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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. State, Office of Public Advocacy, Office of Elder Fraud & Assistance v. Estate of Jean R. (4/22/2016) sp-7098

State, Office of Public Advocacy, Office of Elder Fraud & Assistance v. Estate of Jean R. (4/22/2016) sp-7098

           Notice:   This opinion is subject to correction before publication in the P                    ACIFIC  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  

                                                                                                                           

           corrections@akcourts.us.  



                       THE SUPREME COURT OF THE STATE OF ALASKA                                       



STATE  OF  ALASKA,  OFFICE  OF                                   )
  

PUBLIC  ADVOCACY,  OFFICE  OF                                    )
                                            

                                                                            Supreme Court Nos. S-15326/15356  

ELDER  FRAUD  &  ASSISTANCE,                                     )
  

                                                                 )                                                                    

                                                                            Superior Court No. 1JU-12-00179 PR  

                                Appellant  and                   )  

                                Cross-Appellee,                  )                              

                                                                            O P I N I O N  

                                                                 )  

           v.                                                    )                                              

                                                                            No. 7098 - April 22, 2016  

                                                                 )  

                                        

ESTATE OF JEAN R., Deceased,                                     )
  

                        

and SIDNEY F.,                                                   )
  

                                                                 )
  

                                                   

                                Appellees and                    )
  

                                Cross-Appellants.   )
  

                                                                 )
  



                                                                                                                

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

                                                                                                    

                      Judicial District, Juneau, Philip M. Pallenberg, Judge.  



                                                                                                         

                      Appearances:  Ruth Botstein and Dario Borghesan, Assistant  

                                                                                                       

                      Attorneys General, Anchorage, and Michael C. Geraghty,  

                                                                                                                         

                      Attorney  General,  Juneau,  for  Appellant/Cross-Appellee.  

                                                                                                            

                      Robert S. Spitzfaden, Gruening & Spitzfaden, APC, Juneau,  

                                                                                                      

                      for  Appellees/Cross-Appellants.                           Deborah  A.  Holbrook,  

                                                                                                                     

                      Juneau, Co-Counsel for Appellee/Cross-Appellant Sidney F.  



                                                                                                                  

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

                                    

                      Bolger, Justices.  



                                             

                      FABE, Chief Justice.  


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

I.        INTRODUCTION  



                                                                                                                            

                    The State Office of Public Advocacy (OPA) filed a petition for an ex parte  



                                                                                                                     

protective order on behalf of an elderly woman against her adult daughter and caregiver,  



                                                                                                                          

after receiving allegations of financial abuse made by the elderly woman's other family  



                                                                                                                               

members.  The superior court found those allegations to be unfounded and denied the  



                                                                                                                                 

protective  order.           The  elderly  woman's  other  daughter  had  previously  initiated  a  



                                                                                                                               

conservatorship proceeding, in which the State then participated - in support of the  



                                                                                                                             

conservatorship   -   after   the   denial   of   the   protective   order.                                Ultimately   the  



                                                                                                                               

conservatorship case was settled through mediation. The elderly woman's estate and the  



                                                                                                                               

caregiver daughter sought attorney's fees against the State in connection with both the  



                                                          

protective order and conservatorship proceedings.  



                                                                                                                                 

                    The superior court awarded full reasonable fees arising from the denial of  



                                                                                                           

the protective order, finding that OPA's protective order petition was brought without  



                                                                                                                            

"just cause," under the fee-shifting provision of AS 13.26.131(d).  The superior court  



                                                                                                                                

declined  to  award  attorney's  fees  arising  from  the  proceeding  to  establish  a  



                                                                                                                                 

conservatorship because the State had not "initiated" the conservatorship proceeding as  



                                                                                                                               

required for fees under AS 13.26.131(d).   The State appeals the first award, and the  



                                                                                                                               

caregiver daughter and the estate of the woman, who is now deceased, cross-appeal the  



                                             

denial of the second award.  



                                                                                                                     

                    But we conclude that AS 13.26.131 does not apply to elder fraud protective  



                                                                                                                                

order proceedings; nor does Alaska Civil Rule 82 apply.  Instead, AS 44.21.415 sets up  



                                                                                                                              

a cost-recovery mechanism that does not allow private parties to recover attorney's fees  



                                                                                                                               

against the State in such proceedings. So we vacate the superior court's fee award in the  



                                                                                                                               

elder fraud protective order proceeding.   And because the State did not initiate the  



                                                                                                                              

conservatorship proceeding here, no attorney's fees are available against the State in that  



                                                               -2-                                                         7098
  


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

proceeding.   We therefore affirm the superior court's denial of fees in connection with                                                               



the conservatorship proceeding.       



II.         FACTS AND PROCEEDINGS       



                                                                                                                                1  

                                                                                                                                                  

                        When this case first arose in 2012, 92-year-old Jean R.                                                   lived in Juneau  



                                                                                                                                                        

with her 55-year-old daughter Sidney F., who served as her caregiver.   Sidney had  



                                                                                                                                                          

moved from Anchorage to Juneau in 2004 to care for her mother and father. In 2009 her  



                                                                                                                                                            

parents requested that Sidney quit her job to provide full-time care, and Sidney did so in  



                                                                                                                                                      

April 2010.  Later that year Jean was diagnosed with dementia, and in October 2010  



                                                                                                                                                         

Jean's husband (Sidney's father) died.  Sidney continued to live with her mother full  



                                                                                                                                                           

time, providing care and holding a power of attorney authorizing her to manage all of  



                                                                                                                                        

Jean's personal affairs.  This case arises out of allegations about Sidney's expenditures  



                                                                                                                                                           

raised by two of Jean's other children, Shelley and Geoffrey, who lived outside of  



Alaska.  



                                                                                                                                                         

                         In  July  2012  Shelley  petitioned  to  establish  a  conservatorship  for  her  



                                                                                                                                                    

mother, alleging  that  Sidney was wasting  and dissipating Jean's money  and  assets  



                                                                                                                                                   

without benefit to Jean, and that Sidney was financially exploiting Jean. Shelley sought  



                                                                                                                                                          

"a third party to serve as a full guardian with the powers of a conservator to protect the  



                                                                                                                                            

rights and well-being of [Jean]."  Through this action the Office of Elder Fraud and  



                                                                                                                                               

Assistance, a section of OPA, learned of Shelley's allegations about Sidney's conduct.  



                                                                                                                                             

                         In August 2012 OPA filed an ex parte petition for an elder fraud protective  



                                                                                                                                                 

order under AS 13.26.207-.208 to protect Jean from alleged financial abuse by Sidney.  



                                                                                                                                               

Prior  to filing the petition, OPA examined Jean's bank records and other financial  



                                                                                                                                                        

documents, which largely correlated with the allegations made by Shelley.  OPA also  



            1  

                                                                                                                                               

                        We use initials in lieu of the parties' last names to protect the family's  

privacy.  



                                                                             -3-                                                                           7098  


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

interviewed Shelley and Geoffrey. But OPA evidently did not interview Sidney or Jean,                                                                                                                                                                                                                  



even though it knew that they were both already aware of the allegations of fraud                                                                                                                                                                                                                   



because similar allegations had been made in Shelley's conservatorship petition.                                                                                                                                                                                     



                                                In   its   petition   OPA   asserted   that  ownership   of Jean's                                                                                                                                           home   had   been  



transferred to Sidney; that Jean's bank accounts had been overdrawn by $2,623 between                                                                                                                                                                                                      



January and August of 2012; that large expenditures had been made for the sole benefit                                                                                                                                                                                                          



of Sidney, including airline tickets to Seattle and Minnesota, supplies used to repair a                                                                                                                                                                                                                            



trailer for Sidney's boyfriend, and veterinarian bills for Sidney's pet; and that Sidney had                                                                                                                                                                                                                



generated "inordinately high" grocery bills.                                                                                                                          OPA estimated the value at risk to be                                                                                                    



 $54,000   per   year   and   declared  the   risk   to   be   "immediate   or   urgent,"   citing   recent  



overdrafts and checks made out to Sidney from Jean's bank account totaling $1,500.                                                                                                                                                                                                           



OPA requested that the court limit Sidney's powers of attorney to medical decisions; that                                                                                                                                                                                                                  



housing  decisions   be   shared   between   Sidney,   Shelley,   and   Geoffrey;   and   that   a  



temporary   six-month   conservatorship   be   established  to  handle   all   financial   matters  



following the initial 20-day ex parte protective period.                                                                                                                   



                                                Jean received a copy of OPA's protective order petition the day after it was                                                                                                                                                                           

                                                                                                                                                                                                           2       She explained that the home  

filed, and she quickly filed a brief opposing the petition.                                                                                                                                                                                                                                         



had been deeded to Sidney in order to help secure additional government assistance for  

                                                                                                                                                                                                                                                                                                              



Jean in her old age.  She also "dispute[d] the factual basis" of the allegations relating to  

                                                                                                                                                                                                                                                                                                                 



the airplane tickets, trailer repair, and veterinarian bills.  She maintained that she was  

                                                                                                                                                                                                                                                                                                          



"well taken care of" and that no financial abuse had taken place.  

