|
You can of the Alaska Court of Appeals opinions.
|
|
NOTICE
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
Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| ANDREW B. CASE, | ) |
| ) Court of Appeals No. A-9082 | |
| Appellant, | ) Trial Court No. 3AN-04-A1344721 MO |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| MUNICIPALITY OF ANCHORAGE, | ) |
| ) | |
| Appellee. | ) [No. 2028 January 27, 2006] |
| ) | |
Appeal from the District Court, Third Judi
cial District, Anchorage, Jennifer K. Wells,
Magistrate.
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
Europe.
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
proposition.
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
trial.
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
cause.
[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
omitted).
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
claim.
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
privilege.
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
constitutional.
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)
(st.4).
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
requirements.
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).
 |
| Case Law Statutes, Regs & Rules Constitutions Miscellaneous |
|
