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Case v. Municipality of Anchorage (1/27/2006) ap-2028

Case v. Municipality of Anchorage (1/27/2006) ap-2028

     The  text  of this opinion can be corrected before  the
     opinion  is published in the Pacific Reporter.  Readers
     are  encouraged to bring typographical or other  formal
     errors  to  the attention of the Clerk of the Appellate

             303 K Street, Anchorage, Alaska  99501
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) Court of Appeals No. A-9082
Appellant, ) Trial Court No. 3AN-04-A1344721 MO
v. )
) O P I N I O N
Appellee. ) [No. 2028 January 27, 2006]
          Appeal  from the District Court,  Third  Judi
          cial  District, Anchorage, Jennifer K. Wells,

          Appearances:   David S. Case, Landye  Bennett
          Blumstein,  LLP,  for the Appellant.   Rachel
          Plumlee, Assistant Municipal Prosecutor,  and
          Frederick   H.  Boness,  Municipal  Attorney,
          Anchorage, for the Appellee.

          Before:   Coats, Chief Judge, and  Mannheimer
          and Stewart, Judges.

          MANNHEIMER, Judge.

          Andrew  B.  Case  was  ticketed for  speeding,  and  he
demanded  a trial on this charge.  Case asserts that he  received
permission   from  the  district  court  to  attend   the   trial
telephonically, since he was about to leave Alaska  to  study  in
          Cases  trial  was set for the afternoon of October  13,
2004.   But  Case failed to telephone the district court  at  the
appointed  time.  After waiting for approximately forty  minutes,
Magistrate  Jennifer  K. Wells proceeded  with  the  trial.   The
officer  who gave Case the speeding citation testified that  Case
had  indeed committed this offense.  Based on this testimony, and
based  on  Cases  failure to appear, Magistrate Wells  entered  a
default judgement against Case pursuant to Alaska District  Court
Criminal Rule 8(d)(6).1
          Some  ten weeks later, Case filed the first of a series
of  pleadings in which he asked the district court to  set  aside
this  default judgement under District Court Criminal Rule  8(i),
and to reschedule his trial.
          Although Magistrate Wells initially indicated that  she
believed  Case  had  not  acted with  due  diligence,  she  later
conceded  that Case might have been confused concerning the  hour
when he was supposed to call the court, given the time difference
between  Alaska  and  Spain.   However,  Magistrate  Wells  noted
another deficiency in Cases pleadings.
          Under  the  Alaska  appellate cases  construing  Alaska
Civil  Rule  60(b) (the civil rule counterpart to District  Court
Criminal  Rule  8(i)),  a party seeking  relief  from  a  default
judgement must assert that they have a meritorious defense to the
opposing partys claim(s).  In other words, a party seeking relief
from  a  default judgement must show the court that there is,  in
fact, something to be litigated.2
          As  Magistrate  Wells pointed out, Case never  asserted
that  he had a meritorious defense to the speeding citation.   In
fact,  Case  expressly  contended that he had  no  obligation  to
assert  a  defense.   Case argued that a traffic  citation  is  a
criminal  matter,  and  that requiring a defendant  to  show  [a]
defense would impermissibly require that the defendant waive  his
right to remain silent in order to obtain a [trial].
          Magistrate   Wells  rejected  this  contention.    And,
because  Case failed to assert a defense to the speeding  charge,
the  magistrate  denied  his motion  to  set  aside  the  default
judgement.  Case then filed this appeal.
          Case  renews  his contention that, to the  extent  that
Alaska  law  requires him to plead a meritorious defense  to  the
speeding charge in order to get the default judgement set  aside,
Alaska  law violates his Fifth Amendment right to remain  silent.
However, Case fails to cite any relevant case law to support this
          Cases  Fifth  Amendment argument might be  stronger  if
Alaska  law  required  the moving party to  prove  a  meritorious
defense  as a pre-condition to setting aside a default judgement.
But  the  burden  on the moving party is simply to  convince  the
court  that there is something to litigate if the matter went  to
          The  Alaska Supreme Court most recently addressed  this
point in Cook v. Rowland, 49 P.3d 262 (Alaska 2002).  Here is how
the  supreme court described the rule that a party seeking to set
aside a default judgement must demonstrate a meritorious defense:
               It  is  not necessary that the defendant
          show that, if [the default is set aside], the
          ultimate outcome [of the litigation] will  be
          different[.    But]   the   defendant    must
          demonstrate   that  the  outcome   might   be
               different if a trial were held.

