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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Stewart v. Elliott (10/1/2010) sp-6513

Stewart v. Elliott (10/1/2010) sp-6513

        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 

JAMES R. STEWART,                               ) 
                                                )       Supreme Court No. S-13286 
                        Appellant,              ) 
                                                )       Superior Court No. 4FA-07-01251 CI 
        v.                                      ) 
                                                )      O P I N I O N 
STEVE ELLIOTT,                                  ) 
                                                )      No. 6513 - October 1, 2010 
                        Appellee.               ) 
                                                ) 

                Appeal from the Superior Court of the State of Alaska, Fourth 
                Judicial District, Fairbanks, Michael A. MacDonald, Judge. 

                Appearances: James R. Stewart, pro se, Fairbanks, Appellant. 
                Steve L. Elliott, pro se, Fairbanks, Appellee. 

                Before: Carpeneti, Chief Justice, Fabe, Winfree, Christen, and 
                Stowers, Justices. 

                FABE, Justice. 

I.      INTRODUCTION 

                A driver was arrested on a felony driving under the influence (DUI) charge 

at 12:40 a.m. on the date a new DUI law took effect. Represented by counsel, he pleaded 

no contest to the DUI charge in return for its reduction from a felony to a misdemeanor. 

But years later, the superior court granted the driver post-conviction relief, concluding 

that his counsel had been ineffective in failing to recognize that although the new DUI 

----------------------- Page 2-----------------------

law   became   effective   at   12:01   Alaska   Standard   Time,   Alaska   was   still   on   Daylight 

Saving Time at the time of arrest. 

                The driver brought a malpractice suit against the attorney who negotiated 

the plea bargain. The driver relied primarily on the decision in the post-conviction relief 

action to demonstrate his attorney's negligence in failing to recognize a discrepancy 

between Alaska Standard Time and Alaska Daylight Saving Time. But the superior court 

declined to give the post-conviction decision preclusive effect and ruled that the driver 

had not presented sufficient evidence to prove negligence. 

                Because the driver's attorney in the criminal action was not a party to the 

post-conviction relief proceeding and neither directed nor controlled that litigation, we 

agree   with   the   superior   court   that   the   post-conviction   relief   decision   did   not   have 

preclusive effect in the malpractice action. We also conclude that the record supports the 

superior court's decision, and we affirm it in all respects. 

II.     FACTS AND PROCEEDINGS 

        A.      Facts 

                1.      Arrest and plea bargain 

                On September 1, 2001, Alaska's DUI law changed, lowering - from 0.10 

to 0.08 - the blood alcohol percentage required for a driver to be considered "under the 
influence."1   On that same day James Stewart was arrested at 12:40 a.m.2  Various tests 

showed his blood alcohol percentage to be between 0.080 and 0.91.  These levels were 

under the .10 presumption in the old law but exceeded the .08 presumption in the new 

        1       See AS 28.35.030(a)(2).        See also ALASKA STAT. ANN.  28.35.030 cmt. 

Effect of amendments (Lexis 2008) ("The 2001 Amendment, effective September 1, 
2001, in paragraph (a)(2), substituted '0.08 percent' for '0.10 percent' . . . ."). 

        2       According to Stewart, the traffic stop occurred at 12:20 a.m., 20 minutes 

before the arrest. 

                                                  -2-                                            6513
 

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 law. Because new laws become effective at 12:01 a.m. Alaska Standard Time,  Stewart's 
 12:40 a.m. arrest proceeded under the new DUI law.3 

                 Stewart was charged with a DUI. He faced a heightened charge because he 

 had a prior DUI conviction and another conviction for refusing to take a blood alcohol 
 test.4 Attorney Steve Elliott represented Stewart and negotiated a plea bargain under 

 which   Stewart   pleaded   no   contest   in   November   2001   to   the   reduced   charge   of   a 

 misdemeanor DUI, carrying a one-year sentence and a $1,000 fine.                      He received an 

 additional   year   and   15   days   due   to   revocation   of   probation   in   an   earlier   robbery 

 conviction. 

