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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. State v. Doe (3/15/2013) sp-6758

State v. Doe (3/15/2013) sp-6758

        Notice:  This opinion is subject to correction before publication in the PACIFIC  REPORTER . 

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STATE OF ALASKA,                                ) 

                                                )        Supreme Court No. S-14486 

                        Appellant,              ) 

                                                )        Superior Court No. 3AN-10-12131 CI 


JOHN DOE A and JOHN DOE B,                      )        O P I N I O N 


                        Appellees.              )       No. 6758 – March 15, 2013 


                Appeal from the Superior Court of the State of Alaska,  Third 

                Judicial District, Anchorage, Frank A. Pfiffner, Judge. 

                Appearances:         Eric    A.   Ringsmuth,      Assistant    Attorney 

                General,      Office    of   Special    Prosecutions      &    Appeals, 

                Anchorage,       and  Michael     C.  Geraghty,    Attorney    General, 

                Juneau,    for  Appellant.      Darryl   L.  Thompson,       Darryl    L. 

                Thompson, P.C., Anchorage, for Appellees. 

                Before:  Fabe, Chief Justice, Winfree and Maassen, Justices, 

                and Matthews and Eastaugh, Senior Justices.*           [Carpeneti and 

                Stowers, Justices, not participating.] 

                PER CURIAM. 


                John   Doe   A   and   John   Doe   B   were   convicted   of   criminal   offenses   that 

required   them   to   register   and   comply   with   Alaska’s   Sex   Offender   Registration   Act 

        *       Sitting   by   assignment   made   under   article   IV,   section   11   of   the   Alaska 

Constitution and Alaska Administrative Rule 23(a). 

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

(ASORA).       Following their convictions, the legislature amended ASORA, requiring 

certain   offenders,   including   both   John   Does,   to   comply   with   additional   registration 

requirements.      The John Does sued, claiming that retroactive application of ASORA’s 

amendments to them violated the Ex Post Facto Clause of the Alaska Constitution.  The 

superior court agreed, and the State appealed. 

                In   2008   we   held   in  Doe   v.   State (Doe   I),   a   two-to-one   decision,   that 

ASORA’s amendments violated the Ex Post Facto Clause and do not apply to persons 

who committed their crimes before the amendments became effective.1                 Two years later 

we promulgated Alaska Appellate Rule 106, which provides that any issue decided by 

a two-to-one vote shall not have precedential effect.2         When we promulgated Appellate 

Rule 106 we were silent on the question whether that rule might have retroactive effect. 

We now hold that our two-to-one decision in Doe I is binding precedent that controls the 

outcome of this case because Appellate Rule 106 does not have retroactive application. 


                In 1994 the Alaska Legislature enacted ASORA, which required convicted 

sex offenders to register with the Alaska Department of Corrections, the Alaska State 

Troopers, or local police.3     ASORA went into effect in August 1994.4 

                John Doe A was convicted of a single aggravated sexual offense for an act 

committed in 1995.  Because of his conviction, Doe A was required to register annually 

        1       Doe v. State , 189 P.3d 999, 1000 (Alaska 2008).

      Alaska Supreme Court Order No. 1742 (Nov. 10, 2010); Alaska R. App. 

P. 106(b) (2010). 

        3       Ch. 41, §§ 1-14, SLA 1994. 

        4       Id. 

                                                 -2-                                            6758

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as a sex offender for 15 years.5      John Doe B was convicted of a misdemeanor attempt to 

commit a sexual offense for conduct that occurred in 1996.  Doe B’s conviction required 

him to register annually as a sex offender for 15 years.6             On the dates both men were 

convicted,   ASORA         required   them   to  provide    certain  information     including    name, 

address, place of employment, date of birth, date and nature of conviction, alias used, and 

driver’s license number.7 

                After both men were convicted, the Alaska Legislature amended ASORA. 

Amendments passed in 1998 required certain sex offenders to register quarterly, instead 

of   annually,   and   increased   registration   periods   for   certain   sex   offenders   to   lifetime 

registration.8    The     amendments      also   required   sex   offenders    to  provide   additional 

information,      including    information     about   mental    health    treatment.9     Subsequent 

amendments   required   sex   offenders   to   provide   email   addresses,   instant   messaging 

addresses, and other “[i]nternet communication identifier[s]” and expressly authorized 

the Department of Public Safety to publish certain information on the internet.10  Because 

he was convicted of an aggravated sex offense, John Doe A was subject to the new 

quarterly and lifetime registration requirements.            Additionally, both John Does were 

required to provide additional information under the amended law. 

