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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Alaska State Commission for Human Rights v. Anderson (8/31/2018) sp-7280

Alaska State Commission for Human Rights v. Anderson (8/31/2018) sp-7280

           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  



                       THE SUPREME COURT OF THE STATE OF ALASKA                                      

ALASKA  STATE  COMMISSION                                       )  

FOR  HUMAN  RIGHTS,  MARTI                                      )          Supreme  Court  No.  S-16197  

BUSCAGLIA,  Executive  Director,                                )  

                                                                )          Superior  Court  No.  3AN-15-10346  CI  

                                Appellant,                      )  


                                                                )          O P I N I O N  

                     v.                                         )  


                                                                )          No. 7280 - August 31, 2018  


DORI LYNN ANDERSON,                                             )  


                                Appellee.                       )  




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


                     Judicial District, Anchorage, Herman G. Walker, Jr., Judge.  


                     Appearances: Stephen Koteff, Alaska State Commission for  


                     Human  Rights,  Anchorage,  for  Appellant.                                   Michael  S.  


                      Schechter,AssistantAttorneyGeneral,Anchorage,and Jahna  


                     Lindemuth, Attorney General, Juneau, for Appellee.  


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


                     and Carney, Justices.  


                     MAASSEN, Justice.  


                     CARNEY, Justice, dissenting.  



                     May the Alaska State Commission for Human Rights limit the attendance  


of third parties at investigative interviews?   This question arises in the context of a  


Commission              investigation           into     a   State   employee's                complaints   of   workplace  

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

discrimination.    The Commission issued a subpoena to interview the complainant's                                                                                                                                                                  

supervisor, who refused to be interviewed unless an employer representative was also                                                                                                                                 

present. On the Commission's petition, the superior court issued an order to show cause                                                                                                                                                                                            

why the supervisor should not be held in contempt.                                                                                                                          The supervisor moved to vacate the                                                                             

order and dismiss the contempt proceeding; the superior court granted the motion on the                                                                                                                                                                                                    

ground that the Commission lacked the legal authority to exclude third parties from its                                                                                                                                                                                                      

investigative interviews.                                                            The Commission appeals.                                       

                                             We conclude that the statutory requirement of a confidential investigation,                                                                                                                               

with   its   specific   limits   on   a   respondent's   access   to   investigative   materials,   clearly  

authorizes the Commission to exclude third parties from investigative interviews.                                                                                                                                                                                                      We  

therefore reverse the superior court's order dismissing the Commission's petition and                                                                                                                                                                                                   

remand for further proceedings.                                                                                

II.                    FACTS AND PROCEEDINGS                             

                       A.                    Background  


                                              1.                    The Alaska Commission for Human Rights  


                                             The Commission for Human Rights is responsible for enforcing Alaska's  



anti-discrimination laws.                                                                 It will accept a complaint from any "person who is aggrieved  


by a discriminatory practice" prohibited by Title 18, Chapter 80, and its executive  



director may file a complaint "when a discriminatory practice comes to [her] attention." 

The Commission staff acts on a complaint by first conducting an informal investigation,  


                       1                     See  AS 18.80.060;                                              Hotel, Motel, Rest., Constr. Camp Emps. &Bartenders                                                                                               

 Union Local 879 v. Thomas                                                                     , 551 P.2d 942, 945 (Alaska 1976).                                                                                       

                       2                     AS 18.80.100.  


                                                                                                                                              -2-                                                                                                                                   7280

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


"promptly   and   impartially."     If   the   investigation  shows   "that   there   is   substantial  

evidenceofanunlawfuldiscriminatorypractice,"theCommission attemptsto "eliminate                                                                                     

or remedy the discriminatory practice through an agreement reached by conference,                                                                               

                                                                4  If no agreement is reached, the executive director may  

conciliation, and persuasion."                                                                               

dismiss the complaint or file an accusation and refer the matter for a hearing before the  



                             These investigations are generally confidential by statute.  With limited  


exceptions, the Commission is prohibited from "mak[ing] public the name of a person  


initiating a complaint or a person alleged to have committed [a discriminatory act or  


practice]  during  an  investigation."6                                           "The  records  of  investigation  and  information  


obtained by the [C]ommission during an investigation . . . are confidential."7  "However,  


the records and information compiled by the [C]ommission during an investigation shall  


be available to the complainant or respondent . . . at least 10 days before a hearing is held  


under AS 18.80.120 or upon receipt by the complainant or respondent" of notice that  



attempts at conciliation have failed, "whichever occurs earlier."    


                             The Commission's staff is authorized by regulation to use a variety of  


investigative methods. These include witness interviews, "inspection of documents and  


              3              AS 18.80.110.

              4             Id.

             AS 18.80.112, .120(a).           

              6              AS 18.80.115.  


              7             Id.  

              8             Id.  

                                                                                          -3-                                                                                 7280

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


premises," and "examination of written submissions of parties and witnesses."                                                                               The   

executive director may "issue subpoenas, subpoenas duces tecum, and other process to                                                                            

compel the attendance of witnesses and the production of testimony, records, papers,                                                                  

                                                   10    Petitions to enforce a subpoena may be filed in superior  

accounts, and documents."                                                                                                                           

court by the Commission, any individual commissioner, or a Commission employee  


authorized by the Commission.11  


                         The focus of this appeal is theCommission'sunwrittenpolicy,followed for  


at least 27  years,12  barring  third  parties from investigative interviews with  "certain  


limited exceptions."   As the Commission describes its policy, third parties may be  


present if the interviewee is "the respondent named in the complaint, or is a member of  


the respondent's 'control group' management, or has managerial responsibility.' "  The  


Commission also allows witnesses to be accompanied by their own attorneys and, if  


necessary, an interpreter or a guardian.  


