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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

Schofield v. City of St. Paul (9/3/2010) sp-6509, 238 P3d 603

     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,


) Supreme Court No. S- 13461
Appellant, )
) Superior Court No.
v. ) 3AN-06-12330 CI
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.   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.
     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
          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

     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
          2.    Whether  the error in excluding the evidence  was
          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
          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.
          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

     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
          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
          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
          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
          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
          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

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