                                                                                                                                                                                                                   



                                                The superior court denied the ex parte petition three days after it was filed.  

                                                                                                                                                                                                                                                                                                      



The court briefly explained that it reached this decision because it "d[id] not find that  

                                                                                                                                                                                                                                                                                                           



                        2  

                                                                                                                                                                                                                                                                                                                     

                                                It does not appear from the record that Sidney, the respondent, received a  

                                                                                                                                                                                      

copy of the ex parte petition or filed a response to it.  



                                                                                                                                                        -4-                                                                                                                                                            7098  


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

there ha[d] been a showing of probable cause" demonstrating that an ex parte order was                                                                                                                                                                      



necessary to prevent fraud by Sidney against Jean.                                                                                                        But the superior court indicated that                                                             



it would convert OPA's ex parte petition into a petition for a six-month protective order                                                                                                                                                               

                                                                3     So OPA continued to proceed with this petition for a six-month  

under AS 13.26.208.                                                                                                                                                                                                                   



protective order, even after the court's denial of the ex parte petition.  

                                                                                                                                                                                         



                                         The superior court consolidated OPA's ongoing protective order petition  

                                                                                                                                                                                                                              



and the earlier conservatorship petition filed by Shelley, and it scheduled an evidentiary  

                                                                                                                                                                                                                                     



hearing in September 2012. At that hearing, the court heard testimony that the home was  

                                                                                                                                                                                                                                                            



transferred on advice of counsel; that the alleged flight to Minnesota by Sidney and her  

                                                                                                                                                                                                                                                              



boyfriend was in fact a trip to Juneau that Shelley took to help care for Jean; that Sidney  

                                                                                                                                                                                                                                                  



had reimbursed money to her mother's account for a flight she had taken to Seattle to  

                                                                                                                                                                                                                                                                 



obtain medical treatment; and that the money spent on Sidney's boyfriend's trailer was  

                                                                                                                                                                                                                                                            



actually compensation in exchange for re-roofing and painting Jean's house.  The court  

                                                                                                                                                                                                                                                        



also heard testimony fromSidney explaining that the money she spent and the checks she  

                                                                                                                                                                                                                                                              



drew from Jean's account were compensation under an agreement reached between  

                                                                                                                                                                                                                                             



 Sidney and her parents before Sidney quit her job and became their full-time caregiver.  

                                                                                                                                                                                                                                                                           



                    3                    Although the superior court stated that it would consider "whether to issue                                                                                                                                    



a 6-month order under AS 13.26.209," we assume it intended to refer to a temporary                                                                                                                                                   

protective order as defined under AS 13.26.208.                                                                                                    We note that AS 13.26.209 deals with                                                                   

modifications   to   existing   protective   orders,   while   AS   13.26.208   provides   for   the  

conversion of a 20-day ex parte protective order into a six-month temporary protective                                                                                                                                                   

order.   AS 13.26.208 provides, in part:                                                                                "On application filed with the court before the                                                                                       

expiration of a 20-day ex parte protective order issued under AS 13.26.207, the court                                                                                                                                                                  

shall schedule a hearing on whether to convert the protective order to a temporary order                                                                                                                                                                

effective for up to six months."                                                                  Briefing from OPA, which focuses on AS 13.26.207- 

 .208, confirms that these were                                                           the provisions under which OPA sought a protective order                                                                                                      

here.  



                                                                                                                                -5-                                                                                                                      7098
  


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

                                                                                                                        

                     At the end of the hearing, the superior court entered an oral order denying  



                                                                                                                               

OPA's  petition  for  an  elder  fraud  protective  order.                           The  court  credited  Jean's  and  



                                                                                                                            

 Sidney's explanations for the expenditures OPA had challenged, explaining that it found  



                                                                                                                            

Jean's and  Sidney's testimony  more credible than the testimony  from Jean's other  



                                                                                                                                 

children  and  OPA's  staff.  The  superior  court  thus  found  that  OPA  had  failed  to  



                                                                                                                        

demonstrate fraud by a preponderance of the evidence and had not made "any showing  



                                                                                                                    

that there [had] been fraud in this case." The court allowed that a more formalized  



                                                                                                                                

compensation arrangement might have been better but noted that it did not find the  



                                                                                                                               

current arrangement to be exploitation, and that it was hard to understand "how one gets  



                                                                                                                          

to [the] place where it is felt to be exploitation."  The superior court therefore denied  



                                                                                                                                

OPA's petition for an elder fraud protective order.  The court allowed litigation of the  



                                                      

conservatorship issue to continue, however.  



                                                                                            

                     After the superior court's ruling, Sidney filed a motion seeking an award  



                                                                                                                        

of  $14,025  for  attorney's  fees  and  costs  against  OPA.                             Jean  moved  for  a  separate  



                                                                                                                               

attorney's fees award against OPA for $8,607.75.  Sidney alleged that a fee award was  



                                                                                                                            

justified under Alaska Civil Rule 82, the standard fee-shifting scheme for civil cases;  



                                                                                                                       

AS 13.26.131, the fee-shifting statute for guardianship and conservatorship cases; or  



                                                                                                                                 

AS 13.26.353(c), which provides a cause of action for failure to honor a power of  



                                                                                                                               

attorney.  Jean asserted that AS 13.26.131 was not applicable but that an award was  



                                                                                                                                   

justified under Rule 82 or AS 13.26.353(c).  OPA opposed the motions, denying that it  



                                                                                                                       

had filed its petition for a protective order in bad faith or without just cause.  



                                                                                                                               

                     Meanwhile, theparties continuedto litigatetheconservatorshippetitionthat  



                                                                                                                 

 Shelley had filed.  OPA, participating in this proceeding as an interested party, sought  



                                                                                                                                  

additional discovery and opposed Sidney and Jean's motion for summary judgment.  In  



                                                                                                                         

December the parties settled the remaining issues from the conservatorship petition  



                                                                                                                                

through the Adult Guardianship Mediation Program.  The parties agreed to dismiss the  



                                                                -6-                                                         7098
  


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

                                                                                                                                 

conservatorship petition with prejudice and agreed to support Jean's wish to remain in  



her Juneau home until her death.  They established a formal compensation scheme for  



                                                                                                                               

Sidney, and Sidney agreed to make monthly reports to Shelley and Geoffrey about her  



                                                                                                                  

expenditures as caregiver.  Sidney also agreed to put the home up for sale upon Jean's  



                                                                                                                         

death.  Finally, Sidney and Jean agreed not to pursue an attorney's fee award against  



                                                                                                                     

Shelley or Geoffrey.  Sidney and Jean explicitly reserved their right to seek attorney's  



                

fees from OPA.  



                                                                                                                                  

                    Following the settlement of the conservatorship action, Jean again filed a  



                                                                                                                               

motion for a fee award against OPA.  She argued that OPA's continued litigation of the  



                                                                                                                 

conservatorship proceeding was "in bad faith, vexatious, frivolous, and without just  



                                                                                                                            

cause," thereby justifying a fee award.   She argued that all factual issues had been  



                                                                                                                              

resolved  by  the  denial  of  the  protective  order  and  that  continuing  to  litigate  the  



                                                                                                                                     

conservatorship  petition  violated  principles  of  collateral  estoppel  and  res  judicata.  



                                                                                                                              

Sidney moved to join and supplement Jean's motion shortly thereafter. She asserted that  



                                                                                                                               

the sum of her total incurred fees had risen to $36,195 and reiterated that Civil Rule 82,  



                                                                                                                 

AS 13.26.131(d) and AS 13.26.353(c) justified a fee award.  In response OPA argued  



                                                                                                                              

that nothing "in the Probate Rules, Title 13, or applicable case law . . . support[s the]  



                                                                                                                              

view that interested parties are subject to attorney fees under Rule 82" and argued that  



                                       

AS 13.26.353(c) did not apply.  