        5       Former AS 12.63.010(d) (1995); former AS 12.63.020(a)(2) (1995).

        6       Id.

      Former AS 12.63.010(b)(1) (1995). 

        8       Ch. 106, §§ 10, 12, SLA 1998. 

        9       Ch. 106, § 8, SLA 1998. 

        10      Ch. 14, § 12, SLA 2006; ch. 42, § 3, SLA 2008. 

                                                  -3-                                             6758

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                 John Doe A and John Doe B sued, claiming that, because their convictions 

occurred      before    ASORA       was    amended,     applying     the   amended      registration    and 

information   requirements   to   them   violated   the   Ex   Post   Facto   Clause   of   the   Alaska 

Constitution.11      The    John    Does    sought    a  declaratory    judgment     and   an  injunction 

prohibiting the new requirements from being applied to them. The parties agreed to treat 

the John Does’ motion for a preliminary injunction as a motion for summary judgment. 

The State filed a cross-motion for summary judgment, arguing that ASORA was not 

punitive   and   that   retroactive   application   therefore   did   not   violate   the   Ex   Post   Facto 


                 The    superior    court    concluded     that   ASORA       was    punitive    and   that 

“retroactive application of any amendments that extend [the John Does’] registration 

period or increase re-registration frequency violate[d]” the Ex Post Facto Clause.  But 

the superior court also concluded that amendments requiring disclosure of additional 

personal information and directing that information be made available on the internet 

were “administrative and nonpunitive” when applied to offenders who were already 

subject to ASORA’s reporting requirements. The superior court therefore concluded that 

these administrative amendments did not violate the Ex Post Facto Clause. 

                 The State appeals the superior court’s ruling that retroactive application of 

amendments increasing registration frequency and duration violate the Ex Post Facto 

Clause.  The John Does do not appeal any part of the superior court’s ruling.12 

        11       Alaska Const. art. I, § 15. 

        12       In   their   brief,   the   John   Does   suggest   that   the   superior   court   erred   in 

concluding that requiring them to disclose additional information and publishing their 

information   on   the   internet   did   not violate   the   Ex   Post   Facto   Clause.  But   we   have 

“consistently held that failure to file a cross-appeal waives the right to contest rulings 

below.”  Peterson v. Ek , 93 P.3d 458, 467 (Alaska 2004) (citing cases).  Consequently, 


                                                    -4-                                              6758

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                We apply our independent judgment to questions of law.13              We will adopt 

“the rule of law which is most persuasive in light of precedent, reason, and policy.”14 


        A.      Our Decision In Doe I Is Binding Precedent. 

                We have decided this issue before.  In Doe I ,15 we concluded that ASORA 

was punitive, and that its retroactive application therefore violated the Ex Post Facto 

Clause of the Alaska Constitution.16        This case deals with an amendment extending the 

length and increasing the frequency of registration, while Doe I dealt with ASORA itself. 

But as the superior court said in this case, “[r]egistration is the fundamental obligation 

for convicted sex offenders under ASORA. That obligation triggers all other obligations 

under the Act.  If ASORA is punitive in effect, any extension of ASORA’s registration 

frequency   and   period   increases   that   punishment   and   ‘makes   more   burdensome   the 

punishment   for   a   crime.’   ”  The   State,   however,   argues   that  Doe   I   is   not   binding 

precedent because it was decided by a two-to-one majority. 

                Although we have not expressly addressed the question whether a two-to­ 

one majority decision of our court creates binding precedent, our case law illustrates how 

two-to-one   decisions,   though   uncommon,   have   been   given   de   facto   recognition   as 


we decline to address this argument. 

        13      Ford   v.   Municipality   of   Anchorage ,   813   P.2d   654,   655   (Alaska   1991) 

(citing Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979)). 

        14      Id. 

        15      189 P.3d 999 (Alaska 2008). 