                         2.           The investigation  


                         The investigation at issue began when an employee filed two complaints  


against her employer, the State of Alaska Department of Health and Social Services  


(DHSS), in August 2014 and February 2015.  The Commission opened an investigation  


headed by investigator Patricia Watts.  DHSS responded to the complaints with a letter  


             9           6  Alaska  Administrative  Code  (AAC)  30.320(a)  (2014).  

             10          AS   18.80.060(c).   

             11          Id .  

             12          The  Commission  offered  affidavits  of  its  former  executive  director,  Paula  

Haley,  and  the  investigations  director,  Nanette  Gay,  to  prove  the  policy's  existence  and  

explain its parameters.   The superior court found that the Commission had a longstanding  

policy  to  conduct  interviews  in  this  way,  and  Anderson  does  not  challenge  that  finding  

on  appeal.   

                                                                               -4-                                                                        7280

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


 from Greta Jones,                                                                              an Equal Employment Opportunity (EEO) program manager for the                                                                                                                                                                                                                                                                

 State.   Jones's letter identified Dori Lynn Anderson as the complainant's supervisor.                                                                                                                                                                                                                                                                                                                                               

                                                                  WhenWattscalledAndersontoscheduleaninterview,Anderson responded                                                                                                                                                                                                                                                        

by email directing Watts to Jones, the EEO manager. Watts replied that she was "within                                                                                                                                                                                                                                                                                                                 

correct procedure to schedule an interview directly with" Anderson and suggested some                                                                                                                                                                                                                                                                                                                             

dates.  According to a memorandum drafted by Watts, Jones called a few days later to  

inform her that Anderson (and another witness whose involvement is not at issue here)                                                                                                                                                                                                                                                                                                                             

had "managerial status that entitled [Jones] to attend the interviews."                                                                                                                                                                                                                                                                                      Watts disputed   

this:   she told Jones that Anderson was "a supervisor but not a high-level manager."                                                                                                                                                                                                                                                                                                                                                            

Jones also said that DHSS would require a subpoena for the witness interviews, and                                                                                                                                                                                                                                                                                                                                       

Watts replied that she would be requesting subpoenas.                                                                                                                                                                                                                           

                                                                  Paula   Haley,   then-executive   director   of   the   Commission,   issued   an  

administrative    subpoena    directing    Anderson    "to    appear   at    the    offices    of    [the  

Commission] . . . to provide testimony" on September 18. On September 14 Jones called                                                                                                                                                                                                                                                                                                                          

Watts "in response to the subpoena" to say that Anderson wanted her to be present at the                                                                                                                                                                                                                                                                                                                                     

interview. Watts                                                                    responded "that the Commission ha[d] to address" whether Jones could  

attend but agreed to discuss rescheduling.                                                                                                                                                                        In a letter a few days later Watts confirmed                                                                  

a new date for Anderson's interview, October 6, and informed Jones, "The Commission                                                                                                                                                                                                                                                                                           

will not allow anyone else to be present during my interview of Ms. Anderson except for                                                                                                                                                                                                                                                                                                                                       

her attorney, if she retains counsel."                                                                                                                                               

                                                                  Jones   and   the   Attorney   General's   Office   both   wrote   the   Commission,  

challenging its authority to exclude Jones from Anderson's interview.                                                                                                                                                                                                                                                                                                   In a letter to                                           

Jones, theCommission'sattorney,Stephen Koteff, wrotethat                                                                                                                                                                                                                                                theCommission                                                                    did indeed  



                                                                  Following  the  parties'  practice,  we  use  a  pseudonym  only  for  "Greta  


Jones," a representative of the respondent (see AS 18.80.115).  

                                                                                                                                                                                                                -5-                                                                                                                                                                                                                        7280  

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

have the authority to "set reasonable conditions on its interviews of witnesses" and that                                                                                                                                                             

witnesses "are not entitled to representation . . . absent some affirmative right conferred                                                                                                                                         

by law."                   Watts faxed a letter to Anderson the same day, informing her that Jones could                                                                                                                                        

not be present at the interview and that the Commission might "seek enforcement of the                                                                                                                                                                  

subpoena in court" if Anderson "refuse[d] to answer or participate in the interview under                                                                                                                                                       

these circumstances."                                             

                                        3.                  The interview   

                                        On October 6 Jones and Anderson called Watts to initiate the telephone                                                                                                                     


interview.    Jones recorded the call.                                                                                                                                                                               

                                                                                                                    Watts told Anderson that "[t]he Commission's  


statutes require that the Commission's investigations be conducted confidentially. That  


means third parties may not be present during witness interviews, third parties such as  


Ms. [Jones]."   Watts then asked whether Anderson was ready to "proceed with the  


interview"  without  Jones's  presence.                                                                                  Anderson  replied  that  she  would  like  Jones  


present.  Watts asked again.  Jones interjected that Anderson "is very willing to answer  


any questions and I'mjust here to support her," and Anderson said she felt the same way.  


Watts asked a third time whether Anderson was willing to be interviewed alone, and  


Anderson replied, "No."   Watts informed Anderson that she risked being found in  


contempt, and Anderson said she understood.  When asked once more if she would be  


willingtobe interviewed without Jones present, Anderson said she "would likesupport."  


Watts reiterated that Anderson faced a contempt proceeding and offered her a last chance  


to answer questions without Jones present. Anderson said, "I don't know how to answer  


that because I am willing to answer the questions."  But she confirmed once more that  


she would answer questions only with Jones present, and Watts ended the interview.  