                 2.      Post-conviction relief 

                 On May 3, 2002, Stewart filed a pro se petition for post-conviction relief 
 based on claims distinct from those in this appeal.5             Geoffry Wildridge, the assistant 

 public    defender    assigned    to  Stewart,    reviewed     the  petition   and   found    Stewart's 

 allegations not to be colorable and further concluded there were no other meritorious 

 claims that could be raised on Stewart's behalf.  Accordingly, in October 2003 - well 

 after Stewart had served his prison term - Wildridge moved to withdraw as Stewart's 

 counsel. 

                 Reversing   course   eight   days   later,   Wildridge   supplemented   Stewart's 

 petition for post-conviction relief.       Wildridge had become aware of a recent court of 

         3       See AS 01.10.070(d). 

         4       See AS 28.35.030(n). 

         5       Stewart claimed ineffective assistance of counsel, asserting that an evidence 

 suppression   issue   should   have   been   argued   by   Elliott,   and   because   he   felt   that   his 
 consumption of alcohol before the new DUI law went into effect made his arrest ex post 
facto . 

                                                   -3-                                             6513
 

----------------------- Page 4-----------------------

appeals decision,Fowler v. State,6 which contained dicta noting in passing that "the new 

felony DUI law took effect at 12:01 a.m., Alaska Standard Time, (that is, at 1:01 a.m. 
Alaska   Daylight   Time)   .   .   .   ."7 Distinguishing   Daylight   Saving   Time   from   Alaska 

Standard Time has a dramatic effect on Stewart's case.              According to Fowler's dicta, 

because we "fall back" an hour when switching to Alaska Standard Time, an arrest on 

a given day during Daylight Saving Time is actually an hour earlier on Alaska Standard 
Time.8    Because   Alaska   was   on   Daylight   Saving   Time   when   Stewart   was   arrested, 

Fowler's dicta would place Stewart's 12:40 a.m. arrest 21 minutes before the law under 
which he was arrested became effective.9           Stewart's arrest at 12:40 a.m. September 1 

Daylight Saving Time would be considered to occur at 11:40 p.m. August 31 Alaska 

Standard Time, which places it on the day before the new law went into effect. 

                On   this   newly   discovered   basis   for   ineffective   assistance   of   counsel, 

Wildridge argued on Stewart's behalf that Elliott failed to "perform at least as well as an 

attorney with ordinary training and skill in the criminal law" by failing to recognize the 

time discrepancy issue.  Finding ineffective assistance of counsel, Superior Court Judge 

Mark I. Wood granted Stewart's supplemented petition for post-conviction relief and 

vacated the DUI conviction. 

        6       70 P.3d 1106 (Alaska App. 2003). 

        7       Id. at 1109. 

        8       Id. 

        9       To be clear, Stewart's arrest did not take place on the day we switch from 

Daylight Saving Time; rather his arrest occurred on September 1, while Alaska is firmly 
on Daylight Saving Time. See NATIONAL INSTITUTE OF STANDARDS AND TECHNOLOGY, 
INFORMATION ABOUT THE  CURRENT DAYLIGHT  SAVING TIME (DST) RULES (May 11, 
2010), www.nist.gov/physlab/div847/dst.cfm (specifying that Daylight Saving Time ends 
at 2:00 a.m. on the first Sunday of November). 

