of Fairbanks v. Rice, 20 P.3d 1097, 1102-03
(Alaska 2000).
13 Sowinski v. Walker, 198 P.3d 1134, 1160 (Alaska 2008)
(citing Cummins, Inc. v. Nelson, 115 P.3d 536, 541 (Alaska
2005)).
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