                    14                  Jones told Anderson she decided to record the call "only so that if we had                                                                                                                                    

to [we could] show that you really did show up and you're prepared to of course answer                                                                                                                                                      

any questions."                                 

                                                                                                                            -6-                                                                                                                   7280

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

                                         After the call ended - as Watts described it in a contemporaneous email                                                                             

-  Anderson informed Watts that she would be willing to be interviewed alone after all                                                                                                                                                                               

but soon changed her mind, admitting that she had "gone back and forth on having                                                                                                                                                                      

 [Jones] there with me when we talk" but that ultimately "I find I do want her there with                                                                                                                                                                      

me."   Watts reiterated the Commission's position and asked Anderson to call her if she                                                                                                                                                                           

changed her mind again.                                                        

                     B.                   Proceedings  

                                          The Commission filed a petition for a show cause hearing in the superior                                                                                                                                 

court.  Based on the petition and the accompanying affidavit of investigations director                                                                                                        

Gay, the superior court issued an order to show cause.                                                                                                                       Anderson, represented by the   

Attorney General's Office, filed a motion to vacate the order to show cause and dismiss                                                                                                                                                              

                                                                                  15   The court held a hearing on June 14, 2016, and, following  

the contempt proceedings.                                                                                                                                                                                                                     

oral argument, granted Anderson's motion.  The superior court issued what it described  


as a "very narrow" ruling that the Commission did "not [meet] its burden of proof that  


it ha[d] the authority to require Ms. Anderson to appear for an interview alone in this  


particular case."  In support of its ruling the court noted the lack of a written regulation,  


inconsistencies in how the Commission explained its policy to Anderson,16   and the  


absence of any limiting language in the subpoena itself.  


                                          The Commission filed this appeal.  


                     15                   Some intervening but ultimately irrelevant procedural steps are omitted                                                                                                                                   

from this description.                                               

                     16                   The court noted the difference between Watts's September 18 letter, which  


stated that witnesses could be accompanied by their attorneys, and Koteff's October 1  


letter, which stated that witnesses "are not entitled to representation, whether by counsel  


or otherwise, absent some affirmative right conferred by law."  


                                                                                                                                  -7-                                                                                                                        7280

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

III.         STANDARD OF REVIEW                 

                         "[A] superior court's decision not to hold a party in contempt is committed                                           


to the court's discretion and is one to which we will accord considerable deference."                                                                               


However, we review questions of law de novo and apply our independent judgment to  



"adopt the rule of law that is most persuasive in light of precedent, reason, and policy." 


When we review an agency's statutory interpretation in an area beyond its expertise, we  


use the substitution of judgment standard, applying our independent judgment while  


"giv[ing] due deliberative weight 'to what the agency has done, especially where the  



agency interpretation is longstanding.' " 

                         "Whether an agency action is a 'regulation' requiring rulemaking under the  


Alaska Administrative Procedure Act is a question of law that does not involve agency  



expertise," and we review such determinations using our independent judgment.                                                                               


IV.          DISCUSSION  

                         The Commission's position is that it has the authority to exclude third  


parties from its investigative interviews and  that it has  exercised  this authority  for  


decades pursuant to an unwritten policy.  Anderson counters that an unwritten policy is  


insufficient and that the Commission's policy has no support in statute or regulation. She  


also argues that the superior court did not abuse its discretion by vacating the contempt  


             17          Stuart v. Whaler's Cove, Inc.                          , 144 P.3d 467, 469 (Alaska 2006).                    

             18          Bernard v. Alaska Airlines, Inc.                            , 367 P.3d 1156, 1159-60 (Alaska 2016)                             


(quoting Healy Lake Vill. v. Mt. McKinley Bank, 322 P.3d 866, 871 (Alaska 2014)).  

             19          Heller v. State, Dep't of Revenue, 314 P.3d 69, 73 (Alaska 2013) (quoting  


Chugach Elec. Ass'n v. Regulatory Comm'n of Alaska, 49 P.3d 246, 250 (Alaska 2002)).  


             20          Alyeska Pipeline Serv. Co. v. State, Dep't of Envtl. Conservation , 145 P.3d  


561, 564 (Alaska 2006) (citing Alaska Ctr. for the Env't v. State, Office of the Governor ,  


80 P.3d 231, 243 (Alaska 2003)).  


                                                                               -8-                                                                       7280

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

order when the face of the subpoena contained no restrictions on third-party attendance                                                                                                                               

and   the   Commission's   explanations   of   its   policy   were   inconsistent.    We   conclude,  

however,   that   the   confidentiality   of   the   Commission's   investigations,   mandated   by  

statute, necessarily entails the authority to conduct confidential interviews. We also hold                                                                                                                                             

that the subpoena was valid and that it was an abuse of discretion to vacate the order to                                                                                                                                                      

show cause and dismiss the contempt proceeding.                                                                                                

                   A.	                TheConfidentiality                                        Of CommissionInvestigations                                                                NecessarilyImplies   

                                      The Authority To Exclude Third Parties From Witness Interviews.                                                                                                         

                                      Administrative agencies are created by statute "and therefore must find                                                                                                           


within the statute the authority for the exercise of any power they claim."                                                                                                                                                  

                                                                                                                                                                                                                The mandate  


of AS 18.80.115 - that investigations be confidential - contains by strong implication  


the  authority  the  Commission  needs  to  limit  third-party  attendance  at  investigative  


interviews. The statute, entitled "Confidential information," provides that "[t]he records  


of          investigation                             and             information                            obtained                       by          the            [C]ommission                                  during                  an  


investigation . . . are confidential and may not be made available by the [C]ommission  



for inspection by the public."                                                             The statute further states that information collected by  


the  Commission  "during  an  investigation  shall  be  available  to  the  complainant  or  


respondent" under two circumstances:  (1) ten days before a hearing or after notice that  


conciliation has failed; or (2) "in accordance with the rules of discovery if an action  

                                                                                                                                23   An implementing regulation states that  


relating to the charge is commenced in court." 