        16      Id. at 1019. 

                                                  -5-                                            6758

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

binding precedent.  In  Worthy v. State, at a time when the full court normally consisted 

of five members,17 we decided an evidentiary issue in a criminal case by a two-to-one 

majority.18    Subsequently, in Loncar v. Gray , we cited the majority decision in Worthy 

to   support   our   statement   that   “[u]nder   our   case   law,   a   party   may   open   the   door   to 

evidence      on  a  subject   by   putting   that  subject   at  issue   in  the  case.”19   We     then 

distinguished the facts in Loncar from those in  Worthy.20            At no point in our discussion 

did we suggest that  Worthy was anything other than binding precedent.  Similarly, in 

Hess v. State , we analyzed the case based on the rule of law established in Worthy.21  We 

repeated   language   from     Worthy  in   explaining   how   the   two   cases   were   conceptually 

identical.22   In   other   words,   we   treated Worthy as   binding   precedent.       This   reliance 

indicates that after the court’s membership increased to five, we have at least tacitly 

treated two-to-one decisions as precedential.23 

        17      When Alaska became a state, this court comprised three justices.  Alaska 

Const. art. IV, § 2.  The legislature increased the membership of justices on the court to 

five on December 1, 1968.         Ch. 83, § 1, SLA 1967. 

        18      999 P.2d 771 (Alaska 2000). 

        19      28 P.3d 928, 932 n.7 (Alaska 2001). 

        20      Id. at 932. 

        21      20 P.3d 1121, 1129-30 (Alaska 2001). 

        22      Compare Worthy, 999 P.2d at 775 (“Because the state made [a witness’s] 

testimony . . . an integral part of its case against Worthy, [potentially contradictory] 

testimony might have substantially affected the jury’s verdict.”), with Hess , 20 P.3d at 

1129 (partially quoting the above and continuing “[l]ikewise, the state made A.R.’s 

testimony an ‘integral part’ of its case against Hess in the H.W. case”). 

        23      Similarly, our two-to-one decision in Doe I was subsequently treated as 

binding precedent by the Alaska Court of Appeals.              See Holden v. State, 190 P.3d 725, 


                                                   -6-                                             6758

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                The State correctly points out that we have, on   a number of occasions, 

concluded      that  two-to-two     decisions    have   no  precedential     value.24   But   we   have 

explained that a two-to-two decision does not create binding precedent because it lacks 

a majority position.      In City of Kenai v. Burnett, we recognized that because we were 

“evenly divided,” the “particular issue of law . . . remain[ed] undecided.”25              The ruling 

of the trial court was thus affirmed “because ‘that which has been done [by the trial 

court] must stand unless reversed by the affirmative action of a majority.’ ”26                   More 

recently, in In re Adoption of Erin G. ,27 we discussed the lack of precedential value of 

In re Adoption of T.N.F. ,28  an earlier case in which two of the four participating justices 

agreed that Alaska’s one-year statute of limitations applied to claims brought under 

§ 1914 of the Indian Child Welfare Act.             One justice concurred in the result in T.N.F. 

without discussing the merits of the statute of limitations question,29 and one justice 


732 (Alaska App. 2008) (“[T]he supreme court’s recent decision in Doe  —                       i.e., the 

decision   that   sex   offender   registration   is   a   ‘punishment’   for   purposes   of   our   state 

constitution’s  ex     post   facto   clause  —   means   that   the  superior    court’s   decision   in 

Holden’s case was wrong.”). 

        24      See, e.g., Evans ex rel. Kutch v. State, 56 P.3d 1046, 1070 n.140 (Alaska 

2002) (citing Ward v. Lutheran Hosps. & Homes Soc’y of Am., Inc., 963 P.2d 1031, 1037 

n.11 (Alaska 1998)); City of Kenai v. Burnett, 860 P.2d 1233, 1239 n.11 (Alaska 1993). 

        25      860 P.2d at 1239 & n.11. 

        26      Id. (quoting Hertz v. Woodman , 218 U.S. 205, 212 (1910)). 

        27      140 P.3d 886, 890 (Alaska 2006). 

        28      781 P.2d 973, 981 (Alaska 1989). 