                                                  -4-                                           6513
 

----------------------- Page 5-----------------------

        B.       Proceedings 

                 After achieving post-conviction relief, Stewart filed the present professional 

malpractice   case   against   Elliott,   his   original  DUI   attorney.      The   case   came   before 

Superior Court Judge Michael A. MacDonald, who conducted a bench trial on March 4, 

2008.   Stewart was represented by counsel at trial.  To establish a breach of the duty to 

use   the   skill,   prudence,   and   diligence   that   other   attorneys   with   training   and   skill   in 

criminal law commonly possess, Stewart pointed to the post-conviction relief decision, 

in which Judge Wood found that Elliott had not acted "like a reasonable attorney who 

was skilled in the criminal law."  Other than the post-conviction relief decision, Stewart 

presented no evidence that a reasonable lawyer should have discerned the discrepancy 

between the two time regimes.           In contrast, there was evidence that other experienced 

local defense attorneys, including Geoffry Wildridge, had failed to notice or raise this 

issue in similar cases.      Elliott also observed in his testimony that Fowler was decided 

after Stewart's plea to the DUI charges and that federal legislation appears to conflict 

with Fowler's suggestion that the two time regimes make a difference in the effective 
date of new legislation.10 

                 Judge     MacDonald       was    concerned     that   Stewart     presented    no   expert 
testimony.      Judge   MacDonald   pointed   Stewart's   counsel   to  Zok   v.   Collins,11         which 

requires   expert   testimony   in   all   but   obvious   or   non-technical   situations   in   order   to 

        10       15 U.S.C.  260a(a) provides: "[T]he standard time of each zone . . . shall 

be advanced one hour and such time as so advanced shall . . . be the standard time of such 
zone during [the period for Daylight Saving Time] . . . ."  The question whether Daylight 
Saving   Time   is   actually   different   from   Alaska   Standard   Time   for   purposes   of   the 
effective date of new legislation is not before this court, and we do not decide it. 

        11       18 P.3d 39 (Alaska 2001). 

                                                    -5-                                               6513
 

----------------------- Page 6-----------------------

establish   a   breach   of   an   attorney's   duty   of   care.12  Despite   this   warning,   Stewart's 

attorney did not call an expert and maintained that the court "must acknowledge there has 

been   a   finding   [of   ineffective   assistance   of   counsel]   by   a   competent   court   in   this 

jurisdiction." 

                 Judge MacDonald ruled that Stewart had not proved that Elliott's conduct 

fell below the standard of care for a reasonable attorney and entered judgment for Elliott. 

On the question of issue preclusion, Judge MacDonald recognized that Elliott had not 

been a party to the post-conviction relief proceeding and that the post-conviction relief 

decision was thus not binding on Elliott.          On the question whether Elliott breached his 

duty of care, Judge MacDonald noted that three other local attorneys, all experienced 

defense attorneys, had also failed to notice the difference regarding time regimes.                    In 

light of the "subtle nature [of] the question of law," the fact that several attorneys had not 

noticed the time discrepancy, and the fact that Judge Wood's post-conviction relief 

decision "may be incorrect," the superior court found that Stewart did not establish that 

Elliott breached his duty of care. 

                 Stewart appeals, claiming that Elliott was negligent in failing to notice the 

time discrepancy. 

III.    STANDARD OF REVIEW 

                 Because Stewart relies on the post-conviction relief decision, his appeal 

raises the question whether the post-conviction relief decision must be given preclusive 
effect in the malpractice action.  This is a legal issue,13 and we review questions of law 

        12      Id. at 42. 

        13       See State, Dep't of Health & Soc. Servs., Office of Children's Servs. v. 

Doherty, 167 P.3d 64, 68-69 (Alaska 2007) (applying independent review to issue of 
collateral estoppel). 

                                                   -6-                                                6513 

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de novo,14 adopting the rule of law that is most persuasive in light of precedent, reason, 

and policy.15 

                Whether a standard of care was breached is a factual determination.16              We 

review factual findings under the "clearly erroneous" standard.17  We reverse a factual 

finding only if we are left "with 'a definite and firm conviction on the entire record that 
a mistake has been made.' "18 

IV.     DISCUSSION 

                Stewart argues that Elliott was negligent because he failed to distinguish 

between Alaska Standard Time and Daylight Saving Time and thus failed to argue that 

the new law had not yet gone into effect when Stewart was arrested.                 Citing the post- 