                   21                McDaniel v. Cory                                    , 631 P.2d 82, 88 (Alaska 1981).                                         

                   22                 AS 18.80.115.   

                   23	               Id.  

                                                                                                                      -9-	                                                                                                            7280

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

"[r]ecords of investigation and information obtained during an investigation or inquiry                                                          

are confidential and may not be disclosed except in accordance with AS 18.80.115."                                                                        24  

                        Alaska Statute 18.80.115 was added to Title 18 nearly 20 years after the  


                                               25    The bill proposing the amendment initially contained no  

Commission was created.                                                                                                               


provision  at  all  that  would  give  the  complainant  and  the  respondent  access  to  the  


Commission's investigative records.  A House committee suggested adding the current  


language, providing access under limited circumstances,26   and that amendment was  


adopted.27  TheCommission argues that thisamendmentwould haveservedlittlepurpose  


if the respondent was meant to have contemporaneous access to the investigation by  


monitoring  witness  interviews  as  they  occurred.                                                Whatever  the  purpose  of  the  


amendment, we agree that the current statutory language supports only an intent that the  


process  be  confidential  as  to  the  respondent  as  well  as  to  the  public  at  large;  the  


respondent was given access to investigative materials, but only under the circumstances  


specified in the law.  


                        This construction advances the broad purpose of Title 18, Chapter 80: "the  


elimination and prevention of discrimination[] in many facets of our society."28                                                                    "The  


Commission and its director are charged with broad responsibilities . . . to receive and  


            24          6  AAC  30.905.  

            25          Ch.   125,     1,  SLA   1980.  

            26          AS   18.80.115.  

            27                                                                                                      th  

                        House  Committee  Substitute  for  Senate  Bill  569,  11  Leg.,  2d  Sess.  (1980).  

            28          Hotel, Motel, Rest., Constr. Camp Emps. & Bartenders Union Local 879  

v.  Thomas,  551  P.2d  942,  944  (Alaska   1976).   

                                                                           -10-                                                                     7280

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

investigate complaints of illegal discrimination."29  To that end, the Commission has a                   

"full    panoply    of    administrative    powers,    including    the    authority    to    investigate  



complaints."            In recognizing the importance of the Commission's duty to impartially  


investigate discrimination complaints, we have noted repeatedly that "the legislature  



intended to put as many 'teeth' into [AS 18.80] as possible." 


                     It is reasonable to assume that an investigation that depends on the candor  


and ease of witnesses in informal interviews would suffer if the Commission could not  


exclude third parties from those interviews - particularly employer representatives in  


cases of workplace discrimination. A contrary interpretation could seriously damage the  


mandate  of  confidentiality:                  While  AS  18.80.115  prohibits  the  Commission  from  


disclosing investigative material, it imposes no such prohibitions on private parties who  


have ongoing access to the same material. A witness's candor could be chilled not only  


because her supervisor is sitting in the chair next to her and listening to every word, but  


also  because  the  supervisor  is  free  to  tell  anyone  else  what  the  witness  tells  the  



                     Maryland's highest court discussed this issue when it reversed the denial  


ofaninjunction excluding theemployer frominvestigativeinterviews, observing that the  


employer's presence and demand to have the interviews recorded would "likely have the  

          29        Id.  at 945.   

          30        Id . at 946; see also Dow Chem. Co. v. United States, 476 U.S. 227, 233  


(1986)  ("When  Congress  invests  an  agency  with  enforcement  and  investigatory  


authority, it is not necessary to identify explicitly each and every technique that may be  


used in the course of executing the statutory mission."); In re Nowell, 237 S.E.2d 246,  


252 (N.C. 1977) ( "Any administrative agency empowered to investigate complaints and  


allegations of wrongdoing must have a broad discretion if it is to function at all.").  


          31         Toliver v. Alaska State Comm'n for Human Rights, 279 P.3d 619, 624  


(Alaska 2012) (quoting McLean v. State, 583 P.2d 867, 869 (Alaska 1978)).  


                                                                -11-                                                          7280

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

effect of intimidating or influencing witnesses and frustrating the truth-seeking and                                                                                                              


confidential nature of the investigative process."                                                                                                                                                     

                                                                                                                      The court elaborated that "without an  


unimpeded fact-finding process, the Commission wouldbeprecludedfromgathering the  


type of evidence that would normally be necessary to file a . . . complaint, and hence, the  

                                                                                                                                                                            33     We agree.  


enforcement authority of the Commission would be inherently limited." 

Without implying anything negative about the participants' motives in this case, we must  


recognize that, as a general rule, it is reasonable for the Commission to assume that the  


presence of third parties at witness interviews would hamper its ability to elicit full and  


candid statements.  


