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

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


You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Larson v. State (6/10/2011) sp-6566

Larson v. State (6/10/2011) sp-6566, 254 P3d 1073

        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,   email 


LOREN J. LARSON, JR.,                              ) 
                                                   )    Supreme Court No. S-13917 
                        Appellant,                 ) 
                                                   )    Superior Court No.  3AN-10-06052 CI 
        v.                                         ) 
                                                   )   O P I N I O N 
STATE OF ALASKA,                                   ) 
                                                   )   No. 6566 - June 10, 2011 
                        Appellee.                  ) 

                Appeal from the Superior Court of the State of Alaska, Third 
                Judicial District, Anchorage, Frank A. Pfiffner, Judge. 

                Appearances: Loren J. Larson, Jr., pro se, Seward, Appellant. 
                John     W.    Erickson,     Jr.,  Assistant     Attorney     General, 
                Anchorage, and John J. Burns, Attorney General, Juneau, for 

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

                WINFREE, Justice. 


                Loren J. Larson, Jr. filed suit against the State of Alaska, alleging that the 

Alaska Court of Appeals violated its "duties to establish rules of law and declare what 

legal rights a citizen has" when it issued a decision affirming the dismissal of his petition 

for post-conviction relief from an earlier conviction for two murders and one burglary. 

The superior court ruled that Larson's suit was barred by both judicial immunity and res 

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

judicata. Larson appeals, but because the superior court did not err we affirm its decision. 


        A.       Facts 

                 A jury convicted Larson on two first-degree murder counts and one first- 
degree burglary count arising out of events occurring in 1996.1  He was sentenced to two 

consecutive 99-year terms for the murder counts and a 10-year concurrent term for the 
burglary count.2     In 2000 the court of appeals affirmed Larson's conviction.3 

                 About a year later Larson filed an application for post-conviction relief, 

relying on affidavits from jurors and alternate jurors alleging juror misconduct prior to 
and during deliberations in his trial.4         The superior court rejected the juror affidavits 

under   Alaska   Evidence   Rule   606(b)5       and   dismissed   his   petition.6   Larson   appealed, 

        1       Larson v. State (Larson I), Mem. Op. & J. Nos. A-7032, A-4171, 2000 WL 

 19199, at *1 (Alaska App. Jan. 12, 2000). 

        2       Id. at *2. 

        3       Id. at *1. 

        4       Larson v. State (Larson II), 79 P.3d 650, 652 (Alaska App. 2003).  Larson 

argued that a number of jurors violated jury instructions by: (1) forming and announcing 
opinions about his guilt before the case was submitted to the jury; (2) discussing the 
merits   of   the   case   before   it   was   submitted   to   the   jury;   and   (3)   relying   on   personal 
knowledge, rather than trial evidence, regarding how loud a .22 caliber rifle shot would 
be. Id. Larson also asserted that some jurors "improperly declared or apparently agreed" 
that (1) his decision not to testify indicated his guilt and (2) his wife's absence from the 
courtroom indicated she believed he was guilty.  Id. 

        5        Evidence Rule 606(b) provides, in relevant part: 

                Upon an inquiry into the validity of a verdict . . . , a juror may 
                 not be questioned as to any matter or statement occurring 
                 during the course of the jury's deliberations . . . , except that 
                 a   juror  may    testify  on   the  question    whether    extraneous 

                                                   -2-                                                6566 

----------------------- Page 3-----------------------

arguing in relevant part that Evidence Rule 606(b) prohibits using juror affidavits to 

attack a verdict only when those affidavits describe misconduct occurring during but not 
before     the   jury's    formal    deliberations.7       The    court    of  appeals     rejected    Larson's 

interpretation of the evidence rule, holding "the admissibility of juror affidavits under 

Rule   606(b)   turns   on   the  type  of   impropriety   they   describe,   not   the   timing   of   that 
impropriety."8       But in addressing Larson's argument the court parenthetically noted: 