        14      Jacob v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 

177 P.3d 1181, 1184 (Alaska 2008);John's Heating Serv. v. Lamb, 46 P.3d 1024, 1030 
(Alaska 2002). 

        15      Jacob, 177 P.3d at 1184. 

        16      Parnell v. Peak Oilfield Serv. Co., 174 P.3d 757, 766 n.20 (Alaska 2007); 

Bryson v. Banner Health Sys., 89 P.3d 800, 803 n.4 (Alaska 2004) (noting that extent and 
scope   of   duty   are   questions   of   law);  see   Swenson   Trucking   &   Excavating,   Inc.   v. 
Truckweld Equip. Co., 604 P.2d 1113, 1118-19 (Alaska 1980) (explaining that breach of 
duty is question for fact finder); see also Armstrong v. United States, 756 F.2d 1407, 
1409   (9th   Cir.   1985)   ("[T]he   determination   of   negligence   requires   the   testing   of 
particular facts against a predetermined standard of conduct. The existence and extent of 
a duty of care are questions of law but whether such a duty has been breached [is a 
question of fact] . . . .") (internal citation omitted); Bursztajn v. United States, 367 F.3d 
485, 490 (5th   Cir. 2004) (distinguishing between existence of duty - legal question - 
and whether defendant's particular behavior breached that duty - factual question). 

        17      Brotherton v. Brotherton, 142 P.3d 1187, 1189 (Alaska 2006);Nerox Power 

Sys., Inc. v. M-B Contracting Co., 54 P.3d 791, 794 (Alaska 2002). 

        18      City of Hydaburg v. Hydaburg Coop. Ass'n, 858 P.2d 1131, 1135 (Alaska 

1993) (quotingParker v. N. Mixing Co., 756 P.2d 881, 891 n.23 (Alaska 1988)). 

                                                  -7-                                            6513
 

----------------------- Page 8-----------------------

conviction     relief   decision,   Stewart   contends    that   Elliott's  "actions   fell  below    the 

reasonable range of attorneys skilled in the criminal law."              We understand Stewart to 

argue that, contrary to the superior court's ruling, the evidence was sufficient to establish 

that Elliott breached his duty of care. 

                Legal malpractice is a professional negligence claim requiring the plaintiff 

to establish four basic elements: (1) that the defendant has a duty "to use such skill, 

prudence, and diligence as other members of the profession commonly possess and 

exercise," (2) that the defendant breached that duty, (3) that the breach proximately 
caused the injury, and (4) that actual loss or damage resulted from the negligence.19 

                This   case   hinges   on   the   second   element,   breach   of   duty.20   The   only 

evidence submitted at trial that suggested a breach of duty was Judge Wood's earlier 

post-conviction relief decision, which, Judge MacDonald concluded, was not binding on 

Elliott. Further, Judge MacDonald observed that multiple other attorneys failed to notice 

the time issue. Thus Judge MacDonald found that, given the evidence presented, Stewart 

did not demonstrate breach.  Judge MacDonald's conclusions were not erroneous. 

        A.	     Because Elliott Was Neither A Party To Nor In Privity With A Party 
                To The Post-Conviction Relief Decision, Issue Preclusion Does Not 
                Bind Elliott To That Decision. 

                Stewart attempted to demonstrate negligence by relying on Judge Wood's 

post-conviction relief decision, in which Judge Wood concluded that Elliott's actions 

constituted ineffective assistance of counsel. But Judge MacDonald correctly noted that 

        19      Shaw v. State, Dep't of Admin., Pub. Defender Agency, 816 P.2d 1358, 1361 

n.5 (Alaska 1991) (citing Linck v. Barokas & Martin, 667 P.2d 171, 173 n.4 (Alaska 
1983)). 

        20      The   superior   court   ruled   that   "Stewart   failed   to   establish   that   Elliott's 

conduct fell below the standard of care of a reasonable attorney." 

                                                  -8-	                                            6513
 

----------------------- Page 9-----------------------

that post-conviction relief decision does not bind Elliott in this professional negligence 

claim. 