                                Emphasizing the principle of statutory construction  expressio unius est  


                                         34  Anderson argues that the Commission's investigative powers are  

exclusio alterius,  


limited to what is specifically described in the statute.  She contends that other State  


agencies with subpoena power have been granted specific authority to exclude persons  


                                                                                       35   But Anderson applies the interpretive canon too  

from hearings and other proceedings.                                                                                                                                                                 


                32             Md. Comm'n on Human Relations v. Talbot Cty. Det. Ctr.                                                                                  , 803 A.2d 527,            

543 (Md. 2002);                         see also Nassau Health Care Corp. v. N.Y. State Ethics Comm'n                                                                                          ,   764  

N.Y.S.2d 795, 800 (N.Y. Sup. Ct. 2003) ("[T]he court is compelled to conclude that the                                                                                                               

Commission'sdetermination to excludecorporatecounselfrominterviewsofemployees,                                                                                                    

due to the alleged 'chilling effect' that the presence of corporate counsel would have on                                                                                                             

the Commission's investigation, must be upheld as rational.").                                                                                       

                33              Talbot, 803 A.2d at 543.  


                34              "The  maxim  establishes  the  inference  that,  where  certain  things  are  


designated in a statute, 'all omissions should be understood as exclusions.'  The maxim  


is one of longstanding application, and it is essentially an application of common sense  


and logic."  Croft v. Pan Alaska Trucking, Inc., 820 P.2d 1064, 1066 (Alaska 1991)  


(quoting Puller v. Municipality of Anchorage, 574 P.2d 1285, 1287 (Alaska 1978)).  


                35             See AS 16.43.110(d) (granting subpoena power to Alaska Commercial  



                                                                                                 -12-                                                                                           7280

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

broadly. When the canon is used to contrast two sets of legislative language, it is usually                                                   

in the context of two sections of the same statute or closely related statutes, not two                                                            

                                                                    36  The canon also becomes "less persuasive when  

completely separate statutory schemes.                                                                                                           

                                                                            37  The Commission's duties and procedures,  

applied to two acts passed far apart in time."                                                                                        


as described in Title 18, Chapter 80, are simply not closely enough related to the statutes  


governing other executive agencies that we would expect the legislature to have intended  


them to track each other for interpretive purposes.38                                            Besides, "the maxim should be  


            35          (...continued)  


Fisheries Entry Commission); AS 25.27.085 (granting subpoena power to Child Support  


Services Agency); AS 42.40.810 (granting subpoena power to Railroad Labor Relations  


            36          See Russello v. United States, 464 U.S. 16, 23 (1983) ("[W]here Congress  


includes particular language in one section of a statute but omits it in another section of  


the same Act, it is generally presumed that Congress acts intentionally and purposely in  


the disparate inclusion or exclusion." (alteration in original) (emphasis added) (quoting  


 United States v. Wong Kim Bo, 472 F.2d 720, 722 (5th Cir. 1972))); Emory v. United  


States, 19 Ct. Cl. 254, 269 (Ct. Cl. 1884) ("The different phraseology of different statutes  


does  not  give  occasion  for  the  application  of  the  maxim  expressio  unius  exclusio  


alterius. . . ."); Nakahara v. NS 1991 Am. Tr., 739 A.2d 770, 781 (Del. Ch. 1998)  


(refusing  to  apply  canon  where  it  "would  require  drawing  this  inference  from the  


language of  two different statutes, rather than from different provisions of the same  


statute" (emphasis in original)).  


            37         Arabian Motors Grp. W.L.L. v. Ford Motor Co. , 228 F. Supp. 3d 797, 806- 


07 (E.D. Mich. 2017); see also Moreno Rios v. United States, 256 F.2d 68, 71 (1st Cir.  


 1958) (observing that canon "as an aid . . . is pretty weak when applied to acts of  


Congress enacted at widely separated times").  


            38          Barnhart v. Peabody Coal Co., 537 U.S. 149, 168 (2003) ([T]he canon . . .  


"does not apply to every statutory listing or grouping; it has force only when the items  


expressed are members of an 'associated group or series,' justifying the inference that  


items not mentioned were excluded by deliberate choice, not inadvertence."); Chevron  


 U.S.A. Inc. v. Echazabal, 536 U.S. 73, 81 (2002) ("The canon depends on identifying a  



                                                                         -13-                                                                    7280

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


cautiously   applied."                         And   where "the legislative purpose can                                           be ascertained                with  

reasonable certainty" - as we believe to be the case here - "the maxims of statutory   

construction [such as                     expressio unius est exclusio alterius                                ] are secondary to the rule that                    

a statute should be construed in light of its purpose."                                                40  

                          Relatedly,Anderson points out that thelegislaturehas expressly authorized  


other agencies to hold private interviews; it could have done so in Title 18, Chapter 80  


but  did  not.               But  the  agencies  Anderson  lists  are  distinguishable.                                                     Alaska  Statute  


42.06.450 provides the Regulatory Commission of Alaska with the authority to "exclude  


from attendance at the taking of investigative testimony all persons except the person  


compelled to attend."   But the statute creating the Regulatory Commission does not  


require that its investigations be confidential; in fact, the Regulatory Commission must  


                                                                                                                                                             41    An  

make records in its possession "open to public inspection at reasonable times."                                                                                    


agency that must make its records public may need a specific exception to hold private  


investigative interviews; an agency charged with keeping its records confidential does  



             38           (...continued)  


series of two or more terms or things that should be understood to go hand in hand [such  


that the omission of one] support[s] a sensible inference that the term left out must have  


been meant to be excluded.").  

             39           Chevron U.S.A. Inc. v. LeResche, 663 P.2d 923, 931 (Alaska 1983) (citing  


               ANDS, S         UTHERLAND  STATUTORY  CONSTRUCTION    47.25 (4th ed. 1973)).                                                                     

2A C. S 

             40           Beck  v.  State,  Dep't  of  Transp.  & Pub.  Facilities,  837  P.2d  105,  117  


(Alaska 1992).   