                  Because Larson relies in part on the affidavits of two alternate 
                 jurors,     one    additional     question     is  potentially     raised    by 
                  Larson's   case:       whether   Evidence   Rule   606(b)   applies   to 
                  evidence   offered   by   alternate   jurors   as   well   as   evidence 
                  offered by the jurors who ultimately decide the case.                   Both 
                  Larson   and   the   State   assume   that   Rule   606(b)   applies   to 
                  alternate     jurors,   and    our   limited    research     on   this   issue 
                  supports the parties' position.          See State v. Reiner, 89 Ohio 
                  St. 3d 342, 731 N.E.2d 662, 670-73 (2000).                    We therefore 
                  assume, for purposes of this case, that Evidence Rule 606(b) 
                                                                                              [  ] 
                  governs testimony or affidavits supplied by alternate jurors. 9 

                  Because Larson's juror affidavits described matters "that 'inhere' in the 

jury's decision-making process" and did not fall under Rule 606(b)'s express exceptions 

for "extraneous prejudicial information" or "outside influence," the court of appeals held 

         5	       (...continued) 

                  prejudicial information was improperly brought to the jury's 
                  attention or whether any outside influence was improperly 
                  brought to bear upon any juror.            Nor may a juror's affidavit 
                  or evidence of any statement by the juror concerning a matter 
                  about which the juror would be precluded from testifying be 
                  received for these purposes. 

         6	       Larson II, 79 P.3d at 652. 

         7	       Id. 

         8	       Id. at 653 (emphasis in original). 

         9        Id. at 655. 

                                                       -3-                                                    6566 

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

Rule 606(b) precluded Larson from offering the affidavits to support his juror misconduct 

allegations; it therefore affirmed the superior court's dismissal of Larson's application 
for post-conviction relief.10 

                Larson filed a petition for hearing, asking us to review whether Rule 606(b) 

precluded admission of juror evidence showing misconduct that occurred prior to the 

jury's deliberations.      Larson did not expressly ask us to review the court of appeals's 

treatment of Rule 606(b)'s application to alternate jurors.  We denied Larson's petition 

for hearing. 

        B.      Proceedings 

                In   January   2010   Larson   filed   a   pro   se   civil   complaint,   naming   "the 

Appellate Court for the State of Alaska" as the defendant.             Larson alleged the court of 

appeals had violated its "duties to establish rules of law and declare what legal rights a 

citizen has according to that rule."   Larson identified the source of the court's duties as 

the preamble to the Alaska Code of Judicial Conduct.               He asked the superior court to 

undertake declaratory judgment proceedings to determine whether Evidence Rule 606(b) 

applies to alternate juror testimony and affidavits. 

                In lieu of answering Larson's complaint the State filed an Alaska Civil Rule 

 12(b)(6) motion to dismiss for failure to state a claim for relief, asserting that (1) "the 

Court of Appeals is protected from suit for its judicial acts by judicial immunity"; (2) the 

Alaska Code of Judicial Conduct does not provide a legal basis for civil liability; and (3) 

Larson     was    asking   for   an  advisory    opinion.    Larson      responded     that  he   had   a 

constitutional right to have the court interpret the law and declare his rights and moved 

to amend his complaint under Rule 15 to clarify that the sources of the duties alleged in 

        10      Id. at 653-60. 

                                                  -4-                                               6566 

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

his complaint were constitutional.11       The State did not take a position on Larson's motion 

to amend, arguing that the amended complaint "suffer[ed] from the same fatal defects as 

his initial complaint" with respect to absolute judicial immunity and required dismissal. 

                The superior court granted the State's motion to dismiss without mentioning 

Larson's motion to amend his complaint.             The court explained that:       (1) to the extent 

Larson asserted a claim against the State based on the conduct of judges, it was barred 

by judicial immunity; and (2) to the extent Larson asked the superior court to rule on 

Evidence Rule 606(b), it was barred by res judicata. 

                Larson appeals the superior court's dismissal of his complaint.               Because 
Larson   had   the   right   to   amend   his   complaint   as   a   matter   of   course12  and   Larson's 

constitutional arguments were raised in his opposition to the motion to dismiss, we treat 

the superior court's dismissal order as directed at the amended complaint and will review 

the dismissal order accordingly. 


