Alaska Supreme Court – Page 3

Alaska SCT Affirms Attorney Fees Saga Involving Alaska Native Corporation

November 10, 2017November 10, 2017Matthew L.M. Fletcher

Here is the opinion in Merdes & Merdes, P.C. v. Leisnoi, Inc.

An excerpt:

An attorney represented a Native corporation in litigation nearly three decades ago. The corporation disputed the attorney’s claim for fees, and in 1995, after the attorney’s death, the superior court entered judgment on an arbitration award of nearly $800,000 to the attorney’s law firm, then represented by the attorney’s son. The corporation paid eight installments on the judgment but eventually stopped paying, citing financial difficulties. The law firm sought a writ of execution for the unpaid balance, and the writ was granted. The corporation appealed but under threat of the writ paid $643,760 while the appeal was pending. In a 2013 opinion we held the writ invalid and required the firm to repay the $643,760.

The corporation was never repaid. The original law firm moved its assets to a new firm and sought a stay of execution, averring that the original firm now lacked the funds necessary for repayment. The corporation sued the original firm, the successor firm, and the son for breach of contract, fraudulent conveyance, conspiracy to fraudulently convey assets, violations of the Unfair Trade Practices Act (UTPA), unjust enrichment, and punitive damages. The firm counterclaimed, seeking recovery in quantum meruit for attorney’s fees it claimed were still owing for its original representation of the corporation.

The superior court granted summary judgment for the corporation on the law firm’s quantum meruit claim and, following trial, found that the son and both law firms fraudulently conveyed assets and were liable for treble damages under the UTPA. The son and the law firms appeal. They argue that the superior court erred in these ways: (1) holding that the quantum meruit claim was barred by res judicata; (2) holding the defendants liable for fraudulent conveyance;(3) awarding damages under the UTPA; and (4) making mistakes in the form of judgment and award of costs. But seeing no error or abuse of discretion in the superior court’s decision of most of these issues, we affirm its judgment, with one exception. We remand for reconsideration of whether all three defendants are liable for prejudgment interest from the same date.

Alaska SCT Issues Opinion Affirming Tribal Sovereign Immunity from Suit

September 8, 2017Matthew L.M. Fletcher

Here is the opinion in Douglas Indian Association v. Central Council of Tlingit & Haida Indian Tribes.

Alaska ICWA Qualified Expert Witness and Active Efforts Case

June 16, 2017Kate Fort

Here.

This case delves deeply into the qualifications of a qualified expert witness under the 2015 BIA Guidelines. Those requirements were pretty specific, and as the court points out, prioritized cultural knowledge of the child’s tribe.

The 2015 Guidelines don’t govern cases initiated AFTER December 12, 2016, and instead the federal regulation (81 Fed. Reg. 38873; 25 CFR pt. 23.122) provides the definition and context of qualified expert witnesses. That definition (“a qualified expert witness must be qualified to testify regarding whether the child’s continued custody by the parent or or Indian custodian is likely to result in serious emotional or physical damage to the child and should be qualified to testify as to the prevailing social and cultural standards of the Indian child’s Tribe”) provides far less guidance to the court as to who can be a QEW. The regulation further states a QEW may be designated by the child’s tribe, and may not be the “social worker regularly assigned to” the child. The 2016 Guidelines now argue that specific professional knowledge might be more important than cultural knowledge. That may have been more helpful to the parent’s argument in this case.

Alaska ICWA Case on QEW and Guardianship

May 2, 2017Kate Fort

Here.

Ultimately the question turned on whether a long term guardianship is a foster care placement or a termination of parental rights (which have differing standards of proof). The court found it was a foster care placement, and required the testimony of a qualified expert witness.

Unpublished Decision from Alaska Declining to Apply 2015 ICWA Guidelines Provision on Expert Witnesses

February 5, 2016February 7, 2016Matt Newman1 Comment

Here.

Even before the holding, the Court brushes aside some pretty disturbing facts, including:

OCS noted that Casey might be affiliated with the Asa’carsamiut Tribe and that the children were believed to be Indian children affiliated with the Tribe. . . . In September the Tribe attempted to intervene. Because the Tribe’s documents were ambiguous about Casey’s tribal membership and the Tribe did not respond to the trial court’s request for clarification, in November the trial court denied the intervention motion without prejudice. At about the same time the trial court granted OCS’s motion to remove the children from Kent’s home.

In August 2013 OCS petitioned to terminate Kent’s and Casey’s parental rights, stating that the children were “not believed to be Indian children” and setting out the grounds for termination. In its order terminating Kent’s parental rights, the trial court first stated that it had made findings at various stages of the case that the children were not Indian children under ICWA, that no party had presented contrary information at trial or asked the court to reconsider its earlier rulings, and that the children were not Indian children under ICWA.