             41           AS 42.06.445(a).  


                                                                                 -14-                                                                           7280

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

                                   Anderson also relies on the fact that both the Office of Victims' Rights and                                                                                                              


the Office of the Ombudsman may conduct confidential investigations                                                                                                                                                        

                                                                                                                                                                                                  but have also  

                                                                                                                                                                                         43      But a witness  



been granted specific statutory authority to "hold private hearings." 

interview during the course of an informal investigation is not a "hearing." At a hearing  


"there are parties, and issues of law and of fact to be tried, and at the conclusion of the  


hearing,  action  is  taken  which  may  materially  affect  the  rights  of  the  parties."44  


Investigations, on the other hand, "have no parties and are usually held in private."45  


"An 'investigation' is nonadversary and contemplates a procedure much less formal and  


more flexible than applies even to an administrative hearing."46   Whether an agency has  


explicit authority to "hold private hearings" says nothing about the tools it is allowed to  


use in its investigations.  


                  42               AS 24.55.160(b) ("The ombudsman shall maintain confidentiality with                                                                          

respect to all matters and the identities of the complainants or witnesses coming before                                                                                                                             

theombudsmanexceptinsofar                                                       as disclosures may benecessarytoenabletheombudsman                                                                    

to carry out duties and to support recommendations."); AS 24.65.120(c) ("The victims'                                                                                                                            

advocate shall maintain confidentiality with respect to all matters and the identities of the                                                                                                                                  

complainants   or   witnesses   coming   before   the   victims'   advocate   except   insofar   as  

disclosures may be necessary to enable the victims' advocate to carry out duties and to                                                                                                                                          

support recommendations.").   

                  43               AS 24.55.160(a)(3) ("In an investigation, the ombudsman may . . . hold  


private hearings."); AS 24.65.120(b)(2) ("In an investigation, the victims' advocate may  


 . . . hold private hearings.").  


                  44               Bowles v. Baer, 142 F.2d 787, 789 (7th Cir. 1944).  


                  45               Id.  

                  46               Atchison, Topeka & Santa Fe Ry. Co. v. Kan. Comm'n on Civil Rights, 529  


P.2d 666, 673 (Kan. 1974); see also Barngrover v. Med. Licensure Comm'n of Ala. , 852  


So. 2d 147, 152-53 (Ala. Civ. App. 2002) (quoting Atchison , 529 P.2d at 673).  


                                                                                                              -15-                                                                                                       7280

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

                            Anderson alsocontends that theCommission'spolicyoflimiting third party                                                                       

attendance at investigative interviews is unlawful unless it is embodied in a regulation.                                                                                            

Rulemaking under the Administrative Procedure Act (APA) is required for an agency's                                                                              

"expansive   or   unforeseeable"   interpretations   of   a   statute   but   not   for   "obvious,  

commonsense interpretations," because requiring commonsense interpretations to go                                                                                             

through   the   APA's   formal   notice   and   comment   process   "would   result   in   complete  

                                                                           47    "An agency action may not be a commonsense  

ossification of the regulatory state."                                                                                                               

interpretation  of existing  law when  it adds 'requirements of substance'  rather  than  


serving as an 'interpretation of the [statute] according to its own terms.' "48  


                            We conclude that the Commission's longstandingpolicy of excluding third  


parties frominformal witnessinterviews isacommonsenseinterpretation of the statutory  


requirement  that  it  maintain  the  confidentiality  of  its  investigative  "records  and  


information."49                   While the Commission may be well advised to formalize some of its  


investigative practices through the rulemaking process, it was not required to do so for  



the policy at issue here.                               


              47           Alyeska Pipeline Serv. Co. v. State, Dep't of Envtl. Conservation                                                                   , 145 P.3d     

561, 573 (Alaska 2006).               

              48            Chevron U.S.A., Inc. v. State, Dep't of Revenue, 387 P.3d 25, 37 (Alaska  


2016) (alteration in original) (quoting Alyeska Pipeline Serv. Co. , 145 P.3d at 573)).  


              49            AS 18.80.115.  


              50            The dissent points out that no statute or regulation "mandates" that the  


interview be closed to third parties. But AS 18.80.115 requires confidentiality while  


mandating no particular means for assuring it.  When analyzing a regulation, we ask  


whether it "is consistent with and reasonably necessary to carry out the purposes of the  


statutory provisions" and is "not arbitrary."  Warner v. State, 819 P.2d 28, 31 (Alaska  


 1991).              Our   holding  today  -  that  the  Commission's  longstanding  policy  is  


commonsense and does not need to be promulgated as a regulation - necessarily means  



                                                                                     -16-                                                                                7280

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

                        B.	                      It Was An Abuse Of Discretion To Vacate The Show Cause Order And  

                                                Dismiss The Contempt Proceedings.                                                          

                                                Anderson   argues   that   even   setting   aside   the   question   whether   the  

Commission had the authority to exclude third parties from her interview, the superior                                                                                                                                                                                                      

court did not abuse its discretion when it vacated the show cause order and dismissed                                                                                                                                                                                                                                         

the contempt proceeding because Anderson had complied with the plain terms of the                                                                                                                                                                                                                              

subpoena, which said nothing about limitations on attendance.                                                                                                                                                                               It is undisputed that                                           

Anderson appeared telephonically at the agreed timeand                                                                                                                                                    was prepared to answer Watts's   

questions, though only on her own conditions:                                                                                                                                that Jones be allowed to be there too.                                                                                                           

                                                Alaska Statute 44.62.590 allows an agency to bring a motion for an order                                                                                                                                                                               

to   show cause if it certifies to the superior court that an individual involved in an                                                                                                                                                                                                                         

investigation "(1) disobeys or resists a lawful order; (2) refuses to respond to a subpoena;                                                                                                                                                                                      

(3)  refuses to take oath or affirmation as a witness; (4) refuses to be examined; or (5) is                                                                                                                                                                                                                        

guilty of misconduct at a hearing or so near the hearing as to obstruct the proceeding."                                                                                                                                                                                                                                      

Here, the Commission asked that Anderson be held in contempt for "refusing to obey a                                                                                                                                                                                                                                   

                                                                                                                                                                                                51  it was required to apply the law  

subpoena."   Once the superior court had jurisdiction,                                                                                                                                                                                                                                                       

of civil contempt.52   A party may not be found in civil contempt unless the order at issue  


                        50                       (...continued)  


that we find the policy consistent with and reasonably necessary to carry out the statute,  


as well as not arbitrary.  Our inquiry ends there.  