        29      Id. at 982-84 (Compton, J. concurring). 

                                                  -7-                                             6758

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

dissented.30   We concluded in Erin G. that “[b]ecause a majority ofparticipating justices 

in T.N.F. did not agree on any one ground for affirmance, we [would] not accord T.N.F. 

stare decisis effect.”31 

                We now take the opportunity to expressly state that holdings by a two-to­ 

one majority of this court have precedential effect if made before November 10, 2010, 

the date that Appellate Rule 106 was promulgated. Our decision in Doe I is thus binding 


        B.      Appellate Rule 106 

                Appellate Rule 106(b) provides that “[i]n an appeal that is decided with 

only three of five supreme court justices participating, any issue or point on appeal that 

the court decides by a two-to-one vote is decided only for purposes of that appeal, and 

shall   not   have   precedential    effect.”33   As    noted   above,   the   rule  went   into  effect 

        30      Id. at 984-85 (Rabinowitz, J. dissenting). 

        31      140 P.3d at 890.       It is also worth noting that in Erin G. we cited Negri v. 

Slotkin, 244 N.W.2d 98, 100 (Mich. 1976) — a prominent Michigan case holding that 

decisions of a minority of sitting justices who nevertheless constitute a majority of a 

quorum are binding precedent — in support of our decision to deny stare decisis where 

a majority of participating justices did not agree on any one ground for affirmance. 

        32      Doe   I   controls   the   outcome   of   this   case   absent   compelling   reasons   to 

overrule that decision.   In its briefing, the State argues that Doe I was wrongly decided. 

Because the State has not convinced us that more good than harm would result from a 

departure from precedent, see May v. State, Commercial Fisheries Entry Comm’n , 168 

P.3d 873, 884 (Alaska 2007), we decline to overrule our decision in Doe I . 

        33      Alaska R. App. P. 106(b). 

                                                  -8-                                             6758

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

November 10, 2010,34 more than two years after Doe I was decided.35 

                Based on Appellate Rule 106(b), the State argues that Doe I should not be 

treated as binding precedent.        The John Does respond that Appellate Rule 106(b) was 

adopted following Doe I and that the rule should not be retroactively applied to nullify 

an opinion’s precedential value.         The John Does rely on this country’s “deeply rooted 

presumption against retroactive legislation,” AS 01.10.090,36 and Alaska Administrative 

Rule   44(j)37  for   their   argument   that   “a   new   [substantive]   law   may   not   be   applied 

retroactively unless specifically intended.”   The John Does further argue that Appellate 

Rule   106(b)   is   substantive   because   it   “change[s]   the   number   of   judges   required   to 

constitute a quorum needed to enter binding decisions and modify or enforce the rule of 


                The State responds that “the court rule at issue here is a rule of procedure” 

and that a “change in a rule of procedure is ordinarily applied retroactively.”  The State 

also argues that the post-adoption history of Appellate Rule 106 clearly indicates that we 

intended it be retroactive. The State finally argues that, because the John Does’ case was 

filed after Appellate Rule 106(b) went into effect, it is not retroactive to apply the rule 

to their case. 

        34      Alaska Supreme Court Order No. 1742 (Nov. 10, 2010). 

        35      Doe v. State , 189 P.3d 999 (Alaska 2008). 

        36      “No      statute   is   retrospective     unless     expressly     declared     therein.” 

AS 01.10.090. 

        37      “The effective date for each rule change order shall be stated in the order. 

Normally, the effective date shall be the same as the publisher’s distribution date, in 

order to provide adequate notice to those affected by the rule change.”                Alaska Admin. 

R. 44(j). 

                                                   -9-                                             6758

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                “[T]he presumption against retroactive legislation is deeply rooted in our 

jurisprudence, and embodies a legal doctrine centuries older than our Republic.” 38                 And 

AS   01.10.090   provides   that   “[n]o   statute   is   retrospective   unless   expressly   declared 

therein.”39    But “[c]hanges in procedural rules may often be applied in suits arising 

before their enactment without raising concerns about retroactivity.”40                 Thus, whether 

Appellate Rule 106(b) applies retroactively depends on whether the rule is substantive 

or procedural and, if substantive, on whether we expressly declared that it would apply 