     Showing  a  meritorious defense  demands
more  than  a  perfunctory statement  that  a
meritorious  defense exists.  The  defaulting
party may be required to show that there is a
factual  or  legal  basis  for  the  tendered
defense.    [The  appellant  in  this   case]
contends  that  this requirement  only  means
that  a  defendant  must say  more  than  the
conclusory statement I have a defense.    But
the  exact standard is not so easily defined,
because  the  amount of proof  required  will
change  based  on the persuasiveness  of  the
other   equitable  factors  considered  under
[Civil]  Rule  55(e)s  requirement  of   good

     [On   the  other  hand,  we  reject  the
appellees   argument]  that   a   meritorious
defense  [always] requires both  a  claim  of
defense    and   a   factual   representation
supporting that claim.  ...  [I]n several ...
cases  we  have not required evidence[,]  but
have  found a meritorious defense when  facts
supporting  a  claim  of defense  are  merely
alleged.  Again, the existence and quality of
evidence  establishing a meritorious  defense
is  a  factor  to  be weighed in  determining
whether  good cause exists to set  aside  the
default judgment.

Cook  v. Rowland, 49 P.3d at 265-66 (emphasis
added)  (footnotes  and  internal  quotations
          In  other words, the rule does  not
require  the presentation of an extensive  or
full-blown  defense.  In some  instances  (as
noted  in  Cook  v. Rowland), the  defendants
burden  can be satisfied by simply presenting
an  arguable  theory of defense   allegations
which,  if  ultimately supported by  credible
evidence,  would  defeat the opposing  partys
          Case    argues   that   the   Fifth
Amendment protects a criminal defendant  from
disclosing  even  this much about  his  case.
But,  as  we noted above, Case has failed  to
provide us with any authority to support this
assertion.   And  our own  research  has  not
revealed any cases on point.
          Moreover, we note that even  though
Alaskas  privilege against self-incrimination
(Alaska  Constitution, Article I, Section  9)
has  repeatedly been interpreted as providing
broader  protection  than  the  corresponding
federal privilege,3 the Alaska Supreme  Court
has   nevertheless  held  that  requiring   a
criminal defendant to give advance notice  of
their  intention to raise a defense of  alibi
does  not  violate  the defendants  privilege
against self-incrimination.  Scott v.  State,
519 P.2d 774, 786-87 (Alaska 1974).
          We   do   not  suggest  that  Cases
constitutional   argument    is    frivolous.
However,  because  we must presume  that  the
meritorious     defense    requirement     is
constitutional,   it  is  Cases   burden   to
affirmatively    demonstrate    that     this
requirement  violates  his  Fifth   Amendment
          It   is   sufficient,  for  present
purposes, to note that (1) Case has failed to
cite  any  authority  to  support  his  Fifth
Amendment assertion, (2) our own research has
revealed  no  case law that prohibits  courts
from    enforcing   a   meritorious   defense
requirement against criminal defendants,  and
(3)  even under Alaska constitutional law  as
expounded  in Scott, the meritorious  defense
requirement  appears  not  to  infringe   the
privilege   against  self-incrimination,   at
least  to  the  extent that  the  meritorious
defense  rule  merely requires defendants  to
give  advance notice of their general  theory
of defense.
          Given   these   circumstances,   we
conclude  that  we need not  and  should  not
definitively  resolve  the  Fifth   Amendment
issue raised by Case in this appeal.  Rather,
as we said in Nason v. State, it is better to
leave   [this]   important   [constitutional]
issue[] undecided.4  We therefore simply hold
that,  with  regard to Cases Fifth  Amendment
challenge   to   the   meritorious    defense
requirement,  Case has failed  to  rebut  the
presumption   that   this   requirement    is
          We  accordingly AFFIRM the district
courts ruling that Case is obliged to plead a
meritorious  defense as one  element  of  his
motion to set aside the default judgement.
          Now  that we have clarified the law
that  governs Cases motion to set  aside  the
default  judgement,  Case  should  have   the
opportunity  to file an amended  motion  that
includes   the  assertion  of  a  meritorious
defense.   Accordingly, Case  shall  have  30
days  from  the issuance of this  opinion  to
file  an  amended  motion to  set  aside  the
          default judgement.  If, within these 30 days,
Case   files  an  amended  motion  (one  that
includes   an   assertion  of  a  meritorious
defense), the district court shall reconsider
the question of whether the default judgement
against Case should be set aside.  If, on the
other  hand,  Case  files no  amended  motion
within  the  30  days, the default  judgement
shall stand.
          We  do  not retain jurisdiction  of
this case.
          We   do,  however,  add  one  final
comment  a suggestion for a revision  of  the
court system form that is currently given  or
mailed to people who indicate that they  want
to  ask  the  court to set aside an  already-
entered  default  judgement.   This  form  is
entitled  Request  and  Order  to  Set  Aside
Judgment,   and   it  currently   bears   the
identifying   number  TR-420   Anch   (11/98)
          This  form states (correctly)  that
District Court Criminal Rule 8(i) sets a one-
year  time  limit on motions to set  aside  a
default  judgement.  The form then  asks  the
person  to  explain why the default judgement
should  be  set  aside, and it provides  four
empty lines for this explanation.
          The  problem is that the form  does
not  provide  any information concerning  the
law that governs requests for setting aside a
default judgement.
          As we noted in Zok v. Anchorage, 41
P.3d  154 (Alaska App. 2001), a litigant  who
seeks  to have a default judgement set  aside
must  pursue  one  of two paths.  Either  the
litigant must allege that their right to  due
process   was   violated   in   the   earlier
proceeding  (i.e., they did not receive  fair
notice  of  the proceeding, or they  did  not
have a fair opportunity to respond before the
default  was entered), or alternatively,  the
litigant  must allege that there  is  a  good
reason to set aside the default judgment  and
that  they  have  a  meritorious  defense  to
present  if the case is re-opened.   Zok,  41
P.3d at 155-56.
          As  Case  correctly noted  when  he
argued  this  appeal to us, the court  system
form  is  completely silent  regarding  these
legal  requirements.  Thus, unless  a  person
has  the means or the good fortune to consult
a  lawyer,  there is a good chance that  they
will fail to address these legal requirements
when  they  give their four-line  handwritten
explanation  of  why  the  default  judgement
should be set aside.
          And,  because the form  allows  the
assigned  judge  to  deny  the  set-aside  by
simply checking a box labeled Request denied,
the person requesting the set-aside may never
know  that  their request was denied  because
they    failed   to   address   these   legal
          We  agree with Case that this  form
should  be changed so that it informs  people
of  what they must prove if they wish to have
a default judgement set aside.