                 We have held that post-conviction relief is a necessary prerequisite for a 

claim of legal malpractice in criminal cases, but we have never suggested that it takes the 
place of establishing the elements of negligence.21   For an issue in a separate action to 

have preclusive effect under the doctrine of collateral estoppel, the party against whom 
the issue is being asserted must have been a party to the earlier action.22                But if one was 

not a party to the earlier action, that non-party may nonetheless be bound if in privity 
with   the   party   in   the   earlier  action.23 In   addition   to   the   party/privity   requirement, 

collateral   estoppel   requires   that   the   judgment   be   final   and   on   the   merits;   that   the 

precluded issue be identical in both actions; and that the issue be essential to the final 
judgment in the first action.24 

                 To    define    privity,   "[w]e    have   adopted     the   approach     of  the   Second 

Restatement of Judgments . . . ; it is an approach that 'relies on the various specific 
relationships      that   justify  preclusion.'     "25  Privity   exists   where     "the   non-party     (1) 

substantially participated in the control of a party's presentation in the adjudication or 

had an opportunity to do so; (2) agreed to be bound by the adjudication between the 

parties;   or   (3)   was   represented   by   a   party   in   a   capacity   such   as   trustee,   agent,   or 

         21      See Shaw, 816 P.2d at 1361 n.5. 

         22      See Powers v. United Servs. Auto. Ass'n, 6 P.3d 294, 297-98 (Alaska 2000). 

         23      State, Dep't of Health & Soc. Servs., Office of Children's Servs. v. Doherty, 

 167 P.3d 64, 72 (Alaska 2007); Powers, 6 P.3d at 297; Alaska Foods, Inc. v. Nichiro 
Gyogyo Kaisha, Ltd., 768 P.2d 117, 121 (Alaska 1989). 

         24      Powers, 6 P.3d at 297-98. 

         25      Id. 

                                                     -9-                                               6513
 

----------------------- Page 10-----------------------

executor."26    Privity "is a shorthand way of expressing assurance that the non-party has 

had adequate notice and opportunity to be heard, and that its rights and interests have 
been protected."27     In effect, privity assures that it is fair to legally bind the non-party to 

the actions of the party in the earlier action.28 

                 In   the   past   we   have   found   privity   only   where   the   relationship   allowed 

significant and unhampered control over the earlier litigation.                 For example, where a 

family that jointly occupied land litigated a claim where all family members had the 

opportunity to participate in the litigation and generally agreed on its course, we held that 

the family members were in privity and bound by res judicata when they later tried to 
litigate the same claims as individuals.29  Conversely, we held that a secondary insurance 

company was not in privity with a primary insurance company because neither could 
exert control over the other's litigation.30        The lack of control over the other's litigation 

was particularly relevant given that their liability coverages were slightly different, which 
created distinct interests on behalf of each insurer.31 We held that co-workers injured in 

a single accident were not in privity when each initially pursued litigation independently; 
thus we declined to bind one to the other's failure to exhaust administrative remedies.32 

        26      Id. at 298 (citing RESTATEMENT (SECOND)OFJUDGMENTS  39-42 (1982)). 

        27      Alaska Foods, 768 P.2d at 121 (citing Drickersen v. Drickersen, 546 P.2d 

162, 170-71 (Alaska 1976)). 

        28      Donnelly v. Eklutna, Inc., 973 P.2d 87, 92 (Alaska 1999). 

        29      Id. at 93. 

        30      Powers, 6 P.3d at 297-98. 

        31      Id. 

        32      Elliott v. Brown, 569 P.2d 1323, 1328 (Alaska 1977). 

                                                   -10-                                              6513
 

----------------------- Page 11-----------------------

And we held that an individual shareholder was not in privity with a corporation - even 

when      the  shareholder     had    significant   control    of  the   litigation   -    because     the 

shareholder's actions on behalf of the corporation did not provide the ability to represent 
the shareholder's individual interests.33  Similarly, a government-employed social worker 

was not bound by a decision against her state agency - finding the social worker's 

actions inappropriate - because that employee had interests different from those of the 
government and had no control over the government's litigation of the claim.34 

                In   the   present   case,   Elliott   submitted   an   affidavit   for   the   earlier   post- 

conviction relief proceedings, but he was not a party there; instead that case was between 

Stewart and the State of Alaska.  And there was no privity between Elliott and the State. 