                        51                      A superior court has jurisdiction over an administrative subpoena once it  


issues an order directing the person to appear and show cause.  AS 44.62.590(c).  


                        52                      AS 44.62.590(d).  


                                                                                                                                                      -17-	                                                                                                                                              7280

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

was "sufficiently clear" that the responding party should have known what was required                                                                                                                                

in order to comply.                                  53  

                                     The superior court appears to have found that Anderson complied with the  


subpoena because the subpoena required only that she appear for her interview - which  


she did - while placing no limits on third party attendance.  But the subpoena, like  


most, did not require only that Anderson appear; it required her to "appear . . . to provide  


testimony." (Emphasis added.) A witness cannot satisfy a subpoena by simply showing  


up and then declining to testify except on conditions she knows are unacceptable to the  


subpoenaing authority.54  


                                    Furthermore, contrary to Anderson's argument, a valid subpoena need not  


include every detail inherent in the type of proceeding.55                                                                                                         A subpoena to testify at a  


confidential hearing is not invalid because it fails to note that persons other than the  


                  53                See Johnson v. Johnson                                           , 239 P.3d 393, 406 (Alaska 2010) (holding it was                                                                          

abuse of discretion not to hold contempt hearing because order at issue "was sufficiently                                                                                                                     

clear that neither the issuing court nor the parties could have read it to permit [appellee]                                                                                                                     

to avoid responding");                                        Anchorage Police &Fire                                                Ret. Sys. v. Gallion                                ,   65 P.3d 876, 882-                   

83 (Alaska 2003) (rejecting argument by defendant in civil contempt that underlying                                                                                                                           

order was unclear because language of order was clear, no one had argued ambiguity at                                                                                                                                                   

trial court level, and evidence suggested purposeful noncompliance).                                                                                                                          

                  54                See AS44.62.590(a)(4)(identifying "refus[al]to beexamined"as onebasis  


for contempt proceeding); AS 09.50.010(10) (defining "contempts oftheauthority of the  


court" to include "disobedience of a subpoena duly served, or refusing to be sworn or  


answer  as  a  witness");  United  States  v.  Wilson,  421  U.S.  309,  314-15  (1975)  


("Respondents' refusals to answer, although not delivered disrespectfully, plainly . . .  


constitute contemptuous conduct.").  


                  55                 Cf.  Alaska  R.  Civ.  P.  45(a)  ("Every  subpoena  shall  be  issued  by  the  


clerk . . . , shall state the name of the court and title of the action, and shall command  


each person to whom it is directed to attend and give testimony or to produce documents  


at a time and place therein specified.").  


                                                                                                                 -18-                                                                                                          7280

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

witness may be barred from entering the hearing room; a subpoena to testify at trial is   

not invalid because it fails to note that the witness might be questioned alone in camera.                                                                                                                                                                     

While   Anderson's   expressed   desire   for  supportive   company   at   the   interview   is  

understandable, it was not reasonable for her to expect that the Commission would                                                                                                                                                        

accommodate her desire unless it said otherwise on the face of the subpoena.  Implicit   

in subpoenaed testimony is the witness's loss of some control over the circumstances of                                                                                                                                                               

time, place, and manner.                                                  And the record is clear in this case that Jones and Anderson                                                                            

were repeatedly made aware of the Commission's policy of excluding third parties from                                                                                                                                                         


interviews, even before the subpoena was issued.                                                                                                      

                                       Anderson also relies, however, on the superior court's finding that the  


Commission's communications about its policy were "clearly inconsistent,"57  arguing  


that she cannot be faulted for failing to comply with an unclear directive.   Watts's  


September 18 letter to Jones said that no third parties could attend Anderson's interview  


"except for her attorney, if she retains counsel."  The alleged inconsistency appears in  


Koteff's  October  1  letter,  in  which  he  informs  Jones  that  "[w]itnesses  in  such  


investigations are not entitled to representation, whether by counsel or otherwise, absent  


some affirmative right conferred by law." But whether Anderson could have an attorney  


                    56                 After the initial contact, most of the Commission's communications on the                                                                                                                                   

subject were made to Jones.                                                            Anderson had referred Watts to Jones initially.                                                                                                   Jones  

purported to speak for Anderson thereafter, and Anderson does not appear to contend                                                                                                                                                 

that she was not personally aware of the Commission's position as it was communicated                                                                                                                            

to Jones.                   

                    57                 Anderson also finds an inconsistency stemming from a telephone call in  


which Watts said that the Commission had to review whether Jones could be present in  


the interview and additional instances where Anderson was told she was not entitled to  


a representative. This argument is unpersuasive; it was not inconsistent for Watts to take  


time to consider Jones's request to sit in on the meeting and then get back to her with a  


response that Jones could not be present.  


                                                                                                                        -19-                                                                                                                 7280

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


present was immaterial to her compliance; she never indicated any desire to have one.  


The only issue between the parties was whether she could bring Jones, who according  


to Anderson herself was not her representative.  