                "We   review de novo an order dismissing a complaint on the basis of Civil 
Rule 12(b)(6) for failure to state a claim upon which relief can be granted."13                "When 

reviewing an order on a motion to dismiss, we deem all facts in the complaint to be true 

        11      Larson added allegations that the court of appeals violated article IV of the 

Alaska Constitution, which established the state judiciary, and article III of the U.S. 
Constitution, which established the federal judiciary.  He abandoned his allegation that 
the court of appeals violated the preamble to the Alaska Code of Judicial Conduct. 

        12      Alaska R. Civ. P. 15(a) (allowing one pleading amendment as matter of 

course before service of responsive pleading). 

        13      Pepper v. Routh Crabtree, APC, 219 P.3d 1017, 1020 (Alaska 2009) (citing 

Vanek v. State, Bd. of Fisheries, 193 P.3d 283, 286 (Alaska 2008)). 
                                                  -5-                                               6566 

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

and provable."14    "We will affirm a superior court's grant of a motion to dismiss only if 

it appears beyond doubt that the plaintiff can prove no set of facts that would entitle [the 
plaintiff] to relief."15 


                We affirm the superior court's dismissal of Larson's amended complaint 

for failure to state a claim for relief for the following reasons. 

        A.      Judicial Immunity 

                To the extent Larson seeks relief against the court of appeals, the doctrine 

of absolute judicial immunity applies:  "Judicial immunity protects judges from liability 

for their judicial acts, and hence a judge will only be liable if the judge's actions were not 
'judicial' or were outside of the judge's subject matter jurisdiction."16   "Only judicial 

actions taken in the clear absence of all jurisdiction will deprive a judge of absolute 
immunity."17    "An absolute immunity defeats a suit at the outset so long as the official's 

actions were within the scope of the immunity."18 

                 Larson nonetheless asserts the superior court erred by determining the 

court of appeals acted within its judicial capacity in deciding his post-conviction-relief 

appeal, arguing that the court of appeals failed to perform its constitutional duty to 

interpret Evidence Rule 606(b). The act at issue is the court of appeal's assumption "that 

        14      Id. (citing  Vanek, 193 P.3d at 286). 

        15      Id. (citing  Valdez Fisheries Dev. Ass'n v. Alyeska Pipeline Serv. Co., 45 

P.3d 657, 664 (Alaska 2002)). 

        16      Weber v. State, 166 P.3d 899, 902-03 (Alaska 2007) (citing DeNardo v. 

Michalski, 811 P.2d 316 (Alaska 1991)). 

        17      Christoffersen v. State, Court Custody Investigator's Office, 242 P.3d 1032, 

1035 (Alaska 2010) (quoting Trapp v. State, 53 P.3d 1128, 1129 (Alaska 2002)). 

        18      Greywolf v. Carroll, 151 P.3d 1234, 1247 n.54 (Alaska 2007) (quoting 

Imbler v. Pachtman, 424 U.S. 409, 419 n.13 (1976)). 
                                                 -6-                                             6566 

----------------------- Page 7-----------------------

Evidence   Rule   606(b)   governs   testimony   or  affidavits   supplied   by   alternate   jurors" 

because both Larson and the State made such an assumption and "limited research" 
supported the parties' position.19  We conclude this act was judicial in nature because it 

was a substantive decision regarding how to treat evidence when the court made its legal 

determinations and it was "properly within the scope and . . . a routine exercise of [the 
court's] jurisdiction and authority."20   Accordingly the superior court correctly applied 

the doctrine of absolute judicial immunity as a ground to dismiss Larson's suit. 

         B.      Res Judicata 

                 To the extent Larson seeks a binding judicial determination against the State 

as   an   indirect   attack   on   his   original   conviction   or   a   denial   of   his   subsequent   post- 

conviction-relief petition, without regard to specific relief against the court of appeals, 

the doctrine of res judicata applies.  "A prior judgment extinguishes all claims including 

 'rights of the plaintiff to remedies against the defendant with respect to all or any part of 
the   transaction   .   .   .   out   of   which   the   action   arose.'   "21 "[R]es   judicata   precludes 

relitigation by the same parties, not only of claims raised in the first proceeding, but also 
those relevant claims that could have been raised."22                Res judicata bars a subsequent 

action when there is   "(1) a final judgment on the merits, (2) from a court of competent 

jurisdiction, (3) in a dispute between the same parties (or their privies) about the same 

         19      Larson II, 79 P.3d at 655. 

         20      See Weber, 166 P.3d at 903.           The court of appeals had jurisdiction over 

Larson's appeal under AS 22.07.020(a)(2), which grants the court of appeals appellate 
jurisdiction in superior court post-conviction-relief actions. 