 First, Elliott's limited participation in post-conviction relief certainly did not allow him 

sufficient control to establish privity.  Second, there is no evidence that Elliott agreed to 

be bound by the post-conviction relief litigation. And finally, Elliott was not represented 
by the State in a capacity such as trustee, agent, or executor.35 

                We have held that merely serving as a witness in an earlier proceeding does 
not afford control over the litigation sufficient to establish privity,36 and the same logic 

applies to providing affidavit testimony.          While Elliott's affidavit may have given him 

        33      Alaska Foods, Inc. v. Nichiro Gyogyo Kaisha, Ltd., 768 P.2d 117, 122 

(Alaska 1989). 

        34      State, Dep't of Health & Soc. Servs., Office of Children's Servs. v. Doherty, 

167 P.3d 64, 72 (Alaska 2007). 

        35      See Powers, 6 P.3d at 298 (citing RESTATEMENT (SECOND) OF JUDGMENTS 

 39-42 (1982)). 

        36      Elliott, 569 P.2d at 1328 ("Elliott's participation in [the earlier case] was 

limited to testifying as a witness.  Elliott had no control over [the claim in that case].  In 
such circumstances he cannot be collaterally estopped."). 

                                                  -11-                                             6513
 

----------------------- Page 12-----------------------

some opportunity to explain his actions, it did not give him the opportunity to more 

broadly control the litigation.   He could not decide which general strategies to pursue in 

the litigation, what evidence to present, how to cross-examine adverse witnesses, or 

whether to settle the claim.  And we note that Elliott's interest in this present litigation 

- presumably the protection of his professional reputation and his personal assets - 

would     not   necessarily    have   been    those   of  the  State   in  the  post-conviction     relief 

proceeding.      Elliott did not have a chance to vigorously defend himself or his interests 

at the post-conviction relief stage.         Accordingly, Elliott's participation in the earlier 

proceeding does not give him the amount of control and discretion we require for privity, 

and it would not be fair for him to be bound by the post-conviction relief decision. 

                Our conclusion that Elliott was not in privity with the State during the post- 

conviction relief litigation squares with our recent decision in State, Department of 
Health and Social Services, Office of Children's Services v. Doherty.37   There we held 

that a decision against a state social service agency did not bind the state-employed social 
worker when she was subsequently sued in her individual capacity.38   We stated: 

                The majority of courts maintain that government employees, 
                in their individual capacities, are generally not in privity with 
                the government and are not bound by adverse determinations 
                against     the  government.       This    is  because    the   interests, 
                incentives, and immediate goals of a government employee 
                in his or her individual capacity will most often be dissimilar 
                from those of the government or even from those of that same 
                employee in his or her official capacity.           As a result, cases 
                brought by or against the government or its employees in 
                their   official   capacities   will   not   usually   provide   a   proper 
                forum   or   even   the   slightest   opportunity   for   a   government 

        37       167 P.3d 64. 

        38      Id. at 73. 

                                                   -12-                                               6513 

----------------------- Page 13-----------------------

                employee to protect his or her own personal interests. And as 
                a matter of sound policy, this is how it should be.  For when 
                the government enters the courthouse in order to prosecute 
                criminal conduct or protect a child in need of aid, it should 
                not be distracted from its purpose by the personal interests of 
                its employees.[39] 

Because Elliott is not a government employee, the above rationale applies to him even 

more forcefully.     As in Doherty, the government's interest was not necessarily aligned 

with   Elliott's.    The   State  could   not   chart   its   litigation   with   the   benefit   of   Elliott's 

firsthand knowledge of the actions and decisions during his representation of Stewart, nor 

would the State necessarily be motivated by Elliott's interest in protecting both his 

professional reputation and private assets.          Indeed, given Doherty's conclusion that a 

government worker does not sufficiently control an agency's litigation, it is untenable to 

conclude that a private citizen, without even an employer-employee relationship, could 

exert sufficient control to establish privity.          Further, the policy basis for the State's 

independence here is just as strong as that inDoherty: the State's ability to concede error 

should not be constrained by its need to protect the interests of a third party. 