                                                                                                                            

                    The superior court awarded full reasonable fees against OPA in the elder  



                                                                                                                        

fraud protective order proceeding, finding that OPA's elder fraud "petition was brought  



                                                                                                                           

without just cause"becausean "objectiveobserver whomadereasonableinquirieswould  



                                                                                                                      

[not] conclude that there was just cause for believing that there was fraud or financial  



                                                                                                                         

exploitation."  In fact the superior court found that, far from committing fraud, Sidney  



                                                                                                                           

had been providing loving care for her mother after quitting her job and moving home  



                                                                                                                   

at her parents' request.  It was evident that the proceedings arising from the allegations  



                                                               -7-                                                         7098
  


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

of fraud had cost the family significant time and expense, which the superior court                                                                                                                                                       



 sought to rectify with this award of attorney's fees.                                                                                                 



                                       In the conservatorship proceeding, however, the superior court declined to                                                                                                                                    



award attorney's fees.                                           There the superior court found that "by continuing to litigate the                                                                                                              



conservatorship proceeding" filed by the family members, OPA had not "initiated a                                                                                                                                                                     



proceeding that was malicious, frivolous, or without just cause" as required for a fee                                                                                                                                                        



award under AS 13.26.131(d). OPA appeals the fee award in the protective order action,                                                                                                                                                 



while Sidney and Jean (now Jean's estate) cross-appeal the denial of fees related to the                                                                                                                                                         



conservatorship action.   



III.                STANDARD OF REVIEW                                    



                                       Although   we   review   the   reasonableness  of   fee   awards   for   abuse   of  



                               4 

                                                                                                                                                                                                             

discretion,  we independently review "whether the trial court properly applied the law  



                                                                                            5  

                                                                                                                                                                                                                                 

when awarding attorney's fees."                                                                  When such an inquiry "rests on a question of statutory  



                                                                                                                                                                                                                             6  

                                                                                                                                                                                                                                          

interpretation, we apply our independent judgment in interpreting the statute."                                                                                                                                                   In doing  



                                                                                                                                                                                                                                                    

 so, "we look to the meaning of the language, the legislative history, and the purpose of  



                                                                                                                                                                                                                                     

the statute and adopt the rule of law that is most persuasive in light of precedent, reason,  



                                    7  

                                        

and policy." 



                    4                 Foster v. Prof'l Guardian Servs. Corp.                                                                           , 258 P.3d 102, 107 (Alaska 2011)                                                 



 (citing  DeNardo v. Cutler                                                , 167 P.3d 674, 677-78 (Alaska 2007)).                                                       



                    5                 Baker  v.  Ryan  Air,  Inc.,  345  P.3d  101,  106  (Alaska  2015)  (quoting  

                                                                                                                                                                                                                               

DeNardo, 167 P.3d at 677).  

                                                                  



                    6                 Adamson v. Municipality of Anchorage , 333 P.3d 5, 11 (Alaska 2014)  

                                                                                                                                                                                                                                        

 (citing Pouzanova v. Morton, 327 P.3d 865, 867 (Alaska 2014)) (applying this standard  

                                                                                                                                                                                                                                  

to a question of statutory interpretation on an issue that is normally reviewed for abuse  

                                                                                                                                                                                                                                         

of discretion).  

        



                    7                 In re Protective Proceedings of Vernon H., 332 P.3d 565, 572 (Alaska  

                                                                                                                                                                                                                                   

                                                                                                                                                                                                                   (continued...)  



                                                                                                                         -8-                                                                                                                7098
  


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

IV.	      DISCUSSION  



                                                                                                                        

          A.	       It  Was  Error  To  Award  Attorney's  Fees  In  The  Elder  Fraud  

                                                                                                                       

                     Proceeding Because Neither AS 13.26.131 Nor Civil Rule 82 Applies.  



                                                                                                               

                    Alaska  Statute  13.26.131(d)  provides  for  fee  shifting  in  guardianship  



                                                                                                                        

proceedings if the court finds that the proceeding "was malicious, frivolous, or without  



                                                                                                                            

just cause."  The superior court applied this fee-shifting provision to the elder fraud  



                                                                                                                              

protective proceeding at issue here, interpreting the text of the statute as suggesting that  



                                                                                                                       

it should apply.  Our decision in In re Vernon H., which was decided after the superior  



                                                                                                            

court's order in this case, explained that AS 13.26.131(d) applies to conservatorship  



                                

proceedings as well as guardianship proceedings and that it displaces Civil Rule 82 in  



                                         8  

                                                                                                                              

both types of proceedings.                  But we have not yet addressed the question whether our  



                                                                                                                              

holding in  Vernon H. also encompasses elder fraud protective order proceedings.  We  



                                                                                                                      

conclude  that  elder  fraud  protective  order  proceedings  are  subject  to  a  separate  



                                                                                                                           

cost-recovery scheme that was established with the creation of the Office of Elder Fraud  



                                                                                                                          

and Assistance, the office that prosecutes elder fraud cases and seeks protective orders  



                                                                                                                                

on  behalf  of  vulnerable  elders.                 Accordingly,  these  proceedings  are  not  subject  to  



                                            

AS 13.26.131 or Civil Rule 82.  



                                                                                                                                 

                     1.	       The fee-shifting provision of AS 13.26.131(d) does not apply to  

                                                                              

                               elder fraud protective order proceedings.  



                                                                                                                    

                     Title 13, Chapter 26 of the Alaska Statutes sets up a statutory regime for  



                                                                                                                     

protective proceedings, including guardianship, conservatorship, and other protective  



                                                                                                                       

order cases.   The set of provisions under which  OPA filed its elder fraud petition,  



                                                                                                                       

AS 13.26.207-.209, was added to this chapter in 2012 in an effort to address the growing  



          7(...continued)  



                                                                                             

2014) (quoting Enders v. Parker, 66 P.3d 11, 13-14 (Alaska 2003)).  



          8         Id. at 577.  

                              



                                                                -9-	                                                       7098
  


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

problem of fraud against elders in Alaska.                                                                                                                                                                            9  These provisions do not contain their own                                                                                                                                                              



 fee-shifting scheme; instead they rely on fee-shifting provisions codified elsewhere in                                                                                                                                                                                                                                                                                                                                                    



the statutory regime.                                                                                       



                                                                    The cost-allocation statute applied by the superior court, AS 13.26.131,                                                                                                                                                                                                                                                   



generally allocates costs in a guardianship or conservatorship proceeding between the                                                                                                                                                                                                                                                                                                                                                 



petitioner, the respondent, and the State:                                                                                                                                                                     



                                                                    (a)                               Subject to (d) of this section, the [S]tate shall bear the                                                                                                                                                                                                   

                                                                    costs                                  of                      the                         visitor                                      and                            expert                                      appointed                                                       under  

                                                                    AS 13.26.106(c).   



                                                                    (b)                               Subject to (c) and (d) of this section, the respondent                                                                                                                                                              

                                                                    shall    bear   the    costs    of    the    attorney    appointed    under  

                                                                    AS                           13.26.106(b),                                                                       of                     the                          expert                                       appointed                                                        under  

                                                                    AS 13.26.109(d), of the guardian ad litem appointed under                                                                                                                                                                                                                        

                                                                    AS   13.26.025,   and   of   other   court  and   guardianship   costs  

                                                                    incurred under this chapter.                                                                      



                                                                    (c)                               The [S]tate shall pay all or part of the costs described                                                                                                                                                                    

                                                                    in (b) of this section if the court finds that the payment is                                                                                                                                                                                       

                                                                    necessary to prevent the respondent from suffering financial                                                                                                                                                                                                      

                                                                    hardship or from becoming dependent upon a government                                                                                                                                                                                     

                                                                    agency or a private person or agency.                                                                                                                 



The final section of AS 13.26.131 then provides for cost-shifting in certain limited                                                                                                                                                                                                                                                                                                                            



circumstances:  



                                                                    (d)                               The court may require the petitioner to pay all or some                                                                                                                                                                                            

                                                                    of the costs described in (a) and (b) of this section if the court                                                                                                                                                                                                                   

                                                                    finds   that   the   petitioner   initiated   a   proceeding  under   this  

                                                                    chapter that was malicious, frivolous, or without just cause.                                                                                                                                                                                                                 



                                  9                                 Ch. 71,  10, SLA 2012;                                                                                                              see   Minutes, S. Judiciary Comm. Hearing on                                                                                                                                                                                   



 Senate Bill (S.B.) 86, 27th Leg., 1st Sess. 1:40-1:46 (Feb. 21, 2011) (testimony of Kelly                                                                                                                                                                                                                                                                                                                                

Henriksen, Assistant Att'y Gen.) (describing the problem of elder fraud in Alaska as the                                                                                                                                                                                                                                                                                                                                               

motivation for the bill).                                                                     



                                                                                                                                                                                                                  -10-                                                                                                                                                                                                         7098
  


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

Alaska Statute 13.26.131 falls within chapter 13.26, which also includes the protective                                                                                                                      



order provisions of AS 13.26.207-.209 under which OPA filed the elder fraud protective                                                                                                                       



order in this case.                                  And the text of AS 13.26.131(d) suggests that this cost-shifting                                                                                



provision applies to all proceedings "under this chapter."                                                                                                   By this logic, the superior                        



court   concluded   that   the   cost-shifting   provision   applied   to   the   protective   order  



proceeding here.                               Jean's estate urges us to adopt this reasoning as well.                                                                                        But although it                       



is understandable that the superior court focused on the plain text of this provision, our                                                                                                                                    



analysis does not end there.                                                



                                    When   interpreting   a   statute,   "we   begin   with   the   plain   meaning   of   the  

                                         10       Then "we apply a sliding scale approach, where '[t]he plainer the  

statutory text."                                                                                                                                                                                                              



statutory language is, the more convincing the evidence of contrary legislative purpose  

                                                                                                                                                                                                                  



or intent must be' " in order for us to conclude that an alternative interpretation of the  

                                                                                                                                                                                                                               

statute is more appropriate.11                                                      Here, although the meaning of the phrase "under this  

                                                                                                                                                                                                                             



chapter"  at  first  appears  plain,  the  text  of  the  other  sections  within  AS  13.26.131  

                                                                                                                                                                                                           



convinces us that the legislature could not have intended for that statute to apply in elder  

                                                                                                                                                                                                                          



fraud proceedings. Specifically, subsections (a)-(c) of the statute allocate costs between  

                                                                                                                                                                                                                 



the State and the respondent, but the definition of "respondent" in the elder fraud context  

                                                                                                                                                                                                                    



is entirely different from the definition in the guardianship or conservatorship context.  

                                                                                                                                                                                                                                          



The  guardianship  statutes  define  "respondent"  as  the  person  who  allegedly  needs  

                                                                                                                                                                                                                       



                  10               Hendricks-Pearce v. State, Dep't of Corr.                                                                       , 323 P.3d 30, 35 (Alaska 2014)                                      



(citing   Ward v. State, Dep't of Pub. Safety                                                                    , 288 P.3d 94, 98 (Alaska 2012)).                                     



                  11                State, Commercial Fisheries Entry Comm'n v. Carlson, 270 P.3d 755, 762  

                                                                                                                                                                                                                              

(Alaska 2012), as modified on reh'g (Apr. 13, 2012) (quoting Gov't Emps. Ins. Co. v.  

                                                                                                                                               

Graham-Gonzalez, 107 P.3d 279, 284 (Alaska 2005)).  

                                                                                                                               



                                                                                                              -11-                                                                                                        7098
  


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

                        12  

protection.                  But the person who allegedly needs protection is not mentioned as a party                                                                             



in an elder fraud protective order proceeding.                                                        Instead, the elder fraud protective order                                    



                                                                                                                                                                                           13  

statute refers to the "respondent" as the person who is accused of committing the fraud.                                                                                                        



                                                                                                                                                                                  

It would make little sense for the cost-allocation provisions of AS 13.26.131 to apply  



                                                                                                                                                                          

equally  to  both  sets  of  "respondents,"  because  the  parties  are  in  entirely  different  



                                                                                             

positions with respect to the proceedings.  



                                                                                                                                                                                         

                             If we try to harmonize this conflict by applying a uniform definition of  



                                                                                                                                                                                        

"respondent" under AS 13.26.131, it could lead to absurd results.  What happens if we  



                                                                                                                                                                                     

try to apply the elder fraud statute's definition of respondent to the guardianship cost  



                                                                                                                                                                         

statute?  Under subsection (b), the accused is then required to pay the costs of appointed  



                                                                                                                                                                  

counsel, a respondent's expert, a guardian ad litem, and all "other court and guardianship  

                                                                              14     The accused respondent must pay these costs,  

                                                                                                                                                                                 

                                                          

costs incurred under this chapter." 



whether innocent or guilty, unless the costs are shifted to the petitioner under the rare  

                                                                                                                                                                                      

                                                                                            15  On the other hand, under subsection (c) the  

circumstances described in subsection (d).                                                                                                                                              

                                                                                     



State may be required to pay any of these costs if such an order is "necessary to prevent  

                                                                                                                                                                              



the[accused]fromsuffering financialhardship"or otherwisebecoming dependent. Such  

                                                                                                                                                                                    



               12            AS 13.26.005(11).   



               13            See  AS 13.26.207(a) ("If the court finds that the [protective order] petition                                                                   



establishes probable cause that the respondent is financially defrauding the petitioner . . .                                                                                                   

the court shall . . . issue a protective order.").  

                                                                                 



               14            AS 13.26.131(b).  

                                      



               15            See AS 13.26.131(d).  

                                               



                                                                                           -12-                                                                                    7098
  


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

an outcome is entirely inconsistent with the elder fraud statute's goal of protecting the                                                                



                                                                    16  

financial well-being of fraud                        victims.    



                        Different  problems  would  arise  if  we  tried  to  apply  the  definition  of  

                                                                                                                                                         



"respondent" from the guardianship cost statute.  Under this alternative, the respondent  

                                                                                                                                          



would be the person who allegedly needs protection, that is, the vulnerable adult in a  

                                                                                                                                                            

protective order proceeding.17  Under AS 13.26.131, the vulnerable adult would then be  

                                                                                                                                                          



responsible for paying the costs of appointed counsel, a respondent's expert, a guardian  

                                                                                                                                              



ad litem, and all "other court and guardianship costs incurred under this chapter," even  

                                                                                                                                                      

though the vulnerable adult is not typically a named party in an elder fraud proceeding.18  

                                                                                                                                                                



If the vulnerable adult cannot afford to pay these costs, then the State would pay, even  

                                                                                                                                                     

if it is not party to the proceeding.19                            The petitioner could be required to pay only if the  

                                                                                                                                                         

                                                                                                     20   In this scenario, the accused  

filing was "malicious, frivolous, or without just cause."                                                                                       

                                                                                         



would never be required to pay any costs, even if he or she were found guilty of fraud.  

                                                                                                                                                   



                        Ultimately both of these interpretations could lead to absurd results that  

                                                                                                                                                       



would conflict with the purpose of elder fraud proceedings, which is to protect elders  

                                                                                                                                                   

against financial abuse.21                      As a rule of statutory interpretation, we "disfavor statutory  

                                                                                                                                              



            16          AS   13.26.131(c).  



            17          AS   13.26.005(11).  



            18          AS   13.26.131(b).  



            19          AS   13.26.131(c).  



            20          AS   13.26.131(d).  



            21          Minutes,  S.  Judiciary  Comm.  Hearing  on  S.B.  86,  27th  Leg.,  1st  Sess.  1:40- 



 1:46  (Feb.  21,  2011)  (testimony  of  Kelly  Henriksen,  Assistant  Att'y  Gen.).  



                                                                           -13-                                                                     7098
  


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

                                                                            22  

constructions thatreach                       absurd results."                   Moreover, Alaska                   ProbateRule1(e) mandates           



that any procedure applied to probate proceedings -including the elder fraud protective                                                               

                                     23  - "may not . . . interfere with the unique character and purpose of  

orders at issue here                                                                                                                                                 

                                           24    Thus we conclude that AS 13.26.131, when read as a whole,  

probate proceedings."                                                                                                                                      

                 



cannot apply to elder fraud protective order proceedings.  

                                                                                                                 



                          This conclusion is confirmed by the title of AS 13.26.131, which "can be  

                                                                                                                                                                    

an interpretive tool . . . where legislative meaning is left in doubt."25                                                               The provision is  

                                                                                                                                                                     



titled "Costs in guardianship proceedings," as the superior court noted, and indeed most  

                                                                                                                                                                



of  the  costs  described  in  subsections  (a)  and  (b)  are  unique  to  guardianship  and  

                                                                                                                                                                 

conservatorship proceedings.26  It makes sensefor AS13.26.131to apply toguardianship  

                                                                                                                                                



and  conservatorship  proceedings  but  not  to  elder  fraud  cases.                                                               Guardianship  and  

                                                                                                                                                                 



conservatorship proceedings are closely related: A guardianship covers all aspects of the  

                                                                                                                                                                   



protected person's legal and financial rights, and a conservatorship involves similar  

                                                                                                                                                           



powers but deals only with financial protection.  They are often described together in  

                                                                                                                                                                     

                                                                                 27   Elder fraud proceedings, on the other hand,  

statutory provisions and the probate rules.                                                                                                                   

                                                                       



             22           See Premera Blue Cross v. State, Dep't of Commerce, Cmty. &Econ. Dev.,                                                               



Div. of Ins          ., 171 P.3d 1110, 1120 (Alaska 2007) .                                     



             23           See Alaska R. Prob. P. 1(b) (governing all proceedings within Title 13 of  

                                                                                                                                                                     

the Alaska Statutes).  

                       



             24           Alaska R. Prob. P. 1(e).  

                                                                



             25           Tweedy v. Matanuska-Susitna Borough Bd. of Adjustment & Appeals, 332  

                                                                                                                                                                  

P.3d 12, 18 (Alaska 2014) (citing Boyd v. State, 210 P.3d 1229, 1232 (Alaska 2009)).  

                                                                                                                                                         



             26           See In re Protective Proceedings of Vernon H., 332 P.3d 565, 577 (Alaska  

                                                                                                                                                          

2014) (concluding that AS 13.26.131(d) applies in conservatorship cases).  

                                                                                                                                     



             27           See, e.g., AS 13.26.380 (c)(1) ("The public guardian shall . . . establish and  

                                                                                                                                                                  

                                                                                                                                              (continued...)  



                                                                                -14-                                                                           7098
  


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

are more prosecutorial in nature and are targeted at the perpetrator of the fraud rather                                                     



                                             28  

than the protected person.                                                                                                                          

                                                 We therefore conclude that, while AS 13.26.131 applies to  



                                                                                                                                 

guardianship  and  conservatorship  proceedings,  it  does  not  apply  to  elder  fraud  



proceedings.  



                                                                                                                                          

                       2.	         AlaskaStatute44.21.415creates aspecificcost-recovery scheme  

                                                                                                                                           

                                   for elder fraud proceedings, which displaces Civil Rule 82.  



                                                                                                                                              

                       To understand how the legislature intended to allocate costs in elder fraud  



                                                                                                                                              

proceedings, we look to the text and history of the statute that created the Office of Elder  



                                                                                                                                                  

Fraud and Assistance ("the Office").  The 2006 enactment of AS 44.21.415 created the  



                                                                                                                               29  

                                                                                                                                            

Office as a division of OPA to investigate and prosecute elder fraud cases.                                                        The statute  



                                                                                                                                                 

contains a cost-recovery provision allowing the Office to collect its litigation costs and  



                                                                                                                                              

fees from the defendant (the person accused of fraud) or from the protected elder when  



                                                               

the Office prevails on behalf of the elder:  



                                                                                                              

                       Subject   to   the   discretion   of   the   court   and   standards  

                                                                                                                           

                       established in regulation . . . and taking into consideration the  

                                                                                                                      

                       financial condition of the parties to a civil suit brought under  

                                                                                                                 

                       this section, the office of public advocacy may seek recovery  

                                                                                                                     

                       of  all  or  part  of  litigation  costs  and  fees  from any  party,  

                                                                                                                        

                       including costs incurred during the investigation of the case,  



            27(...continued)  



                                                                                                                                                 

maintain relationships with governmental, public, and private agencies, institutions, and  

                                                                                                                                                  

organizations to assure the most effective guardianship or conservatorship program for  

                                                                                                                                                

each  ward  and  protected  person);  Alaska  R.  Prob.  P.  14(e)  ("Guardianship  and  

                                                                  

conservatorship proceedings may be combined.").  



            28         See AS 13.26.207.  

                                      



            29         Ch. 64,  2, SLA 2006.  

                                                       



                                                                        -15-	                                                                 7098
  


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

                       when the office of public advocacy is found to be a prevailing                        

                       party after trial or settlement negotiation.                           [30]  



This section also provides that the Office must generally "enter into a fee agreement with  

                                                                                                                                              

a client,"31  who is defined to be the elder in need of protection.32                                             The statute does not  

                                                                                                                                                

provide for any award of attorney's fees against OPA.33  

                                                                                                  



                       Although  not  determinative  of  the  legislature's  intent,  the  regulation  

                                                                                                                                   



implementing  this  statute  further  supports  our  interpretation  of  this  cost-recovery  

                                                                                                                             



scheme.  The regulation clarifies that "if the client prevails, the [Office] will first seek  

                                                                                                                                             



recovery of [its] attorney's fee from the defendant" and then, "if the defendant is unable  

                                                                                                                                          



to satisfy the award of the [Office's] attorney's fee, the [Office] will next seek recovery  

                                                                                                                                      

from the client [the protected elder]."34   Like the statute itself, the regulation contains no  

                                                                                                                                                 



provision for a fee award against the Office even if the Office does not prevail in the  

                                                                                                                                                



         35  

case. 



                       Thus,  this  statute  sets  up  a  cost-recovery  scheme  that  allows  OPA  to  

                                                                                                                                                 



recover its costs first from the perpetrator of the fraud and then fromthe protected person  

                                                                                                                                          



who  benefited  from  the  elder  fraud  proceeding.                                           And  although  the  legislature  

                                                                                                                                  



contemplated that the Office might not always prevail in the elder fraud proceedings it  

                                                                                                                                                   



           30          AS  44.21.415(e).  



           31          Id.  



           32          2  Alaska  Administrative  Code  (AAC)  60.390.  



           33          AS  44.21.415(e).  



           34          2  AAC  60.310(1).   The  regulation  also  suggests  that  Rule  82  might  apply  



in  addition  to  the  cost-recovery  scheme  described  in  AS  44.21.415(e),  but  we  conclude  

that  the  legislature  intended  for  this  statutory  cost-recovery  scheme  to  displace  Rule  82,  

as  discussed  further  below.   See  infra  pp.  20-23.  



           35          2 AAC 60.310(2).  

                                     



                                                                       -16-                                                                 7098
  


----------------------- Page 17-----------------------

                    36  

initiated,               the   legislature   nonetheless   chose   not   to   allow   other   parties   to   recover  



attorney's fees from the Office.                                         This outcome is consistent with the legislative history                                                   



surrounding the passage of AS 44.21.415, which expressed concern with keeping the                                                                                                           



Office's costs low.                         For instance, one legislator inquired about how to make the Office                                                                       



as "efficient and effective" as possible and noted that questions regarding "who will be                                                                                                      



responsible and how the costs will be borne" were important to address in crafting the                                                                                                      

         37    Similarly, the OPA director's testimony before the legislature called attention to  

bill.                                                                                                                                                                                          



the "conservative fiscal note" on the bill, seeming to indicate that the creation of this new  

                                                                                                                                                                                          

Office would not raise OPA's costs significantly.38                                                                   And the OPA director specifically  

                                                                                                                                          

suggested  adding  a  cost-recovery  mechanism to  keep  the  Office's  costs  low.39                                                                                                         In  

                                                                                                                                                                                             



response to this request, legislators drafted an amendment that ultimately created the  

                                                                                                                                                                                            

                                                                                                                       40   We recognize that this outcome  

cost-recovery provision contained in the final statute.                                                                                                                         

                                                                                                       



may appear harsh in cases where the Office does not prevail and the court finds that no  

                                                                                                                                                                                              



fraud occurred, leaving the accused and sometimes the protected person - who was not  

                                                                                                                                                                                            



               36             See  AS 44.21.415(e) (providing for cost recovery only "when the [Office]                                                                          



is found to be a prevailing party").                         



               37             Minutes, H. State Affairs Comm. Hearing on House Bill (H.B.) 399, 24th  

                                                                                                                                                                                         

Leg., 2d Sess. 8:39-8:44 (Feb. 7, 2006) (testimony of Rep. Max Gruenberg).  

                                                                                                                                                  



               38             Minutes, H. FinanceComm. Hearing on H.B. 399, 24thLeg.,2d Sess. 9:25- 

                                                                                                                                                                                        

9:34 (Mar. 7, 2006) (testimony of Josh Fink, Director, OPA).  

                                                                                                                            



               39             Minutes, H. State Affairs Comm. Hearing on H.B. 399, 24th Leg., 2d Sess.  

                                                                                                                                                                                        

8:30-8:31 (Feb. 7, 2006) (testimony of Josh Fink, Director, OPA) ("The committee may  

                                                                                                                                                                                          

want to consider if we litigate on behalf of individuals that there'd be some mechanism  

                                                                                                                                                                          

by which, if we were successful, we could recover our actual costs, if there was not  

                                                                                                                                                                                            

financial hardship on the individual we were litigating for.").  

                                                                                                                            



               40             Compare H.B. 399, 24th Leg., 2d Sess. (Jan. 27, 2006) (lacking cost- 

                                                                                                                                                                                       

recovery provision), with ch. 64,  2, SLA 2006 (containing cost-recovery provision).  

                                                                                                                                                                          



                                                                                             -17-                                                                                       7098
  


----------------------- Page 18-----------------------

in fact in need of protection - to bear their own costs.                                                                                                                                   But we must also recognize that                                                                  



the legislature evidently trusted the Office to focus its efforts on the most meritorious                                                                                                                                                                       



cases, and it structured the cost-recovery scheme accordingly.                                                                                                            



                                              Sidney argues that AS 44.21.415 could not have intended to                                                                                                                                                                   set up                   a  



one-way cost-recovery mechanism.                                                                                              But this is not the only context in which such a                                                                                                                      



mechanismexists.                                                 Indomesticviolenceproceedings,                                                                                       for example, the court may require  



the respondent to pay the petitioner's attorney's fees if a protective order is granted; yet                                                                                                                                                                                                   



there is no parallel provision allowing the respondent in a domestic violence proceeding                                                                                                                                                                           

                                                                                                                                                                                                                                                                                 41         The  

to collect attorney's fees from the petitioner if the petitioner does not prevail.                                                                                                                                                                                                       



legislative  history  of  the  elder  fraud  protective  order  provisions  indicates  that  the  

                                                                                                                                                                                                                                                                                            

legislature modeled these provisions on the domestic violence statutes,42   so it makes  

                                                                                                                                                                                                                                                                                  



sense that the legislature chose to create a similar one-way fee mechanism in elder fraud  

                                                                                                                                                                                                                                                                                       

proceedings.43  

                                                   



                       41                     AS 18.66.100(c)(14).   



                       42                     Minutes, H. Finance Comm. Hearing on S.B. 86, 27th Leg., 2d Sess. 1:44-                                                                                                                                                                  



 1:48 (Mar. 1, 2012) (testimony of Kelly Henriksen, Assistant Att'y Gen.); Minutes,  

                                                                                                                                                                                                                                                                          

 S.  Judiciary Comm. Hearing on S.B. 86, 27th Leg., 1st Sess. 1:35-1:36 (Apr. 11, 2011)                                                                                                                                                                                              

(testimony of Sen. Hollis French); Minutes, S. Judiciary Comm. Hearing on S.B. 86,                                                                                                                                                                                                           

27th Leg., 1st Sess. 1:53-1:55 (Feb. 21, 2011) (testimony of Kelly Henriksen, Assistant                                                                                                                                                                                  

Att'y Gen.).  

                    



                       43                     In bar discipline proceedings, similarly, an attorney is liable for attorney's  

                                                                                                                                                                                                                                                                       

fees and costs when there is a finding of misconduct.  Alaska Bar R. 16(c)(3).  But if it  

                                                                                                                                                                                                                                                                                                    

is ultimately determined that the attorney did not engage in misconduct, the rule contains  

                                                                                                                                                                                                                                                                             

no provision that would enable the attorney to recover from the Disciplinary Board any  

                                                                                                                                                                                                                                                                                             

costs or fees incurred in defending against the allegations.  See id.  Thus, far from being  

                                                                                                                                                                                                                                                                                      

an  anomaly  here,  one-way  fee  schemes  are  used  in  several  other  types  of  quasi- 

                                                                                                                                                                                                                                                                                  

prosecutorial proceedings.  

                                               



                                                                                                                                              -18-                                                                                                                                      7098
  


----------------------- Page 19-----------------------

                            A number of other states use a similar approach in the elder fraud and elder                                                                     



abuse context.                  Oregon, for instance, allows the State to recover "costs of investigation                                                   



and penalties" of up to $25,000 if it prevails in an elder fraud case, but it has no parallel                                                                           

                                                                                                                                 44       In  fact,  Oregon  law  

provision   allowing   cost   recovery   if   the   accused   prevails.                                                                                                        



specifically  provides civil immunity to "[a]nyone participating in good faith in the  

                                                                                                                                                                                



making of a report of elder abuse and who has reasonable grounds for making the  

                                                                                                                                                                                

report."45   Washington, similarly, provides that "a prevailing plaintiff" in an elder fraud  

                                                                                                                                                                             



or abuse case "shall be awarded his or her actual damages, together with the costs of the  

                                                                                                                                                                                 

suit, including a reasonable attorneys' fee,"46  but it makes no provision for cost recovery  

                                                                                                                                                                     

in the other direction47  and in fact provides immunity from civil liability for anyone who  

                                                                                                                                                                               

makes a good-faith report of elder fraud.48   California uses the same approach, allowing  

                                                                                                                                                                     



the State to recover costs from the other parties but not allowing these other parties to  

                                                                                                                                                                                   

recover costs from the State if they prevail.49   So the cost-recovery mechanism described  

                                                                                                                                                                   



in AS 44.21.415(e) is consistent with the approach used by other states, the approach  

                                                                                                                                                                    



used in at least one other relevant area of Alaska law, and the intent of the legislature in  

                                                                                                                                                                                   



adopting AS 44.21.415 and creating the Office to prosecute elder fraud cases. For all of  

                                                                                                                                                                                   



thesereasons, weconcludethat the cost-recovery mechanismofAS 44.21.415(e) applies  

                                                                                                                                                                         



to elder fraud protective order proceedings brought under AS 13.26.207-.209.  

                                                                                                                                                                       



              44            OR. R        EV. S      TAT.  124.125 (2015).            



              45            OR. R        EV. S      TAT.  124.075 (2015).            



              46            WASH. R             EV. C      ODE   74.34.200 (2016).                              



              47  

                                      

                            See id.  



              48            WASH. R             EV. C      ODE   74.34.050 (2016).                              



              49            CAL. W           ELF. & I         NST . C       ODE   15657.5(a) (West 2016).                      



                                                                                       -19-                                                                                  7098
  


----------------------- Page 20-----------------------

                            Having concluded that AS 44.21.415(e) applies to these protective order                                                                       



proceedings, we reason that Civil Rule 82 cannot also apply.                                                                        First, Rule 82(a) itself               



dictates that Rule 82 does not apply when fee shifting is "otherwise provided by law."                                                                                                 



In    Vernon    H.,   we   concluded   that   the   fee-shifting   provision  of   AS   13.26.131(d)  



constitutes "a specific statutory scheme that triggers Civil Rule 82(a)'s provision that                                                                

                                                                                                                                                                     50   Thus  

Civil Rule 82 shall not apply when fee shifting is 'otherwise provided by law.' "                                                                                          



we reasoned that AS 13.26.131(d) "entirely displaces Civil Rule 82 in guardianship and  

                                                                                                                                                                              

conservatorship  proceedings."51                                         Here,  similarly,  the  cost-recovery  mechanism  in  

                                                                                                                                                                                



AS  44.21.415(e)  and  2  AAC 60.310  constitutes  a  "specific  statutory  scheme"  that  

                                                                                                                                                                             



"entirely displaces" Rule 82 in elder fraud protective order proceedings.  

                                                                                                                                                         



                            An examination of the Probate Rules leads us to the same conclusion.  

                                                                                                                                                                                       



Probate Rule 1(e) prohibits the application of procedures that would "interfere with the  

                                                                                                                                                                               



unique  character  and  purpose"  of  a  probate  proceeding,  including  the  elder  fraud  

                                                                                                                                                                         

                                                                          52  As OPA has pointed out, the legislature's purpose  

protective proceedings at issue here.                                                                                                                                

                                                                 



in enacting the elder fraud protective order provisions was to enhance OPA's ability to  

                                                                                                                                                                                 

address elder fraud cases in Alaska.53  The legislature gave OPA multiple tools to achieve  

                                                                                                                                                                      



              50            In re Protective Proceedings of Vernon H.                                                   , 332 P.3d 565, 577 (Alaska                  



2014).  



              51            Id.  



              52            The  elder  fraud  protective  order  provisions,  AS  13.26.207-.209,  are  

                                                                                                                                                                              

governed by the Probate Rules because they fall within Title 13 of the Alaska Statutes.  

                                                                                                                                                                                       

See Alaska Rule Prob. P. 1(b) ("These rules govern practice and procedure in the trial  

                                                                                                                                                                

courts in all phases of proceedings brought under Title 13 of the Alaska Statutes . . . .").  

                                                                                                                                                                              



              53            Ch. 71,  10, SLA 2012; see Minutes, S. Judiciary Comm. Hearing on  

                                                                                                                                                                                

S.B. 86, 27th Leg., 1st Sess. 1:40-1:46 (Feb. 21, 2011) (testimony of Kelly Henriksen,  

                                                                                                                                                               

Assistant Att'y Gen.) (describing the problem of elder fraud in Alaska as the motivation  

                                                                                                                                                               

                                                                                                                                                         (continued...)  



                                                                                      -20-                                                                                 7098
  


----------------------- Page 21-----------------------

this goal; the provision for ex parte protective orders, in particular, indicates that the                                                            



                                                                                                                                                         54  

legislature clearly intended to give OPA significant power to address the problem.                                                                            



Because Rule 82 allows an award of attorney's fees to the prevailing party in every civil  

                                                                                                                                                    

         55  applying Rule 82 to these proceedings would subject the Office to significant  

case,                                                                                                                                    



liability for attorney's fees.  We have concluded in similar contexts that the fear of an  

                                                                                                                                                        



adverse award could significantly chill the willingness of a petitioner to commence  

                                                                                                                                        

protective proceedings in the public interest.56                                     Here, too, the specter of Rule 82 fees in  

                                                                                                                                                         



any case where OPA does not prevail could significantly chill OPA's willingness and  

                                                                                                                                                      



ability to pursue cases under the elder fraud provisions.  Such a result would undermine  

                                                                                                                                         



the legislature's very purpose in creating this mechanism for addressing elder fraud.  In  

                                                                                                                                                         



sum, applying Rule 82 to the elder fraud protective order provisions would "interfere  

                                                                                                                              

                                                                                                                    57    Probate  Rule  1(e)  

with  the  unique  character  and  purpose"  of  these  proceedings.                                                                                

                                                                                             



therefore dictates that Rule 82 must not apply here.  

                                                                                               



            53(...continued)  



for  the  bill).  



            54          See  AS   13.26.207.  



            55          Alaska  R.  Civ.  P.  82(a).  



            56          See   Wetherhorn   v.  Alaska  Psychiatric  Inst .,   167   P.3d   701,   703   (Alaska  



2007)  (concluding  that  there  is  no  basis  for  an  attorney's  fee  award  in  civil  commitment  

actions);  Cooper  v.  State,  638  P.2d  174,  178  (Alaska  1981)  (declining  to  award  such  fees  

in  CINA  cases).  



            57          We reached a similar conclusion in  Vernon H., where we explained that  

                                                                                                                                                     

Civil Rule 82 could not apply because it would " 'interfere with the unique character and  

                                                                                                                                                      

purpose'  of  guardianship  and  conservatorship  proceedings"  in  violation  of  Probate  

                                                                                                                                              

Rule 1(e). In re Protective Proceedings of Vernon H., 332 P.3d 565, 577 (Alaska 2014)  

                                                                                                                                                  

(quoting Alaska Rule Prob. P. 1(e)).  

                                                        



                                                                          -21-                                                                     7098
  


----------------------- Page 22-----------------------

                                        Applying Rule 82 would also conflict with the legislature's evident intent                                                                                                                                  



to keep costs low while giving OPA these tools for addressing elder fraud. As discussed                                                                                                                                                  



above,   this   concern   was   the   precise   reason   the   legislature   created  a   cost-recovery  



mechanism when it established the Office of Elder Fraud and Assistance.                                                                                                                                                               Applying  



Rule   82   to   elder   fraud   cases   brought   by   the   Office   would   entirely   undermine   the  



legislature's purpose in creating this cost-recovery scheme.                                                                                                                       In addition, our conclusion                       



that Rule 82 does not apply is consistent with the legislature's decision to model the elder                                                                                                                                                           

fraud protective order statute on the provisions for domestic violence protective orders,                                                                                                                                                                        58  



which- again - do not provide for an award of attorney's fees against the petitioner.59  

                                                                                                                                                                                                                                                                         



                                        Accordingly,  in  the  context  of  elder  fraud  protective  orders  under  

                                                                                                                                                                                                                                                  



AS  13.26.207-.209,  we  conclude  that  the  cost-recovery  mechanism  established  by  

                                                                                                                                                                                                                                                             

                                                                                                                                                          60       And because that cost-recovery  

AS 44.21.415(e) entirely displaces Civil Rule 82.                                                                                                                                                                           

                                                                                                                                                



mechanism does not allow either the person accused of elder fraud or the protected  

                                                                                                                                                                                                                                         



                    58                  Minutes, H. Finance Comm. Hearing on S.B. 86, 27th Leg., 2d Sess. 1:44-                                                                                                                                       



 1:48   (Mar. 1, 2012) (testimony of Kelly Henriksen, Assistant Att'y Gen.); Minutes,                                                                                                                                                     

S.  Judiciary Comm. Hearing on S.B. 86, 27th Leg., 1st Sess. 1:35-1:36 (Apr. 11, 2011)                                                                                                                                                              

(testimony of Sen. Hollis French); Minutes, S. Judiciary Comm. Hearing on S.B. 86,                                                                                                                                                                          

27th Leg., 1st Sess. 1:53-1:55 (Feb. 21, 2011) (testimony of Kelly Henriksen, Assistant                                                                                                                                                   

Att'y Gen.).   



                    59                  AS 18.66.100(c)(14) (providing that a domestic violence protective order  

                                                                                                                                                                                                                                                      

may "require the respondent to pay costs and fees incurred by the petitioner").  

                                                                                                                                                                                                        



                    60                  Although the regulation interpreting AS 44.21.415 suggests that Rule 82  

                                                                                                                                                                                                                                                              

might apply in proceedings brought by the Office, specifying that the Office can seek a  

                                                                                                                                                                                                                                                                  

standard fee recovery fromthe defendant "unless the court finds justification for a higher  

                                                                                                                                                                                                                                                

award under Alaska Rule of Civil Procedure 82," for the reasons explained above we  

                                                                                                                                                                                                                                                             

conclude that a fee award under Rule 82 would be inconsistent with the statutory scheme  

                                                                                                                                                                                                                                               

established by AS 44.21.415.  See 2 AAC 60.310; AS 44.21.415(e).  

                                                                                                                                                                     



                                                                                                                             -22-                                                                                                                      7098
  


----------------------- Page 23-----------------------

                                                                                                                                

person to recover attorney's fees from OPA, no fees are available to Sidney or Jean R.  



                    

in this case.  