     1This  rule  reads:  The court may ... enter a  judgment  of
conviction  against a person who requests a  trial  [of  a  minor
offense] if the person has been [notified of the] trial date  and
then fails to appear ... .

     2See  Cook  v. Rowland, 49 P.3d 262, 265 (Alaska  2002)  (In
addition  to the specific showing of excusable neglect,  ...  the
rules  governing  setting  aside  a  default  judgment  generally
require  that the movant have a meritorious defense.);  Hertz  v.
Berzanske,  704  P.2d  767,  771 n. 5 (Alaska  1985);  Gregor  v.
Hodges,  612  P.2d  1008,  1009-1010 (Alaska  1980);  Balchen  v.
Balchen,  566  P.2d 1324, 1328 n. 11 (Alaska 1977);  Markland  v.
Fairbanks,  513  P.2d  658,  659-660  (Alaska  1973).   See  also
Disciplinary  Matter Involving Beconovich, 884  P.2d  1080,  1083
(Alaska  1994) ([The] respondent attorney must show a meritorious
defense  and  excusable  neglect  to  warrant  relief  from   the
operation  of  [Alaska] Bar Rule 22(a), which  provides  that  an
attorneys  failure  to answer a grievance within  the  prescribed
time will be deemed an admission.).

3See Beavers v. State, 998 P.2d 1040, 1046 n. 30 (Alaska
2000);  State  v. Gonzales, 853 P.2d 526,  530  (Alaska
1993); Scott v. State, 519 P.2d 774, 785 (Alaska 1974).

4102 P.3d 962, 965 (Alaska App. 2004).

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