                 Accordingly, because Elliott was neither a party to the post-conviction 

relief proceedings nor in privity with a party given his inability to control that litigation, 

collateral estoppel does not apply, and it was not error for Judge MacDonald to conclude 

that the post-conviction relief decision does not bind Elliott. 

        B.	     It Was Not Clearly Erroneous For The Superior Court To Find The 
                Evidence Insufficient To Establish Breach. 

                Stewart next claims that Judge MacDonald erred in his determination that 

Stewart failed to prove that Elliott breached his duty of care.  Because there is adequate 

        39      Id. at 72 (internal footnotes omitted). 

                                                  -13-                                               6513 

----------------------- Page 14-----------------------

evidentiary support in the record for Judge MacDonald's factual findings, his ruling that 

Stewart did not establish a breach of the duty of care must be upheld. 

                Elliott testified that at the time of the plea bargain he consulted with two 

experienced criminal defense attorneys about his strategy for the case and that neither of 

them noticed an issue regarding Daylight Saving Time.               Further, as the superior court 

noted, even Wildridge, Stewart's post-conviction relief attorney, failed to notice the issue 

at first and had moved to withdraw from the case due to the lack of colorable claims. This 

too supports the superior court's conclusion that Elliott's actions were not below the 

relevant standard of care.  Significantly, the Fowler decision, which contained the dicta 

about Daylight Saving Time, was not issued until May 2003, a year-and-a-half after 

Stewart entered his plea to a misdemeanor DUI in November 2001. 

                Moreover,   we   are   aware   of   no   authority   other   than   the  Fowler  dicta 

suggesting that the discrepancy between Daylight Saving Time and Alaska Standard 

Time has any impact on the effective time of new legislation.  As Elliott submitted to the 

superior court, federal law suggests that such a discrepancy does not exist.              According 

to the federal statute implementing Daylight Saving Time, "the standard time of each 

zone . . . shall be advanced one hour and such time as so advanced shall . . . be the 
standard   time   of   such   zone   during   [the   period   for   Daylight   Saving   Time]."40 The 

underlying question whether there is a discrepancy between Daylight Saving Time and 

Alaska Standard Time is not currently before this court, and we do not resolve that issue 

today.    But the evidence, taken as a whole, supports the superior court's finding that 

Stewart did not present sufficient evidence to show that a reasonable attorney would have 

raised the time discrepancy as an issue in the DUI prosecution.                 Because the record 

        40      15 U.S.C.  260a(a) (2007). 

                                                 -14-                                              6513 

----------------------- Page 15-----------------------

supports Judge MacDonald's ruling, we are not left with the conviction that a mistake has 
been made.41 

V.     CONCLUSION 

              Because Elliott was not a party to, nor in privity with a party to, the earlier 

post-conviction relief proceeding, issue preclusion does not bind him to the conclusions 

of that proceeding. Because adequate evidence supports Judge MacDonald's ruling that 

Stewart failed to prove a breach of an attorney's standard of care, we AFFIRM. 

       41     City of Hydaburg v. Hydaburg Coop. Ass'n, 858 P.2d 1131, 1135 (Alaska 

1993) (quoting Parker v. N. Mixing Co., 756 P.2d 881, 891 n.23 (Alaska 1988)) (We 
reverse under the clearly erroneous standard only if we are left "with 'a definite and firm 
conviction on the entire record that a mistake has been made.' "). 

                                            -15-                                         6513 
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