AKCODE

Revisor’s notes. —

In 1966, under the authority of AS 01.05.031 and § 3, ch. 24, SLA 1966, “district court,” “district judge,” and “magistrate” were substituted for “district magistrate court,” “district magistrate,” and “deputy magistrate,” respectively, throughout the title. For a description of legislation further implementing § 3, ch. 24, SLA 1966, see 1971 House Journal, p. 52.

The provisions of this title were redrafted in 1982 and 1988 to remove personal pronouns pursuant to § 4, ch. 58, SLA 1982, and in 1982, 1988, 1998, 2008, and 2016 to make other minor word changes.

Cross references. —

For constitutional provisions related to the judiciary, see art. IV, Constitution of the State of Alaska.

Chapter 05. The Supreme Court.

Administrative Code. —

For adjustments to judicial salaries, see 2 AAC 06.

Sec. 22.05.010. Jurisdiction.

The supreme court has final appellate jurisdiction in all actions and proceedings. However, a party has only one appeal as a matter of right from an action or proceeding commenced in either the district court or the superior court.
Appeal to the supreme court is a matter of right only in those actions and proceedings from which there is no right of appeal to the court of appeals under AS 22.07.020 or to the superior court under AS 22.10.020 or AS 22.15.240 .
A decision of the superior court on an appeal from an administrative agency decision may be appealed to the supreme court as a matter of right.
The supreme court may in its discretion review a final decision of the court of appeals on application of a party under AS 22.07.030 . The supreme court may in its discretion review a final decision of the superior court on an appeal of a civil case commenced in the district court. In this subsection, “final decision” means a decision or order, other than a dismissal by consent of all parties, that closes a matter in the court of appeals or the superior court, as applicable.
The supreme court may issue injunctions, writs, and all other process necessary to the complete exercise of its jurisdiction.
The supreme court may, in its discretion, review a final decision of the Military Appeals Commission under AS 26.05.645 for which a sentence of confinement is imposed, the right to appeal to the Military Appeals Commission under AS 26.05.615 or AS 26.05.640 has been exhausted, and a petition for review is filed under AS 26.05.645 .

History. (§ 1 ch 50 SLA 1959; am § 1 ch 117 SLA 1969; am § 2 ch 12 SLA 1980; am § 78 ch 21 SLA 2000; am § 1 ch 55 SLA 2016)

Revisor's notes. —

Chapter 50 SLA 1959 implemented the constitution by providing for the establishment of the supreme and superior court system under the constitution. It was designed to accomplish the transfer of judicial functions within the three-year transition period contemplated by the Statehood Act, P.L. 85-508, July 7, 1958, with provision being made for a more rapid transfer if the President sooner ended the jurisdiction of the territorial court by executive order.

Chapter 151 SLA 1959 was enacted amending ch. 50 SLA 1959 to provide for an earlier assumption of appellate jurisdiction by the supreme court if the 9th Circuit Court of Appeals should decline to review cases coming up from the territorial courts. In Parker v. McCarrey, 268 F.2d 907 (9th Cir. 1959), decided on June 5, 1959, the 9th Circuit held that it did not have jurisdiction to hear appeals from the territorial courts on judgments rendered after January 3, 1959. Accordingly the justices of the supreme court were appointed in August and September of 1959, rules were promulgated, and the supreme court officially assumed its appellate jurisdiction over the interim courts on October 5, 1959.

Cross references. —

For provisions conferring appellate jurisdiction on the court of appeals in actions commenced in the superior court involving criminal prosecution, as well as other matters, which jurisdiction was previously conferred on the supreme court, see AS 22.07.020 . For appellate jurisdiction and petition for review, see Rules 202 and 402, Alaska Rules of Appellate Procedure.

Effect of amendments. —

The 2016 amendment, effective August 7, 2016, added (f). Although the 2016 amendment was to have taken effect July 1, 2016, under § 13, ch. 55, SLA 2016, the governor did not sign the bill until August 6, 2016, and so the actual effective date of the 2016 amendment was August 7, 2016, under AS 01.10.070(d) .

Effective dates. —

Although the 2016 amendment was to have taken effect July 1, 2016, under § 13, ch. 55, SLA 2016, the governor did not sign the bill until August 6, 2016, and so the actual effective date of the 2016 amendment was August 7, 2016, under AS 01.10.070(d) .

Notes to Decisions

Jurisdiction delineated pursuant to Alaska Const., art. IV, § 1. —

Pursuant to the grant of power under Alaska Const., art. IV, § 1, the legislature in this section delineated the jurisdiction of the supreme court of Alaska. State v. Browder, 486 P.2d 925 (Alaska 1971).

This section places final appellate jurisdiction in all cases in supreme court. In re E.M.D., 490 P.2d 658 (Alaska 1971).

Once the appellate process is properly invoked, final appellate jurisdiction is in the supreme court; for to hold otherwise would contravene the explicit constitutional provision of Alaska Const., art. IV, § 2. State v. Marathon Oil Co., 528 P.2d 293 (Alaska 1974).

Lack of jurisdiction. —

Supreme court did not have jurisdiction to directly review an arrestee's criminal convictions as a part of his civil appeal because the arrestee had a right of appeal to the court of appeals or superior court, but he could not appeal his criminal convictions to the supreme court as a matter of right. Jackson v. Borough of Haines, 441 P.3d 925 (Alaska 2019).

Subsection (a) implements Alaska Const., art. IV, § 2(a). —

Alaska Const., art. IV, § 2(a), which provides, in part: “The supreme court shall be the highest court of the State, with final appellate jurisdiction” is implemented by the legislature in subsection (a) of this section. City & Borough of Juneau v. Thibodeau, 595 P.2d 626 (Alaska 1979).

Appeal for purpose of awarding attorneys' fees. —

Subsection (b) of this section provides for an appeal to the supreme court from civil actions commenced in the superior court, but it draws no distinctions between judgments which are adverse because a party has been required to pay money for costs and attorney’s fees and those which are adverse because a party has been required to pay money as damages. In each case, an appeal is a matter of right. La Moureaux v. Totem Ocean Trailer Express, 651 P.2d 839 (Alaska 1982).

Although a testing facility had closed down and stopped serving patients due to an injunction issued by lower court by the time of its appeal, the facility’s appeal was not moot because trial court had entered an award of attorney fees against it, and under subsection (b), the facility could appeal as of right. Bridges v. Banner Health, 201 P.3d 484 (Alaska 2008), modified, — P.3d — (Alaska 2009).

This section clearly distinguishes between appeals and other forms of review. State v. Browder, 486 P.2d 925 (Alaska 1971).

Appellate jurisdiction may be exercised other than by appeal. —

This section is a clear manifestation of the legislature’s intent that the supreme court would be able to exercise its final appellate jurisdiction other than by appeal. State v. Browder, 486 P.2d 925 (Alaska 1971).

The proviso that the supreme court may issue injunctions, writs and all other writs necessary to the complete exercise of its jurisdiction was a clear manifestation of the legislature’s intent that the supreme court would be able to exercise its final appellate jurisdiction other than by appeal. City & Borough of Juneau v. Thibodeau, 595 P.2d 626 (Alaska 1979).

Subsequent appeal of related later proceeding. —

Where the son helped the father obtain a bank loan, the trial court awarded judgment in 2005 in favor of the son for specific performance of their separate contract regarding the bank loan; the father’s 2006 appeal of that judgment was dismissed for failure to prosecute under Alaska R. App. P. 511.5. Because he only had one right of appeal under this section, the father could not raise the same claims on appeal of a 2007 judgment ordering a writ of execution. Wagner v. Wagner, 205 P.3d 306 (Alaska 2009).

Appeals are specifically limited. State v. Browder, 486 P.2d 925 (Alaska 1971).

But other forms of review have no limitations placed on them. —

Appeals are specifically limited, whereas the other forms of review authorized under this section, by virtue of the language “all . . . writs necessary . . . to the complete exercise of . . . [the supreme court’s] jurisdiction” have no limitations placed on them. State v. Browder, 486 P.2d 925 (Alaska 1971).

Petition for review. —

This court has the discretionary power to treat a matter filed as a petition for review as an appeal. Surina v. Buckalew, 629 P.2d 969 (Alaska 1981).

Memorandum opinion interpreted as “final judgment”. —

The supreme court has in the past interpreted a memorandum opinion as a “final judgment” for purposes of appeal where such opinion clearly evidences the judge’s intent to presently and finally dispose of the matter pending before him. Breese v. Smith, 501 P.2d 159 (Alaska 1972).

Where, in a case to determine the right of a student to choose his own hairstyle, the superior court did more than merely dissolve an outstanding temporary restraining order enjoining defendant school officials from denying plaintiff student permission to attend classes but also considered the parties’ claims and evidence, balanced the competing interest in favor of the orderly management of schools, held that the administrative hair length regulation in question was a “reasonable regulation,” and rendered judgment in favor of defendant principal and the school board, the superior court, manifested its intention to finally dispose of the student’s claim for relief. Therefore, the supreme court possessed appellate jurisdiction in the case. Breese v. Smith, 501 P.2d 159 (Alaska 1972).

Review of nonappealable orders or decisions. —

See, decided prior to the 1980 legislation which rewrote this section and enacted AS 22.07, Hanby v. State, 479 P.2d 486 (Alaska 1970).

Advisory opinions. —

While advisory opinions should generally be avoided, the supreme court may, under the public interest exception to the mootness doctrine, decide important public questions which are capable of repetition while continually evading review. Galaktionoff v. State, 486 P.2d 919 (Alaska 1971).

Discretionary review in civil cases. —

In civil cases an order of the superior court issued in its appellate capacity which remands for further proceedings is not a final judgment for purposes of App. R. 5 (now Appellate Rule 202), concerning judgments from which an appeal may be taken. However, a party to such a remand may properly invoke supreme court discretionary review jurisdiction where the requirements of App. R. 23 and 24(a) [now Appellate Rules 402 and 403], providing for review of nonappealable orders or decisions and limiting the granting of petition for review, respectively, are met. City & Borough of Juneau v. Thibodeau, 595 P.2d 626 (Alaska 1979).

The exercise of discretionary review in civil cases will insure that the supreme court has the opportunity to exercise final review of questions decided by the lower court in remanding a case whenever it is necessary to provide immediate guidance on a particular matter. City & Borough of Juneau v. Thibodeau, 595 P.2d 626 (Alaska 1979).

Exclusive jurisdiction over inmate's appeal from administrative decisions. —

Where a trial court denied an inmate’s application for post-conviction relief based on allegations of improper equipment and safety features in prison and retaliation for the filing of the application, the court of appeals did not have jurisdiction over the inmate’s appeal from the denial because such claims were not proper basis for an application for post-conviction relief and under subsections (a) and (c) of this section, only the state supreme court had jurisdiction over appeals from administrative agency decisions like those raised by the inmate. Hertz v. State, 81 P.3d 1011 (Alaska Ct. App. 2004).

Supreme court had jurisdiction over review of administrative appeal. —

Appellate court had no jurisdiction to hear inmate’s appeal of a decision from superior court affirming the decision of the Alaska Deputy Commissioner of Public Safety that inmate was required to register as a sex offender under AS 12.63.020 because the decision being appealed was the final decision issued by superior court in an administrative appeal; thus, under AS 22.05.015(c) of this section and Alaska R. App. P. 202(a), the appeal had to be pursued in the Alaska Supreme Court. Holden v. State, 190 P.3d 725 (Alaska Ct. App. 2008).

Enforcement or denial of civil investigative demand is final and therefore appealable to the state supreme court. Matanuska Maid v. State, 620 P.2d 182 (Alaska 1980), overruled in part, Rosen v. State Bd. of Pub. Accountancy, 689 P.2d 478 (Alaska 1984).

Applied in

Theodore v. Zurich Gen. Accident & Liab. Ins. Co., 364 P.2d 51 (Alaska 1961); State v. Smith, 417 P.2d 252 (Alaska 1966); Gilmore v. State, 479 P.2d 301 (Alaska 1971); In re E.M.D., 490 P.2d 658 (Alaska 1971); State v. Gieffels, 554 P.2d 460 (Alaska 1976); State v. Carlson, 555 P.2d 269 (Alaska 1976); State v. Carlson, 560 P.2d 26 (Alaska 1977); State v. Taylor, 566 P.2d 1016 (Alaska 1977); Anchorage v. Cook, 598 P.2d 939 (Alaska 1979); Helmer v. State, 608 P.2d 38 (Alaska 1980); Johnson v. State, 631 P.2d 508 (Alaska Ct. App. 1981); State v. Michel, 634 P.2d 383 (Alaska Ct. App. 1981); In re Estate of Adkins, 874 P.2d 271 (Alaska 1994); Puhlman v. Turner, 874 P.2d 291 (Alaska 1994); Higgins v. Briggs, 876 P.2d 539 (Alaska Ct. App. 1994); Fletcher v. Trademark Constr., Inc., 80 P.3d 725 (Alaska 2003); Beal v. Beal, 88 P.3d 104 (Alaska 2004).

Quoted in

State v. Chaney, 477 P.2d 441 (Alaska 1970); Metler v. State, 581 P.2d 669 (Alaska 1978); Preston v. State, 634 P.2d 550 (Alaska 1981); North Slope Borough, Dep't of Admin. & Fin., Tax Audit Div. v. Green Int'l, Inc., 969 P.2d 1161 (Alaska 1999); State v. Carlin, 249 P.3d 752 (Alaska 2011); In re Mark V., 324 P.3d 840 (Alaska 2014); Chinuhuk v. State, 472 P.3d 511 (Alaska 2020).

Cited in

State v. Adkerson, 403 P.2d 673 (Alaska 1965); King v. Alaska State Hous. Auth., 512 P.2d 887 (Alaska 1973); State v. Thomas, 525 P.2d 1092 (Alaska 1974); State v. Lancaster, 550 P.2d 1257 (Alaska 1976); State v. Van Brocklin, 598 P.2d 938 (Alaska 1979); In re O.S.D., 672 P.2d 1304 (Alaska 1983); Rosson v. Boyd, 727 P.2d 765 (Alaska 1986); Weidner v. State, 764 P.2d 717 (Alaska Ct. App. 1988); Romero v. Alaska Fin. Servs., 873 P.2d 1278 (Alaska 1994); Dwight v. Humana Hosp. Alaska, 876 P.2d 1114 (Alaska 1994); Department of Revenue, Child Support Enforcement Div. v. A.H., 880 P.2d 1048 (Alaska 1994); Pride v. Harris, 882 P.2d 381 (Alaska 1994); Rozkydal v. State, 938 P.2d 1091 (Alaska Ct. App. 1997); Hillman v. Municipality of Anchorage, 941 P.2d 211 (Alaska Ct. App. 1997); Savage Arms, Inc. v. Western Auto Supply Co., 18 P.3d 49 (Alaska 2001); Conservatorship Estate of K.H. v. Cont'l Ins. Co., 73 P.3d 588 (Alaska 2003); Yost v. State, 234 P.3d 1264 (Alaska 2010); Manning v. State, 420 P.3d 1270 (Alaska 2018).

Collateral references. —

20 Am. Jur. 2d, Courts, § 1 et seq.

46 Am. Jur. 2d, Judges, § 1 et seq.

21 C.J.S., Courts, § 1 et seq.

48A C.J.S., Judges, § 1 et seq.

Jurisdiction of action at law for damages for tort concerning property in another state. 30 ALR2d 1219.

Sec. 22.05.015. Transfer of appellate cases.

The supreme court may transfer to the court of appeals for decision a case pending before the supreme court if the case is within the jurisdiction of the court of appeals.
The supreme court may take jurisdiction of a case pending before the court of appeals if the court of appeals certifies to the supreme court that the case involves a significant question of law under the Constitution of the United States or under the constitution of the state or involves an issue of substantial public interest that should be determined by the supreme court.
A case filed in the supreme court or in the court of appeals may not be dismissed by one court on the ground that it is within the jurisdiction of the other court. The case shall be transferred to the proper court.

History. (§ 3 ch 12 SLA 1980)

Notes to Decisions

Supreme court had jurisdiction over review of administrative appeal. —

Appellate court had no jurisdiction to hear inmate’s appeal of a decision from superior court affirming the decision of the Alaska Deputy Commissioner of Public Safety that inmate was required to register as a sex offender under AS 12.63.020 because the decision being appealed was the final decision issued by superior court in an administrative appeal; thus, under subsection (c) of this section and Alaska R. App. P. 202(a), the appeal had to be pursued in the Alaska Supreme Court. Holden v. State, 190 P.3d 725 (Alaska Ct. App. 2008).

Applied in

Jarnig v. State, 309 P.3d 1270 (Alaska Ct. App. 2013); Scudero v. State, 496 P.3d 381 (Alaska 2021).

Quoted in

Van Brunt v. State, 653 P.2d 343 (Alaska Ct. App. 1982).

Stated in

Kochutin v. State, 739 P.2d 170 (Alaska 1987).

Cited in

State v. Serdahely, 635 P.2d 1182 (Alaska 1981); Miller v. State, 648 P.2d 1015 (Alaska 1982); State v. Ostrosky, 667 P.2d 1184 (Alaska 1983).

Sec. 22.05.020. Composition and general powers of supreme court.

The supreme court is a court of record and consists of five justices including the chief justice.
The supreme court is vested with all power and authority necessary to carry into complete execution all its judgments, decrees, and determinations in all matters within its jurisdiction, according to the constitution, the laws of the state, and the common law.
The supreme court may prescribe by rule the fees to be charged by all courts for judicial services.

History. (§ 2 ch 50 SLA 1959; am § 1 ch 11 SLA 1960; am § 1 ch 83 SLA 1967; am § 77 ch 6 SLA 1984)

Cross references. —

For fees established by the supreme court, see Rule 9, Alaska Rules of Administration.

Notes to Decisions

Equitable powers. —

Alaska Supreme Court could not exercise the Court's equitable powers to award a husband and wife Permanent Fund Dividends for two years because the Court was not allowed to exercise such powers to contravene a properly enacted statute specifying residency requirements for such purposes. Jones v. State, 441 P.3d 966 (Alaska 2019).

Quoted in

State v. Anchorage, 513 P.2d 1104 (Alaska 1973).

Cited in

Buckalew v. Holloway, 604 P.2d 240 (Alaska 1979).

Collateral references. —

Power of successor judge taking office during term time to vacate, etc., judgment entered by his predecessor. 11 ALR2d 1117.

Sec. 22.05.025. Court facilities.

The supreme court has authority over
1. all matters relating to the
  1. maintenance, occupancy, and operation of all court facilities;
  2. rent or lease of facilities for court system purposes, subject to AS 36.30.080(c) ; and
  3. acquisition of facilities for court system purposes by lease-purchase or lease-financing agreements, subject to AS 36.30.085 ; and
2. the planning, design, and construction of court facilities but, in the exercise of its authority under this paragraph, the supreme court shall cooperate and coordinate with the Department of Transportation and Public Facilities so that court facility construction projects are carried out in accordance with the statutes and regulations applicable to state public works projects.
In this section, “court facility” means a state facility in which 75 percent or more of the net usable space is occupied by the court system and other justice-related agencies.

History. (§ 1 ch 160 SLA 1980; am § 1 ch 78 SLA 1984; am § 5 ch 181 SLA 1990; am § 2 ch 75 SLA 1994)

Notes to Decisions

Cited in

Native Village of Eklutna v. Alaska R.R. Corp., 87 P.3d 41 (Alaska 2004).

Sec. 22.05.030. Session of court.

The supreme court shall always be open for the transaction of business in the manner determined by rule of the court. The supreme court shall hold sessions on dates and at places fixed by court rule.

History. (§ 3 ch 50 SLA 1959; am § 2 ch 11 SLA 1960)

Cross references. —

For sessions and offices of the supreme court, see Rule 17, Alaska Rules of Administration.

Sec. 22.05.040. Effect of adjournment.

An adjournment from day to day, or from time to time, is a recess in the session, and does not prevent the court from sitting at any time.

History. (§ 4 ch 50 SLA 1959)

Sec. 22.05.050. Process.

Process of the supreme court shall be in the name of the State of Alaska, signed by the clerk of the court or the deputy clerk, dated when issued, sealed with the seal of the court, and made returnable according to rule prescribed by the court.

History. (§ 5 ch 50 SLA 1959)

Sec. 22.05.060. Seals of court.

The seal of the supreme court is a vignette of the official flag of the state with the words “Seal of the Supreme Court of the State of Alaska” surrounding the vignette. The supreme court shall prescribe by rule the seals of court for the court of appeals and for the superior and district courts.

History. (§ 6 ch 50 SLA 1959; am § 1 ch 64 SLA 1974; am § 4 ch 12 SLA 1980)

Sec. 22.05.070. Qualifications of justices.

A justice of the supreme court shall be a citizen of the United States and of the state, a resident of the state for five years immediately preceding appointment, have been engaged for not less than eight years immediately preceding appointment in the active practice of law, and at the time of appointment be licensed to practice law in the state. The active practice of law includes

sitting as a judge in a state or territorial court;
being actually engaged in advising and representing clients in matters of law;
rendering legal services to an agency, branch, or department of a civil government within the United States or a state or territory of the United States, in an elective, appointive, or employed capacity;
serving as a professor, associate professor, or assistant professor in a law school accredited by the American Bar Association.

History. (§ 7 ch 50 SLA 1959; am § 5 ch 12 SLA 1980)

Cross references. —

For constitutional provision related to qualifications of justices, see art. IV, § 4, Constitution of the State of Alaska.

Notes to Decisions

“Practice of law” not necessarily that to be used in other contexts. —

Although the practice of law has been defined by Alaska statute for the qualifications of justices, this definition is not necessarily the same as that to be used in determining whether attorneys seeking admission to the bar have had the requisite practice or whether certain activities constitute the unauthorized practice of law, and, similarly, different criteria may well be applicable for one suspended from the practice of law. In re Robson, 575 P.2d 771 (Alaska 1978).

Work of legal nature performed while in air force is not listed in this section as one of the activities which shall constitute the active practice of law. In re Babcock, 387 P.2d 694 (Alaska 1963).

Cited in

Skuse v. State, 714 P.2d 368 (Alaska Ct. App. 1986).

Collateral references. —

Validity of requirement that candidate or public officer have been resident of governmental unit for specified period. 65 ALR3d 1048.

Validity and construction of constitutional or statutory provision making legal knowledge or experience a condition of eligibility for judicial office. 71 ALR3d 498.

Sec. 22.05.080. Vacancies.

The governor shall fill a vacancy or appoint a successor to fill an impending vacancy in the office of supreme court justice within 45 days after receiving nominations from the judicial council, by appointing one of two or more persons nominated by the judicial council for each actual or impending vacancy. An appointment to fill an impending vacancy becomes effective upon the actual occurrence of the vacancy.
The office of a supreme court justice, including the office of chief justice, becomes vacant 90 days after the election at which the justice is rejected by a majority of those voting on the question or for which the justice fails to file a declaration of candidacy. Upon the occurrence of (1) an actual vacancy; (2) the certification of rejection following an election; or (3) the election following failure of a justice to file a declaration of candidacy, the judicial council shall meet within 90 days and submit to the governor the names of two or more persons qualified for the judicial office; except that this 90-day period may be extended by the council with the concurrence of the supreme court. In the event of an impending vacancy other than by reason of rejection or failure to file a declaration of candidacy, the council may meet at any time within the 90-day period immediately preceding the effective date of the vacancy and submit to the governor the names of two or more persons qualified for the judicial office.

History. (§ 8(2) ch 50 SLA 1959; am § 30 ch 32 SLA 1971; am § 1 ch 93 SLA 1975; am §§ 5, 6 ch 194 SLA 1976; am § 1 ch 7 SLA 1985)

Cross references. —

For provisions governing the judicial council, see art. IV, sec. 8, Constitution of the State of Alaska.

Sec. 22.05.090. Oath of office.

Each supreme court justice, upon entering office, shall take and subscribe to an oath of office required of all officers under the constitution and any further oath or affirmation that may be prescribed by law.

History. (§ 9 ch 50 SLA 1959)

Cross references. —

For required oath of office, see art. XII, sec. 5, Constitution of the State of Alaska.

Sec. 22.05.100. Approval or rejection.

Each supreme court justice is subject to approval or rejection as provided in AS 15 (Alaska Election Code). The judicial council shall conduct an evaluation of each justice before the retention election and shall provide to the public information about that justice and may provide a recommendation regarding retention or rejection. The information and any recommendation shall be made public at least 60 days before the retention election. The judicial council shall also provide the information and any recommendation to the office of the lieutenant governor in time for publication in the election pamphlet under AS 15.58.050 . If a majority of those voting on the question rejects the candidacy, the rejected justice may not be appointed to fill any vacancy in the supreme court, court of appeals, superior court, or district courts of the state for a period of four years thereafter.

History. (§ 10 ch 50 SLA 1959; am § 1 ch 85 SLA 1960; am § 1 ch 87 SLA 1975; am § 6 ch 12 SLA 1980)

Sec. 22.05.110. Incapacity. [Repealed, § 3 ch 213 SLA 1968.]

Sec. 22.05.120. Impeachment.

A supreme court justice is subject to impeachment by the legislature for malfeasance or misfeasance in the performance of official duties. Impeachment shall originate in the senate and shall be approved by a two-thirds vote of its members. The motion for impeachment must list fully the basis for the proceeding. Trial on impeachment shall be conducted by the house of representatives. A supreme court justice designated by the court shall preside at the trial. Concurrence of two-thirds of the members of the house is required for a judgment of impeachment. The judgment may not extend beyond removal from office, but does not prevent proceedings in the courts on the same or related charges.

History. (§ 12 ch 50 SLA 1959)

Cross references. —

For constitutional provision governing impeachment of judges and justices, see art. IV, sec. 12, Constitution of the State of Alaska.

Sec. 22.05.130. Restrictions.

A supreme court justice while holding office may not practice law, nor engage in the conduct of any other profession, vocation, or business for profit or compensation, which conduct would interfere with the performance of the judicial duties of the justice, nor may a justice hold office in a political party, or hold any other office or position of profit under the United States, the state, or its political subdivisions. A supreme court justice filing for another elective public office other than delegate to a constitutional convention of this state or the United States forfeits the judicial position.

History. (§ 13 ch 50 SLA 1959; am § 1 ch 30 SLA 1971; am § 7 ch 12 SLA 1980)

Notes to Decisions

Quoted in

Begich v. Jefferson, 441 P.2d 27 (Alaska 1968).