        38      Landgraf v. USI Film Prods. , 511 U.S. 244, 265 (1994). 

        39      In Supreme Court of Virginia v. Consumers Union of the United States, 

Inc. , the United States Supreme Court held that the Virginia Supreme Court was acting 

as a legislature when it adopted court rules.          446 U.S. 719, 731 (1980).         Following on 

this, the John Does maintain that the regular rules for interpreting statutes apply also to 

court rules.    The State makes no response to this argument.                Nothing in the Rules of 

Administration   suggests   otherwise,   nor   is   there   anything   in   the   Rules   of   Appellate 

Procedure,   nor   the   Rules   of   Administration,   which   suggests   a   rule   of   interpretation 

contrary to AS 01.10.090. See Alaska Admin. R. 44(j); Alaska R. App. P. 521.  We note 

further that Black’s Law Dictionary defines “statute” as “[a] law passed by a legislative 

body;     specif.,  legislation   enacted    by  any   lawmaking      body,    including    legislatures, 

administrative   boards,   and   municipal   courts.”       BLACK ’S  LAW     DICTIONARY          1542-43 

(9th ed. 2009). Court rules fall comfortably within this definition. Finally, AS 01.10.090 

appears to be little more than a codification of principle “deeply rooted in [American] 

jurisprudence.”     Landgraf , 511 U.S. at 265.         Accordingly, we will apply AS 01.10.090 

to interpret Appellate Rule 106(b). 

        40      Landgraf , 511 U.S. at 275; see also Matanuska Maid, Inc. v. State , 620 

P.2d 182, 187 (Alaska 1980) (holding that “mere procedural changes which do not affect 

substantive rights are not immune from retrospective application”). 

                                                  -10-                                             6758

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                 1.      Appellate Rule 106(b) is substantive. 

                 To determine whether Appellate Rule 106(b) is retroactive, we turn first to 

whether   the   rule   is   substantive   or   procedural.   The   John   Does   argue   that   Appellate 

Rule   106(b)   is   substantive   because   it   “change[s]   the   number   of   judges   required   to 

constitute a quorum needed to enter binding decisions and modify or enforce the rule of 

law.” The John Does also assert that applying Appellate Rule 106(b) retroactively would 

unsettle   established     precedent.     The    State   responds   that   Appellate   Rule     106(b)    is 

procedural for two reasons:  first, it is a “Rule of Appellate Procedure ,” and second, “the 

rule only addresses procedural concerns (the number of justices necessary to establish 

the precedential effect of a decision).” 

                 The State’s arguments as to why Appellate Rule 106(b) is procedural are 

unpersuasive.  Although the State correctly points out that the rule is styled as a rule of 

appellate procedure, this is not dispositive.   Just as the State argued in the superior court 

that ASORA’s placement in the criminal code does not necessarily make it punitive, 

Appellate   Rule   106(b)’s   placement   in   the   Rules       of   Appellate   Procedure   does   not 

necessarily     make    it   procedural.    Our    procedural   rules    contain    provisions    that   are 

substantive in nature.       For example, in State v. Native Village of Nunapitchuk, we held 

that the public interest litigant exception to Alaska Civil Rule 82, which shields losing 

public interest litigants from adverse awards of attorney’s fees, is substantive law.41 

                 In  Ware   v.   City   of   Anchorage,   we   stated   that   “substantive   law   creates, 

defines and regulates rights, while procedural law prescribes the method of enforcing 

rights.”42  In Nolan v. Sea Airmotive, Inc. , we added to the Ware test, requiring courts to 

        41       156 P.3d 389, 403-04 (Alaska 2007). 

        42      Id. at 396 (quoting  Ware v. City of Anchorage, 439 P.2d 793, 794 (Alaska 


                                                   -11-                                                6758 

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focus on whether the statute or rule is primarily concerned with public policy or an 

effective and efficient system for the administration of justice.43            Then, in Pan Alaska 

Trucking, Inc. v. Crouch, we concluded that “a change in a procedural rule is substantive 

in character where the change makes it appear to one just starting down the road to 

vindication of his cause that the road has become more difficult to travel or the goal less 

to be desired.”44 

                Applying   the   principles   from    Ware, Nolan , Pan   Alaska   Trucking ,   and 

Native Village of Nunapitchuk , we conclude that the change to Appellate Rule 106(b) is 

substantive.    Attorneys, litigants, and courts have relied on our two-to-one decisions 

made prior to the promulgation of Appellate Rule 106(b) as binding precedent.  To 

retroactively remove the precedential value of these decisions would eliminate the rights 

created by these decisions.  A change in the number of Supreme Court justices required 

to create binding precedent also does not primarily concern the effective and efficient 

administration of justice. On the contrary, a change to an Appellate Rule that necessarily 

changes the precedential value of rules of law established in our prior decisions primarily 

concerns public policy.       For example, eliminating the precedential value of our Doe I 

decision   would   leave   individuals   convicted   of   sex   offenses   before   the   date   that   the 

legislature amended ASORA unsure about whether and for how long they must register 

as sex offenders.45    This concerns a matter of policy that is extrinsic to judicial business. 

        43      Id. at 398 (citing Nolan v. Sea Airmotive, Inc. , 627 P.2d 1035, 1042-43 

(Alaska 1981)). 

        44      773 P.2d 947, 949 (Alaska 1989). 

        45      See Doe I, 189 P.3d 999, 1019 (Alaska 2008) (concluding in a two-to-one 

decision that ASORA’s registration, disclosure, and dissemination provisions violate the 

protection against ex post facto laws afforded by the Alaska Constitution as it applies to 


                                                  -12-                                            6758

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Finally, removing the precedential value of our prior two-to-one decisions would affect 

the legal consequences of events for litigants who could no longer depend on previously 

settled law to advance their claims or defenses. 

                Thus, although the State argues that the number of justices required to make 

binding opinions “only addresses procedural concerns,” the foregoing discussion shows 

the contrary.    We conclude that Appellate Rule 106(b) is substantive. 

                2.	      In promulgating Appellate Rule   106(b), we did not expressly 

                         declare that it would apply retroactively. 

                Although       substantive,    Appellate     Rule    106(b)    may    still  be  applied 

retroactively if we “expressly declared therein” that it applies retroactively when we 

promulgated the rule.46      As the John Does point out, when we adopt a rule, “the effective 

date [is] specifically expressed in the order amending the rule.”47             The effective date on 

our order promulgating Appellate Rule 106 was November 10, 2010.48                   According to the 

John Does, this should end the inquiry as to our intent. 

                But   the   State   points   out   that   after   Appellate   Rule   106(b)   was   initially 

adopted, the question was raised as   to whether it applied to decisions issued before 

December 1, 1968, when the court had only three justices.49             In response to this concern, 


defendants who committed their crimes before the legislature enacted ASORA). 

        46	     AS 01.10.090. 

        47	     See Alaska Admin. R. 44(j). 

        48      Alaska Supreme Court Order No. 1742 (Nov. 10, 2010). 

        49      The initial version of the rule stated:   “In an appeal that is decided by three 

justices in the supreme court, any issue or point on appeal that the court decides by a 

two-to-one      vote   is  decided   only   for  purposes     of  that  appeal,   and   shall  not  have 


                                                  -13-	                                            6758

----------------------- Page 16-----------------------

we considered proposed amendments to the rule to clarify this point.  The proposal that 

we ultimately adopted changed the rule’s language from “decided by three justices in the 

supreme       court”   to   “decided     with    only   three   of   five   supreme      court   justices 

participating.”50     But   we   declined   to   answer   the   question   of   retroactivity   within   the 

language of the amended rule, choosing instead to wait for a case to come before us to 

clarify   the   issue.51  The   inferences   drawn   by   the   State   as   to   our   intent   based   on   this 

decision     certainly   do   not  amount     to  an   express   declaration    of  retroactivity,    and 

accordingly, Appellate Rule 106(b) does not have retroactive effect. 


                 Because we conclude that Appellate Rule 106(b) is not retroactive and that 

Doe I  is therefore binding precedent, which we decline to overrule, we AFFIRM the 

superior court’s grant of summary judgment to the John Does. 


precedential value.”      See Alaska Supreme Court Order No. 1742 (Nov. 10, 2010). 

        50      See Alaska Supreme Court Order No. 1759 (July 21, 2011). 

        51      We     rejected   two   alternative    proposals    that  would    have   resolved    the 

question.  The first proposal read:   “This rule applies to decisions issued by the supreme 

court after December 1, 1968.”  The second read:   “This rule applies to decisions issued 

by the supreme court after November 10, 2010.” 

                                                  -14-                                               6758 

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