                                                                                                                           

                    Jean's estate argues that a fee scheme that does not provide for a fee award  



                                                                                                                             

against OPA "promotes unnecessary or vindictive litigation sin[c]e the petitioner need  



                          

not worry about an adverse fees award."  But again, the legislature chose not to create  



                                                                                                                           

a  fee-shifting  mechanism  that  might  act  as  such  a  check  on  OPA's  elder  fraud  



                                                                                                                        

prosecutions,   evidently   trusting   that   the   State's   limited   resources   and   OPA's  



                                                                                                                            

prosecutorial discretion would lead the Office to focus on the most meritorious elder  



                                                                                                                              

fraud cases.   Here, the superior court was understandably concerned that OPA had  



                                                                                                                            

imposed significant costs on Jean and Sidney by pursuing an elder fraud protective order  



                                                                                                                               

based on allegations that were ultimately found to be "entirely without merit."  On the  



                                                                                                                                     

other hand, OPA did have some evidentiary basis for its petition at the time of filing:  



                                                                                                                      

The record indicates that theOfficereviewed bank statements, subpoenaed and reviewed  



                                                                                                                           

financial records,  interviewed  Shelley  and  Geoffrey,  communicated  with the Adult  



Protective Services case worker in contact with Jean, and reviewed documents related  



                                                                                                                               

to the financial expenditures at issue. Further investigation, of course, eventually led the  



                                                                                                                                 

court to conclude that Sidney's expenditures were not fraudulent and that Sidney had in  



                                                                                                                              

fact provided loving care to her mother.  But this ultimate result cannot change the fact  



                                                                                                                               

that the legislature created a cost-allocation scheme under AS 44.21.415(e) that does not  



                                                                 

permit an award of attorney's fees against OPA.  



                                                                                                                                

                    We  therefore  reverse  the  superior  court's  award  of  attorney's  fees  in  



                                                                                             

connection with the elder fraud protective order proceeding.  



                                                              -23-                                                         7098
  


----------------------- Page 24-----------------------

                B.	             The Superior Court Did Not Err In Denying Attorney's Fees Against                                                                                         

                                OPA In The Conservatorship Proceeding.                                      



                                On   cross-appeal,   Jean's   estate   and   Sidney   also   challenge   the   superior  



 court's denial of fees in the separate conservatorship proceeding. In reviewing this                                                                                                               



 decision, we first note that the superior court properly concluded that AS 13.26.131(d)                                                                                      



 is the applicable statute.                                If there was any doubt as to its applicability at the time of the                                                                          



 superior court's order, our opinion in                                                Vernon H.                has since clarified that AS 13.26.131(d)                       



                                                                                                                                                                   61  

 applies                "in          every              guardianship                          or         conservatorship                             case."                  Accordingly,  



                                                                                                                                                                    

 "AS   13.26.131(d)   entirely   displaces   Civil   Rule   82   in   [this]   conservatorship  

proceeding[]."62  



                                                                                                                                                                                                

                                By its plain terms, AS 13.26.131(d) allows a fee award only against a party  



                                                                                                                                                                                           

 who "initiated a proceeding under this chapter that was malicious, frivolous, or without  

                             63        The  superior  court  found  that  OPA,  by  continuing  to  litigate  the  

                                                                                                                                                                                                    

just  cause." 



 conservatorship proceeding that was brought by Shelley, did not "initiate a proceeding"  

                                                                                                                                                                               



within the meaning of that provision. In continuing to litigate the conservatorship, OPA  

                                                                                                                                                                                                  



 took the role of an interested party, but that involvement did not convert OPA into the  

                                                                                                                                                                                                      



 initiator of the proceeding.  

                                    



                                Sidney now argues that OPA "acted as a party from the very beginning of  

                                                                                                                                                                                                        



 the case"  because OPA's lawyers consulted with Shelley and, according to Sidney's  

                                                                                                                                                                                 



 allegations, OPA's lawyers actually prepared the revised conservatorship petition that  

                                                                                                                                                                                                    



was submitted in Shelley's name.   But the superior court found that even Shelley's  

                                                                                                                                                                                      



 amended petition was "signed personally by [Shelley], and not by counsel for OPA[]"  

                                           



                61               Vernon H               ., 332 P.3d at 577.             



                62              Id.   



                63              Emphasis added.   



                                                                                                  -24-	                                                                                          7098
  


----------------------- Page 25-----------------------

 and that "[t]he case was initially filed by [Shelley] . . . and [there was] no reason to                                                                                                                                                                                                                                                                                                                                                                                                 



believe   that  she   was   prompted   to   do   so   by   OPA[]."     Given   that   Shelley   filed   the  



 conservatorship petition, it is clear that she initiated the proceeding within the meaning                                                                                                                                                                                                                                                                                                                                                          



 of AS 13.26.131(d).                                                                                                   Thus the superior court correctly concluded that OPA had not                                                                                                                                                                                                                                                                                               



initiated the proceeding, and therefore no fee award against OPA was available under                                                                                                                                                                                                                                                                                                                                                                                 



AS 13.26.131(d).   



                                                                            The superior court was justifiably puzzled by OPA's decision to continue                                                                                                                                                                                                                                                                                                  



the litigation, particularly when facts such as the correct names of the passengers on the                                                                                                                                                                                                                                                                                                                                                                                           



 airline tickets had already come to light, and the superior court aptly noted that "[o]ne                                                                                                                                                                                                                                                                                                            



 could second guess the way this case was litigated."                                                                                                                                                                                                                                                But we agree that OPA's decision                                                                                                                  



to continue litigating the conservatorship cannot trigger the provision for fees against the                                                                                                                                                                                                                                                                                                                                                                                          



initiator of the proceeding, even if that decision may have prolonged the case and raised                                                                                                                                                                                                                                                                                                                                                                            



 costs   for   all   parties   involved.     And   in   the   settlement   agreement   reached   in   the  



 conservatorship proceeding, Jean and Sidney agreed not to seek fees against Shelley, the                                                                                                                                                                                                                                                                                                                                                                                             



 only party who might otherwise be subject to fees as the initiator of that proceeding.                                                                                                                                                                                                                                                                                                                                                                                                       



                                                                           Jean's estate and Sidney also argue that a fee award is justified because                                                                                                                                                                                                                                                  



 collateral estoppel or res judicata should have barred OPA's continued litigation of the                                                                                                                                                                                                                                                                                                                                                                                            



 conservatorship petition after the elder fraud proceeding was closed, making OPA's                                                                                                                                                                                                                                                                                                                                                                           



 continued litigation "vexatious, frivolous, not in good faith and without just cause." But                                                                                                                                                                                                                                                                                                                                                                                      



we need not reach this issue given our conclusion that, as a threshold matter, a fee award                                                                                                                                                                                                                                                                                                                                                                          



under   AS   13.26.131(d)   is   not   available   against   a   party   who   did   not   initiate   the  

proceeding.64  



                                      64                                   We   also   note   that   AS   13.26.230   provides   that,   unless   "otherwise  



 compensated for services rendered, any visitor,lawyer,physician, conservator,                                                                                                                                                                                                                                                                                                                                                                    or special   

 conservator appointed in a protective proceeding is entitled to reasonable compensation                                                                                                                                                                                                                                                                                                                                

                                                                                                                                                                                                                                                                                                                                                                                                                             (continued...)  



                                                                                                                                                                                                                                         -25-                                                                                                                                                                                                                               7098
  


----------------------- Page 26-----------------------

                          Lastly, Sidney and Jean's estate argue that AS 13.26.353(c) justifies a fee                                                                



award.   But AS 13.26.353(c) is not a fee-shifting statute.                                                     Rather, it provides a statutory           



cause of action against "third part[ies] who fail[] to honor a properly executed statutory                                                                

                                                             65     Pursuing formal adjudication of a conservatorship  

form power of attorney. . . ."                                                                                                             



petition through the court system is not a "fail[ure] to honor" a power of attorney but  

                                                                                                                                                                     



rather an explicit recognition of its legitimacy.  Here, accordingly, no fees are available  

                                                                                                                                                         



under AS 13.26.353(c).  

                     



                          For  these  reasons,  we  conclude  that  the  superior  court  did  not  err  in  

                                                                                                                                                                      



declining to award fees against OPA in the conservatorship proceeding.  

                                                                                                                       



V.           CONCLUSION  



                          We REVERSE and VACATE the superior court's fee award in the elder  



fraud protective order proceeding.   We AFFIRM the denial of attorney's fees in the  

                                                                                                                                                                     



conservatorship proceeding.  

                                                          



             64(...continued)  



                                                                                                                                                                     

from the estate."  See In re S.H., 987 P.2d 735, 742 (Alaska 1999) (holding that the  

                                                                                                                                                                    

petitioner's  costs  in  a  conservatorship  proceeding  should  be  charged  against  the  

                                                                                                                                                                       

respondent's estate).  None of the parties has cited this statute, and it does not appear to  

                                                                                                                                                   

affect the result in  this case.                               We therefore express no  opinion  on the relationship  

                                                                                                     

between AS 13.26.131 and AS 13.26.230 in other cases.  



             65           AS 13.26.353(c).  

                                   



                                                                                 -26-                                                                            7098
  

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