         21      Id. at 902 (quotingNelson v. Jones, 787 P.2d 1031, 1033-34 (Alaska 1990)). 

         22      DeNardo  v. State, 740 P.2d 453, 456 (Alaska 1987) (citing Calhoun v. 

Greening, 636 P.2d 69, 72 (Alaska 1981)). 
                                                    -7-                                                 6566 

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

cause of action."23 

                First, the earlier proceeding resulted in a final judgment on the merits, 

which held that Larson's juror affidavits were not admissible under Evidence Rule 606(b) 
to show juror misconduct in order to attack the jury's verdict.24   Larson's Rule 606(b) 

claim in his declaratory judgment action arose out of the same transaction as his original 
claim - alleged juror misconduct - and he needed to raise it in the earlier proceeding.25 

Second, the superior court had jurisdiction to rule on Larson's original post-conviction- 
relief application and the court of appeals had jurisdiction to rule on the appeal.26  Third, 

Larson's claims for post-conviction relief and declaratory relief involve the same parties: 
Larson is the plaintiff and the State is the defendant.27   Accordingly the superior court 

correctly applied the doctrine of res judicata as a ground to dismiss Larson's suit. 

        C.      Lack Of Ripeness 

                Finally, Larson asks whether Evidence Rule 606(b) applies to alternate juror 

        23      Angleton v. Cox, 238 P.3d 610, 614 (Alaska 2010) (citing Smith v. C.S.K. 

Auto, Inc., 132 P.3d 818, 820 (Alaska 2006)). 

        24      Larson II, 79 P.3d at 653. 

        25      See Weber, 166 P.3d at 902. 

        26      AS 22.10.020(a) (superior court jurisdiction); AS 22.07.020(a)(2) (court of 

appeals jurisdiction). 

        27      See Alaska Wildlife Alliance v. State, 74 P.3d 201, 208 (Alaska 2003) ("Res 

judicata is not defeated by substituting one state entity for another when the claim is 
based on the same conduct, and when the same defense of non-justicability applies 
regardless of which specific state entity is named as a defendant."); see also Mathis v. 
Laird, 457 F.2d 926, 927 (5th Cir. 1972) (holding res judicata barred former soldier's suit 
against   Secretary   of  Defense   because   prior   suit   named   United   States   as   defendant); 
Tabman v. U.S. Dep't of Justice, 722 F. Supp. 2d 113, 116 & n.2 (D.D.C. 2010) (holding 
Federal Bureau of Investigation and Department of Justice were same party or in privity 
for claim preclusion purposes and noting claim would also be barred if plaintiff named 
United States as defendant). 
                                                  -8-                                               6566 

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

affidavits. To the extent Larson seeks a determination for use in some future unspecified 

action in which res judicata might not apply, his action is dismissable for lack of an 

actual dispute between the parties.          Notwithstanding our general leniency toward the 
ripeness   threshold   for   maintaining   an   action,28    Larson   seeks   declaratory   judgment 

without an active controversy to place it in context.  Courts do not lightly issue advisory 
opinions;29 this further supports the superior  court's dismissal of Larson's amended 



                We AFFIRM the superior court's dismissal of Larson's amended complaint 

for failure to state a claim for relief. 

        28      See State v. ACLU of Alaska, 204 P.3d 364, 368-69 (Alaska 2009) ("[W]hile 

Alaska's   standing   rules   are   liberal   this   court   should   not   issue   advisory   opinions   or 
resolve abstract questions of law." (quotingBowers Office Prods., Inc. v. Univ. of Alaska, 
755 P.2d 1095, 1097-98 (Alaska 1988))). 

        29      Id. 

                                                  -9-                                               6566 
Case Law
Statutes, Regs & Rules

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

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights