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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Rae v. State, Dept. of Corrections (10/27/2017) sp-7209

Rae v. State, Dept. of Corrections (10/27/2017) sp-7209

           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                                        



MICHAEL  LEE  RAE,                                               )  

                                                                 )          Supreme  Court  No.  S-16006  

                                 Appellant,                      )  

                                                                                                                                        

                                                                 )          Superior Court No. 3SW-15-00003 CI  

           v.                                                    )  

                                                                 )                               

                                                                            O P I N I O N  

                     

STATE OF ALASKA,                                                 )                   

                                    

DEPARTMENT OF CORRECTIONS, )                                                                                         

                                                                            No. 7209 - October 27, 2017  

                                                                 )
  

                                 Appellee.                       )
  

                                                                 )
  



                                                                                                               

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

                                                                                        

                      Judicial District, Seward, Carl Bauman, Judge.  



                                                                                                   

                      Appearances:                Michael   Lee   Rae,   pro   se,  Anchorage,  

                                                                                                         

                      Appellant.          Matthias  Cicotte,  Assistant  Attorney  General,  

                                                                                                            

                      Anchorage, and Jahna Lindemuth, Attorney General, Juneau,  

                            

                      for Appellee.  



                                                                                                                 

                      Before:          Stowers,  Chief  Justice,  Maassen,  Bolger,  and  

                                                                                        

                      Carney, Justices.  [Winfree, Justice, not participating.]  



                                            

                      MAASSEN, Justice.  



I.         INTRODUCTION  



                                                                                                                                 

                      A prisoner filed a complaint against the Department of Corrections alleging  



                                                                                                                                         

that he was held illegally and demanding his release.  The superior court dismissed the  



                                                                                                                                

complaint for failing to state a claim upon which relief could be granted.  The prisoner  


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

 appeals.    Because we agree that the complaint failed to state a cognizable claim, we                                                                                                                                                                                                                                                                      



 affirm the dismissal.                      



 II.                         FACTS AND PROCEEDINGS                                        



                                                        Michael   Rae   is   a   prisoner   in   the   custody   of   Alaska's   Department  of  



 Corrections (DOC).  In January 2015 he filed a complaint (labeled a "petition") in the                                                                                                                                                                                                                                                                       



 superior court alleging that DOC lacked the constitutional authority to hold him.                                                                                                                                                                                                                                                                 In an   



 attached motion for expedited consideration he asserted that he had been "subjected to                                                                                                                                                                                                                                                                            



numerous forms of cruel and unusual punishments" including solitary confinement and                                                                                                                                                                                                                                                                         



 impediments to his ability to conduct legal research.                                                                                                                                                                        



                                                         In June 2015 the superior court sua sponte dismissed the complaint with                                                                                                                                                                                                                        



prejudice because Rae failed to "advance any cognizable or discernable claim."                                                                                                                                                                                                                                                                         Rae  



 filed both a motion for reconsideration and a notice of his intent to seek a default,                                                                                                                                                                                                                                                    



 following up with a 75-page application for a default judgment.                                                                                                                                                                                                                       The superior court                                           



 denied reconsideration, concluding that "Rae's main point of contention is that [DOC]                                                                                                                                                                                                                                                       



has no legal authority to hold him or exist at all" and that the "argument is without merit                                                                                                                                                                                                                                                          



 and the relief sought is not available to Rae."                                                                                                                                                



                                                        Rae appeals.                                           



 III.                        STANDARDS OF REVIEW                                                                



                                                         "We reviewamotion                                                                      to dismiss de novo, construing the                                                                                                          complaint liberally   



                                                                                                                                                                                           1  

 and accepting as true all factual allegations."                                                                                                                                                                                                                                                                                   

                                                                                                                                                                                                   We "exercise our independent judgment  



                                                                                                                 2  

                                                                                                                                                                                                                                                                                                                                       

 in interpreting court rules,"  and we review questions of constitutional law and statutory  



                             1                          Pedersen v. Blythe                                                               , 292 P.3d 182, 184 (Alaska 2012) (citing                                                                                                                                               Caudle v.   



Mendel, 994 P.2d 372, 374 (Alaska 1999)).                                                                                                               



                            2                           Shea v. State, Dep't of Admin., Div. of Ret. &Benefits, 204 P.3d 1023, 1026  

                                                                                                                                                                                                                                                                                                                                                      

                                                                                                                                                                                                                                                                                                                    (continued...)  



                                                                                                                                                                                                                                                                                                                                                       7209  

                                                                                                                                                                                -2- 


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                                      3  

interpretation de novo.                   But we "review the adequacy of the superior court's assistance                           

to a pro se litigant for abuse of discretion."                           4  



IV.	       DISCUSSION  



                                                                                                                                

           A.	         The Superior Court Did Not Err When It Dismissed Rae's Complaint  

                                                                  

                       For Failure To State A Claim.  



                                                                                                                                             

                       A "complaint should not be dismissed 'unless it appears beyond doubt that  



                                        

the plaintiff can prove no set of facts in support of his claim' that would entitle him to  



                                                                                                                                                

some form of relief, even if the plaintiff requests a type of relief he is not entitled to  



              5  

obtain."                                                                                                              

                 This stringent standard for dismissal was met in this case.  



                                                                                                                                      

                       Rae's complaint posed five "question[s]of law."  First, Rae asked whether  



                                                                                                                                              

DOC is covered by the Alaska Administrative Procedure Act, to which he provided the  



                                                                                                                                               

answer:          "No."        Second, he asked  the court to clarify  whether  DOC's creation  by  



                                                                                                                                              

executive  order  was  constitutional.                            Third,  he  asked  whether  DOC's  creation  by  



                                                                                                                                                     

executive order violated the separation of powers doctrine, to which he answered "yes."  



                                                                                            

Fourth, Rae asserted that all the laws and regulations authorizing DOC's custody over  



                                                                                                                                                     

him were "ex post facto."  His last question appears to be an amalgam of the first four:  



                                                                                                                                               

He concludes that his detention by DOC violates the constitution, the separation of  



                                                                                                                                      

powers doctrine, and generally "the rights provided by 'we' the people."  The answers  



                                                                                                                                                     

to none of these "questions of law" depended on the resolution of disputed issues of fact.  



           2(...continued)  



               

(Alaska 2009).  



           3           State,  Dep't  of  Revenue  v.  Andrade ,  23  P.3d  58,  65  (Alaska  2001).  



           4           Sarah  D.  v.  John  D.,  352  P.3d  419,  428  n.24  (Alaska  2015).  



           5          Larson   v.   State,  Dep't   of   Corr.,   284   P.3d 1, 6 (Alaska   2012)   (quoting  



Guerrero  v.  Alaska  Hous.  Fin.  Corp,  6  P.3d  250,  254  (Alaska  2000)).  



                                                                                                                                               7209  

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And the superior court could, and did, properly determine that the answers to them                                                                                                                     



would not provide Rae the relief he wanted:                                                                      his immediate release from DOC custody.                                                                       



                                  Rae argues on appeal that AS 33.30.051 and other statutory provisions                                                                                          

                                                                                                                                                                                                           6     This  

regarding prisoners in DOC custody are unconstitutional "ex post facto" laws.                                                                                                                                   



argument fails for at least two reasons.  First, the statutes Rae cites do not define any  

                                                                                                                                                                                                                   

criminal conduct,7 andsecond, they wereenacted well beforeRaecommittedtheoffenses  

                                                                                                                                                                                                        

for which he was imprisoned.8                                                    Rae also relies on AS 09.50.310, allowing the attorney  

                                                                                                                                                                                                       



general to bring an action against a person or persons for unlawfully usurping a public  

                                                                                                                                                                                                           



office.  But the statute cannot reasonably be construed to authorize a suit against the  

                                                                                                                                                                                                                    



existence of an entire state agency; besides, it does not purport to grant a private cause  

                                                                                                                                                                                                              



of action.  

                           



                                  We find no merit in any of Rae's other arguments questioning the validity  

                                                                                                                                                                                                         



of  DOC's  existence.                                        Rae  cites  the  fact  that  DOC  is  not  covered  by  the  Alaska  

                                                                                                                                                                                                         



Administrative Procedures Act, but he does not explain why having different procedural  

                                                                                                                                                                                                 



                 6  

                                  See   Doe   v.   State,   189   P.3d   999,  1003  (Alaska   2008)  (explaining that   

provisions   of   the   Alaska   and   United   States   Constitutions   "bar   the   legislature   from  

enacting any law that 'punishes as a crime an act previously committed, which was                                                                                                                                 

innocent when done; which makes more burdensome the punishment for a crime, after                                                                                                                                

its commission; or which deprives one charged with a crime of any defense available                                                                                                                  

according to law at the time when the act was committed.' " (quoting                                                                                                            State v. Anthony                           ,  

816 P.2d 1377, 1378 (Alaska 1991))).                                         



                 7                AS 33.30.051(a) states in full: "A person convicted of an offense against  

                                                                                                                                                                       

the  state  shall  be  committed  to  the  custody  of  the  commissioner  for  the  term  of  

                                                                                                                                                                                                                      

imprisonment that the court directs."  See also AS 33.30.011 (outlining duties of DOC  

                                                                                                                                                                                                               

commissioner); AS 33.30.021 (authorizing DOC to adopt regulations); AS 33.30.031  

                                                                                                                                                                                                  

(authorizing DOC to delegate to private prison contractors).  

                                                                                                                         



                 8                See ch. 88,  6, SLA 1986 (also adding AS 33.30.011, .021, and .031).  

                                                                                                                                                                                                       



                                                                                                                                                                                                                         7209  

                                                                                                           -4- 


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

                                                                              9  

rules makes DOC an illegal entity.                                                He points to the criminal-administration provisions                                           



of the Territorial Organic Act and Statehood Act and claims that they preclude later                                                                                                         



changes in the law like the creation of DOC, and he argues that article I, section 12 of                                                             



the Alaska Constitution lays out a specific plan for "criminal administration" that also  



conflicts with DOC's creation. But article I, section 12 provides broad goals for criminal                                                                                           

                                                                                                                                                                              10    And the  

administration; it does not purport to mandate the minutiae of its execution.                                                                                                                   



Constitution itself, in article III, section 23, clearly empowers the executive to adjust the  

                                                                                                                                                                                                 

organization of its agencies.11  

                                                                       



               9               Cf. Dep't of                   Corr.  v.  Kraus, 759 P.2d 539,                                             540   & n.2                (Alaska 1988)   



(reviewing prison disciplinary proceedings even though "[i]t is clear that review of                                                                                                              

prison disciplinary proceedings is not covered by the Alaska Administrative Procedure                                                                                           

Act").   



                10             Article I, section 12 of the Alaska Constitution provides in full:  

                                                                                                                                                                                    



                               Excessive  bail  shall  not  be  required,  nor  excessive  fines  

                                                                                                                                                             

                               imposed,  nor  cruel  and  unusual  punishments  inflicted.  

                                                                                                                                                                          

                               Criminal administration shall be based upon the following:  

                                                                                                                                                                          

                               the need for protecting the public, community condemnation  

                                                                                                                                         

                               of the offender, the rights of victims of crimes, restitution  

                                                                                                                                                 

                               from the offender, and the principle of reformation.  

                                                                                                                                                       



                11             Article III, section 23 of the Alaska Constitution states, in part:   "The  

                                                                                                                                                                                          

governor  may  make  changes  in  the  organization  of  the  executive  branch  or  in  the  

                                                                                                                                                                                                

assignment of functions among its units which he considers necessary for efficient  

                                                                                                                                                                                    

administration.  Where these changes require the force of law, they shall be set forth in  

                                                                                                                                                                                                   

executive orders."  

                                            



                               See AS 24.08.210 (stating that "[a]n executive order proposing a change  

                                                                                                                                                                                      

in the executive branch and requiring the force of law under art[icle] III, [section] 23"  

                                                                                        

must be presented to both houses of the legislature, and will become effective "[u]nless  

                                                                                                                                                                                   

disapproved by a special concurrent resolution introduced in either house, concurred in  

                                                                                                                                                                                                   

by a majority of the members in joint session").  

                                                                                        



                                                                                                                                                                                            7209  

                                                                                                 -5- 


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

                                                   The   superior   court   was   correct   to   decide   that   Rae,   in   posing   his   five  



"questions of law" that could be readily answered in DOC's favor, failed to state a claim                                                                                                                                                                                                                      



on which relief could be granted.                                                             



                         B.                        The Court Did Not Err Procedurally.                                                            



                                                   Rae argues that the superior court erred procedurally when it dismissed the                                                                                                                                                                                               



complaint.    First, he appears to argue that the language of Alaska Civil Rule 7(a) -                                                                                                                                                                                                                                       



"[t]here shall be a complaint and an answer" - means that an action cannot be dismissed                                                                                                                                                                                                            



before an answer is filed.                                                                       But Alaska Civil Rule 12(b) expressly allows a defendant to                                                                                                                                                                    



 short-cut the process by moving to dismiss before filing an answer.                                                                                                                                                                                             And while a court                              



 should be very hesitant to dismiss a case on its own motion before the answer is filed,                                                                                                                                                                                      



we have never held that a sua sponte dismissal is impermissible where it is obvious the                                                                                                                                                                                                                                     



complaint is fatally deficient.                                                                                   



                                                   Rae also faults the superior court for failing to cite case law, statutes, or                                                                                                                                                                                               



regulations when it dismissed his complaint. But findings are not required for dismissal                                                                                                                                                                                                            



orders, as they are for rulings following a bench trial or deciding a motion for injunctive                                                                                                                                                                                                       



                       12                                                                                                                                                                                                         13  

relief.                                                                                                                                                                                                                                                                                                                    

                                 And because we review dismissal orders de novo,                                                                                                                                                          we are not reliant on the  



                                                                                                                                                                                                                                                                                                

 superior court's rationale, as we often are when reviewing discretionary or fact-based  

decisions.14  



                          12                       Alaska  R.  Civ.  P.  52(a).  



                          13                      Pedersen  v.  Blythe,  292  P.3d   182,   184  (Alaska  2012).  



                          14                       See,   e.g.,   Crittell   v.  Bingo,   36   P.3d   634,   639   (Alaska   2001)   ("The   core  



purpose  of  the  rule  [requiring  superior  court  to  find  facts  specifically  in  bench  trial],  then,  

is   to   enable   the   appellate   court   to   conduct   a   meaningful   review   of   the   trial   court's  

decision-making  process.").  



                                                                                                                                                                                                                                                                                                                                      7209  

                                                                                                                                                               -6- 


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

                                    Rae appears to argue that DOC's failure to file an answer entitled him to   



 a default judgment. The court dismissed the case on June 1, 2015. Rae filed his "intent"                                                                                                                       



 to file a default judgment on June 8 and the actual application several weeks later. There                                                                                                                          

 can be no right to a default judgment after the case has been properly dismissed.                                                                                                                                  15  



                  C.	               Dismissal Did Not Violate Rae's Right To A Jury Trial Or His Right  

                                                                                                                                                                                               

                                    To Petition The Government.  

                                                                                 



                                    Rae asserts that the court violated his right to a trial.  The right depends on  

                                                                                                                                                                                                                              



 the existence of a factual issue to be decided by a trier of fact.  When the superior court  

                                                                                                                                                                                                                       



properly concluded, as a matter of law, that Rae's complaint failed to state a claim for  

                                                                                                                                                                                   



 relief under Civil Rule 12(b)(6), nothing remained to be tried.  The court did not violate  

                                                                                                                                                                                                                  

 Rae's right to a trial.16  

                                         



                                                                                                                                                                                                                                 

                                    Rae also asserts a violation of his right to petition the government for a  



                                                                                                                                                                                                                          

 redress  of  grievances,  but  that  right  is  concerned  with  a  person's  access  to  the  



                  15                Moreover, under Alaska Civil Rule 55(g) "[n]o default judgment shall be                                                                                                                   



 entered against the state or an officer or agency thereof unless the claimant establishes                                                                                                              

 the claim or right to relief by evidence satisfactory to the court."                                                                                                        Given that the court                     

 dismissed the complaint for failure to state a claim, Rae's complaint certainly failed to                                                                                                                    

provide such satisfactory evidence.                                 