                        Because the Commission had the authority to exclude third parties from its  


investigative interviews; because it was not necessary that the subpoena explicitly assert  


this  specific  aspect  of  its  authority  in  order  to  be  valid;  and  because  the  alleged  


inconsistency  in  the  Commission's  explanation  of  the  policy  was  immaterial  to  


Anderson's failure to comply, we hold that it was an abuse of discretion to conclude that  


Anderson complied with the subpoena.  

V.          CONCLUSION  

                        We REVERSE the order vacating the show cause order and dismissing the                                                          

Commission's   petition   and   REMAND   for  further   proceedings   consistent   with   this  


                                                                          -20-                                                                     7280

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

CARNEY, Justice, dissenting.                                                     

                                   Because I would affirm the superior court's order dismissing the contempt                                                                                             

proceeding   against   Anderson,   I   respectfully   dissent.     Although   I   share   the   court's  

recognition of the important role that the Commission plays in enforcing Alaska's anti-                                                                                                                              

discrimination laws, I cannot agree that a longstanding, unwritten, inconsistently applied                                                                                                                    

policy authorizes theCommission toprevent interviewsubjects                                                                                                      frombeingaccompanied          

by another person at the interview.                                                        Nor can I agree that Anderson failed to comply with                                                                       

a subpoena that "commanded [her] to appear . . . to provide testimony" because she                                                                                                                                     

appeared with a "support" person.                                                        1  

                                   As  the  court  explains,  the  statutes  and  regulations  that  govern  the  


Commission's investigations  require that it keep  confidential the "records .  .  .  and  


                                                                                                                               2     The court therefore concludes that  

information" that it obtains in its investigations.                                                                                                                                                                   


there  is  a  "strong  implication"  that  interviews  must  be  confidential  and  that  the  


Commission has the authority to ban the attendance of third parties.  But neither statute  


nor regulation mandates that each interview involve only the Commission's investigator  


and the interview subject.3                                                Nor is there any written authority for the Commission's  


                  1                I   share   the   court's   concern   that   the   candor   and   ease   of   witnesses   in  

interviews would suffer if employer representatives were allowed to attend in cases of   

workplace discrimination.                                            But Anderson consistently asserted that she wanted Jones to                                                                                            

be present because she wanted Jones's support.                                                                               

                 2                 AS 18.80.115;  6 Alaska Administrative Code (AAC) 30.905 (2014).  


                 3                 See AS 18.80.115 ("The records of investigation and information obtained  


by the commission during an investigation under AS 18.80.110 are confidential and may  


not be made available by the commission for inspection by the public."); 6 AAC 30.905  


("Records of investigation and information obtained during an investigation or inquiry  


are confidential and may not be disclosed except in accordance with AS 18.80.115.  


Records and information required to be kept confidential by law must be withheld from  



                                                                                                           -21-                                                                                                    7280

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

allowing "certain limited exceptions" to this policy:                                                     in addition to attendance by the                           

attorney   for   an   interview   subject,   third   parties   can   be   present  if   the   subject   of   the  

interview   is   also   the   respondent  in  the   complaint   under   investigation,   or   if   the  

interviewee is a member of the respondent's "control group" or has, in the opinion of the                                                                             

                                                                                                         4    The Commission also did not  

Commission, sufficient "managerial responsibility."                                                                                                                  

provide  any  specific  support  for  its  ability  to  ban  third  parties  before  Anderson's  


interview, stating without further elaboration that it had "ample legal authority" to do so.  


                           The requirement that the Commission maintain confidentiality does not in  


itself require that it ban third parties from interviews.   Other State entities must also  


maintain confidentiality; theOffice of Children's Services (OCS), for example, conducts  


confidential investigations and gathers and maintains confidential information.5                                                                                 OCS  


does  not,  however,  conduct  all  of  its  interviews  -  or  even  the  resulting  court  


proceedings - without the presence of third parties.6                                                              Rather, parties who receive  


             3             (...continued)  


             4             The Commission will also allow an interpreter or a legal guardian to be                                                                     

present if appropriate.                       

             5             7 AAC 54.020-.030; see AS 47.10.093; AS 47.10.070 (confidentiality of  


CINA information at hearings).  


             6            See  AS  47.10.070;  ALASKA   OFFICE   OF   CHILDREN 'S   SERVICES, C                                                                   HILD  


P R O T E C T I V E                          S E R V I C E S                      M A N U A L                               2 . 2 . 5              ( 2 0 1 6 ) ,  


(providing under certain circumstances OCS will coordinate with tribal representatives,  


law enforcement officers, and school officials to attend interviews).  

                                                                                  -22-                                                                           7280

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

confidential information from OCS are instructed (and in the case of court proceedings,                                                                                                                                                 

ordered) to maintain the information's confidentiality.                                                                                                                   7  

                                          I also am not persuaded that Anderson failed to comply with the subpoena  


she received.  She did appear as commanded and was willing to provide testimony, as  


long as her support person was allowed to be present.  


                                          Because no statute or regulation establishes that the Commission has the  


authority to ban third parties from its interviews, and because the subpoena did not  


inform Anderson that she was not permitted to bring a support person to her interview,  


I would affirm the superior court in this case.  


                     7                    See  AS 47.10.070 (f) ("[A] person attending a hearing open to the public                                                                                                                                         

may not disclose a name, picture, or other information that would readily lead to the                                                                                                                                                                                

identification of a child who is the subject of the child-in-need-of-aid case."); CINA Rule                                                                                                                                                                      

22; 7 AAC 54.040(f) ("A person with sufficient legitimate interest who receives child                                                                                                                                                                          

protection information from the department shall safeguard the information.").                                                                                                                          

                                                                                                                                  -23-                                                                                                                          7280

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