On the Expert Witness issue:

When determining whether a witness satisfies ICWA’s “qualified expert witness” requirement, we have considered the Bureau of Indian Affairs(BIA) Guidelines for State Courts; Indian Child Custody Proceedings (1979 BIA Guidelines). . . . In February 2015 — after the termination trial in this case but before the remand — the BIA adopted Guidelines for State Courts and Agencies in Indian Child Custody Proceedings (2015 BIA Guidelines) to “supersede and replace the guidelines published in 1979.” Less than a month later the BIA published proposed new ICWA regulations to “complement [the] recently published Guidelines for State Courts and Agencies in Indian Child Custody Proceedings.” The proposed regulations have not yet been adopted.

OCS argues that “because the BIA is in the process of adopting ICWA regulations whose final content is unknown, it would be premature for this court to consider overturning Alaska law on ICWA experts before knowing what the BIA’s final word on qualified experts is.” We agree. Final regulations have not yet been adopted and we thus cannot determine whether they will include such a requirement in the future. We decline to overrule our longstanding precedent based on the possibility that BIA regulations will require a different result in the future.

ICWA Placement Preferences Case out of Alaska

January 25, 2016Kate Fort

Here.

The superior court again concluded that [grandparents] were not an appropriate placement because of their attitude and failure to give Caitlin’s medical equipment to OCS.

***

The superior court’s finding that the grandparents were an unsafe placement is supported by substantial evidence in the record. We therefore affirm the superior court’s decision to deny placement with [grandparents].

Alaska SCT Holds Yupik Parent’s Choice to Live Subsistence Way of Life Constituted “Voluntarily and Unreasonable” Unemployment Under State Child Support Law

January 8, 2016January 8, 2016Matt Newman1 Comment

Opinion in re Sharpe v. Sharpe (Alaska Jan. 8 2016)

In a 3-2 decision, Alaska’s Supreme Court has affirmed a lower court’s decision denying a motion for modification of child support to an Yup’ik Eskimo who the court believed was unreasonably unemployed when she quit her $120k job in Anchorage for a traditional way of life as a stay-at-home mom in the Native village of Stebbins Community Association.

Excerpt from Justice Bolger’s majority opinion:

Despite this consideration, the dissent worries that the superior court “trivialize[s] Alaska Natives’ way of life”60 and “devalues Alaska Natives’ cultural, spiritual, and religious connections to their villages and their subsistence lifestyle.”61 Yet in reality the dissent’s desired outcome would have enormous financial implications for Alaska Native children. “The primary purpose of Rule 90.3 is to ensure that child support orders are adequate to meet the needs of children, subject to the ability of parents to pay.”62 Granting either parent absolute freedom to exit the workforce would undermine this purpose.

Relevant excerpt from Justice Winfree’s dissent:

The fundamental flaw in the superior court’s analysis is its conflation of the legitimacy of Jolene’s move with the reasonableness of her unemployment in Stebbins and the manner in which the court imputed income to Jolene: “[T]he choice that I’m presented with is between treating [Jolene] as having zero income or . . . having imputed to her the income that she had at Alyeska . . . .” This was a false choice. The questions that should have been posed and answered at the hearing were: (1) whether Jolene’s move to Stebbins was for legitimate reasons; (2) whether Jolene was in fact unreasonably unemployed in Stebbins; and if so, (3) what level of income should have been imputed to Jolene based on her work history, her qualifications, and her job opportunities in Stebbins. 36

The court found that Jolene’s decision to leave her employment in Anchorage and relocate to Stebbins to reconnect with her cultural roots was unreasonable because Jolene had not “established that her situation in Anchorage was destructive or adverse to her” given that there was no evidence “that she suffered from mental illness or from some sort of emotional state or psychological state that she needed to leave the urban setting, that she needed medically or psychologically or spiritually to leave Anchorage.” But we never have required relocating parents to show that their prior locations were destructive to them or that they suffered from psychological conditions or mental illnesses to justify their relocation. Moreover the court’s statements are at odds with its earlier custody decisions favoring Jyzyk based on Jolene’s alcohol issues and with the evidence that Jolene’s alcohol issues began shortly after she started working for Alyeska.37 To the extent the court today silently approves the superior court’s reliance on “no destructive situation” and “no mental illness” factors to decide that a relocation is not legitimate, I strongly disagree.

In my view, even without considering Jolene’s express Free Exercise claim raised on appeal, her relocation to Stebbins was legitimate — to the extent the superior court made a factual finding that Jolene’s move to Stebbins was not legitimate, that finding is clearly erroneous. No evidence in the record suggests that Jolene’s relocation to Stebbins was for the purpose of decreasing her child support obligation. The court told Jolene it had “heard [her] testimony and . . . [did not] question . . . [her] sincerity and . . . the value [she] place[d] in reconnecting with [her] . . . cultural . . . roots . . . .” The court also found that both Jolene and her daughter derived some benefit from Jolene’s move to Stebbins, and Jyzyk agreed that Jolene benefitted to some extent from the move.

ICWA Qualified Expert Witness (primarily) Case Out of Alaska

May 4, 2015May 4, 2015Kate Fort

Here.

Footnote 7 discusses the old and new Guidelines with regards to QEWs, though the court relied primarily on the old Guidelines (the professional person who is an expert professional). The specific qualifications of the QEW in this case is discussed at pages 17-20.

Court held no due process violations and that termination was affirmed.