                  16                See Foondle v. O'Brien, 346 P.3d 970, 976 n.36 (Alaska 2015) ("We have  

                                                                                                                                                                                                                        

 held that the summary judgment standard, limiting summary disposition to cases in  

                                                                                                                                                                                                                              

 which there is no genuine issue of material fact and the moving party is entitled to  

                                                                                                                                                                                                                              

judgment as a matter of law, 'is adequate to prevent the violation of a party's due process  

                                                                                                                                                                                                                 

 right or right to a jury trial,' and the same is true of the standards for dismissal if properly  

                                                                                                                                                                                                              

 applied." (quoting Capolicchio v. Levy, 194 P.3d 373, 380-81 (Alaska 2008))); see also  

                                                                                                                                                                                                                         

 Smith v. Kitchen, 156 F.3d 1025, 1029 (10th Cir. 1997) ("The district court's dismissal  

                                                                                                                                                                                                            

 of Smith's complaint under [federal] Rule 12(b)(6) did not violate Smith's right to a jury  

                                                                                                                                                                                                                        

 trial under the Seventh Amendment: When Smith failed to plead any facts that would  

                                                                                                                                                                                                       

 overcome the defendants' complete defenses, there were no facts to be 'tried' by a  

                                                                                                                                                                                                                                

jury.").  

                      



                                                                                                                                                                                                                                 7209  

                                                                                                               -7- 


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

 courthouse; what comes afterwards is more properly analyzed for its compliance with                                                                          



                         17  

 due process.                                                                                                                                                      

                              And "the standards for dismissal if properly applied" are "adequate to  

                                                                                                      18    In sum, we see no violation of  

                                                                                                                                                                   

                                                                                          

prevent the violation of a party's due process right." 



                                                                                                                                                   19  

Rae's constitutional rights in the superior court's dismissal of his complaint.                                                                         

                                                                                                                               



             D.	          The  Superior  Court  Did  Not  Abuse  Its  Discretion  By  Failing  To  

                                                                                                                                                                 

                          Provide Substantive Legal Assistance To Rae.  

                                                                                                               



                          Finally, Rae asserts that the superior court erred when it dismissed his  

                                                                                                                                                                 



 complaint because, as a self-represented litigant, his burden of complying with the usual  

                                                                                                                                                             



procedural rules was "relaxed" and because the court should have advised him of defects  

                                                                                                                                                          



 in his complaint before dismissing the action sua sponte.  We disagree.  

                                                                                                                        



                          It is well established that "[t]he pleadings of pro se litigants 'should be held  

                                                                                                                                                               

to less stringent standards than those of lawyers.' "20  

                                                                                                                                                               

                                                                                                         As we noted in Breck, "the trial  



                                                                                                                                                                    

judge should inform a pro se litigant of the proper procedure for the action he or she is  



                                                                         21  

                                                                                                                                                              

 obviously attempting to accomplish."                                          But judges must be careful to maintain their  



             17           Carol Rice Andrews,                      A Right of Access to Court Under the Petition Clause                                   



 of the First Amendment: Defining the Right                                        , 60 O     HIO  ST. L.J. 557, 646-47 (1999) ("The                        

Petition Clause . . . protects the initial filing of the complaint, and the Due Process                                                                 

 Clause, and its somewhat lower 'reasonableness' standard of protection, steps in from  

                                                                                       

that point forward." (footnotes and citations omitted)).  



             18	          Foondle, 346 P.3d at 976 n.36.  

                                                                             



             19           Rae also argues that he was denied "equaltreatment and protections of [the]  

                                                                                                                                                               

 laws," but he fails to expand on this argument.  

                                                                                             



             20           Rathke v. Corr. Corp. of Am., 153 P.3d 303, 308-09 (Alaska 2007) (quoting  

                                                                                                                                                       

Breck v. Ulmer, 745 P.2d 66, 75 (Alaska 1987)).  

                                                                                 



             21           Breck, 745 P.2d at 75.  

                                                               



                                                                                                                                                                   7209  

                                                                                 -8- 


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

impartiality; they therefore may not act as advocates for pro se litigants on substantive                                                                                                                                                      

legal issues.                          22  



                                                                                                                                                                                                                                                      

                                           Here, the superior court observed that Rae's complaint "consists primarily  



                                                                                                                                                                                                                                                            

ofincoherent citations tocases, administrativecodeprovisions,executiveorders,treaties,  



                                                                                                                                                                                                                                                                      

statutes, the Uniform Commercial Code, and other legal authorities and sources."  The  



                                                                                                                                                                                                                                                                             

court found that "[t]he only decipherable portions are allegations that the Department of  



                                                                                                                                                                                                                                                                   

Corrections is an illegal entity without authority to hold Rae," which as a claim for relief  



                                                                     

was "without merit."  



                                                                                                                                                                                                                                                 

                                           What Rae needed to correct these obvious deficiencies was not procedural  



                                                                                                                                                                                                                                                                          

advice.  He filed a complaint which - though mislabeled as a petition - presented the  



                                                                                                                                                                                                                                                

questions he wanted the court to decide, and the court accepted the filing as a complaint  



                                                                                                                                                                                                                                                               

and considered the claims on their merits. Even if Rae could have benefited from advice  



                                                                                                                                                                                                                                                      

on how to shape his grievances into cognizable legal claims that would survive dismissal  



                                                             23  

                                                                                                                                                                                                                                                                         

- which we doubt                                                    - that is not help the court could give; it would have crossed the  



                     22                   McLaren v. McLaren                                                   , 268 P.3d 323, 334 (Alaska 2012) ("Requiring the                                                                                                         



superior court to inform pro se litigants of all the relevant substantive law would put a                                                                                                                                       

trial judge in the precarious position of acting as attorney for an unrepresented party,                                                                                                                                                                        

which is exactly what we [have] sought to avoid . . . .");                                                                                                                       Tracy v. State, Dep't of Health                                              

& Soc.                   Servs.,   Office   of   Children's   Servs.,   279   P.3d   613,   617   n.14   (Alaska   2012)  

("[R]equiring a judge 'to instruct a pro se litigant as to each step in litigating a claim                                                                                                                                                                    

would compromise the court's impartiality in deciding the case by forcing the judge to                                                                                                                                                                                       

act as an advocate for one side.' " (quoting                                                                                                 Bauman v. State, Div. of Family & Youth                                                                            

Servs., 768 P.2d 1097, 1099 (Alaska 1989))).                                                                           



                     23                    Given the baselessness of Rae's central claim - that DOC is an illegal                                                                                                                                              



entity without the authority to hold him - we do not see that any amount of substantive                                                                                                                                                         

amendment could have saved Rae's complaint from dismissal.                                                                                                                                                See Tracy                         , 279 P.3d at     

618 (holding that the superior court did not abuse its discretion by not "advising the                                                                                                                                                                                   

                                                                                                                                                                                                                                         (continued...)  



                                                                                                                                                                                                                                                                                 7209  

                                                                                                                                      -9- 


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

line between procedural assistance and substantive legal advice, and it would have cast                                                                   



                                                     24  

the judge as Rae's advocate.                             



                                                                                                                                                     

                         We conclude that the superior court did not abuse its discretion in failing  



                                                                                                        

to give Rae advice on how to avoid the dismissal of his complaint.  



V.           CONCLUSION  



                                                                                                                     

                         We AFFIRM the judgment of the superior court.  



            23(...continued)  



                                                                                                                                                          

[litigants] that they might amend" where the claim would still be dismissed after any  

                  

potential amendment).  



            24           We note that Rae does allege restrictions on his law library access, the  

                                                                                                                                                           

seizure of his legal papers, and unlawful punitive segregation.  But as best we can tell  

                                                                                                                                                           

from his briefing, these allegations are provided only as background for the "questions  

                                                                                                                                             

of law" he asked the superior court to answer - all having to do with the legality of  

                                                                                                                                                             

DOC's  existence.                     To  the  extent  claims  were  not  readily  discernible  from  Rae's  

                                                                                                                                                     

complaint, the superior court was not required to consider them.  See Rathke, 153 P.3d  

                                                                                                                                                        

at 309 ("[W]here the essence of a pro se litigant's argument is 'easily discerned' from  

                                                        

his briefs, the trial court should consider the pro se litigant's argument, provided that the  

                                                                                                                                                            

applicable law is well established and the opposing party would not be prejudiced by the  

                                                                                                                                                           

court's consideration of the issue." (quoting Wilkerson v. State, Dep't of Health &Social  

                                                                                                                                                      

Servs., Div. of Family & Youth Servs., 993 P.2d 1018, 1022 (Alaska 1999))).  

                                                                                                                                



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