Collateral references. —

Validity and application of statute regarding prohibition of judge from practicing law. 17 ALR4th 829.

Sec. 22.05.140. Compensation.

Except as provided in (d) of this section, the monthly base salary of the chief justice is $13,808, and for each other justice, the monthly base salary is $13,767.
A salary disbursement may not be issued to a justice of the supreme court until the justice has filed with the state officer designated to issue salary disbursements an affidavit that no matter referred to the justice for opinion or decision has been uncompleted or undecided by the justice for a period of more than six months.
In addition to the monthly salary, each justice is entitled to receive a geographic cost-of-living adjustment each year on $100,000 of the justice’s annual base salary for that year, based on the location of the primary office assignment. The commissioner of administration shall calculate the geographic cost-of-living adjustment based on the geographic pay differentials established under AS 39.27.020(a) . Retirement contributions and benefits shall be computed only on the monthly base salary not including the geographic cost-of-living adjustment.
Beginning July 1, 2006, if the monthly basic salary for Step E, Range 28, of the salary schedule set out in AS 39.27.011 increases, the monthly base salary of the chief justice and the other justices shall increase by the same percentage. The increase takes effect when the salary increase under AS 39.27.011 takes effect and may be retroactive if consistent with the change in AS 39.27.011. The commissioner of administration shall, by regulation, establish the percentage at which the salary is increased and the increased salary amount.

History. (§ 14 ch 50 SLA 1959; am § 4 ch 115 SLA 1965; am § 2 ch 83 SLA 1967; am § 1 ch 101 SLA 1969; am § 1 ch 193 SLA 1970; am § 1 ch 34 SLA 1974; am § 1 ch 205 SLA 1975; am § 2 ch 148 SLA 1976; am § 3 ch 263 SLA 1976; am § 4 ch 80 SLA 1978; am §§ 3, 18 ch 3 SLA 1980; am §§ 53, 54 ch 59 SLA 1982; am §§ 1, 2 ch 54 SLA 1990; am §§ 1, 2 ch 19 SLA 1991; am § 2 ch 4 FSSLA 1996; § 6 ch 175 SLA 2004; am §§ 2, 3 ch 51 SLA 2006; am § 1 ch 47 SLA 2013)

Cross references. —

For constitutional provision related to justices’ compensation, see art. IV, § 13, Constitution of the State of Alaska.

Administrative Code. —

For adjustments to judicial salaries, see 2 AAC 6.

Effect of amendments. —

The 2013 amendment, effective July 1, 2013, in (c), in the first sentence, substituted “each year on $100,000 of the justice’s annual base salary for that year” for “under AS 22.35.010 ”, added the second sentence.

Editor’s notes. —

Chapter 205, SLA 1975, which amended this section, was submitted to the voters by referendum and was rejected. Under § 45, ch. 4, FSSLA 1996, the provisions of ch. 4, FSSLA 1996, which amended subsection (a), are not severable, notwithstanding AS 01.10.030 .

Sec. 22.05.150. [Renumbered as AS 22.20.300.]

Sec. 22.05.160. Recording districts. [Repealed, § 4 ch 118 SLA 1976. For current law, see AS 44.37.020(b) and 44.37.025.]

Chapter 07. The Court of Appeals.

Administrative Code. —

For adjustments to judicial salaries, see 2 AAC 06.

Sec. 22.07.010. Establishment.

There is established the court of appeals, consisting of four judges. The court of appeals is a court of record.

History. (§ 1 ch 12 SLA 1980; am § 1 ch 17 SLA 2020)

Effect of amendments. —

The 2020 amendment, effective July 1, 2020, substituted “four judges” for “three judges”.

Notes to Decisions

In general. —

The court of appeals is a statutory court with limited jurisdiction, which is set in AS 22.07.020 . Hertz v. State, 81 P.3d 1011 (Alaska Ct. App. 2004).

Cited in

Allen v. Municipality of Anchorage, 168 P.3d 890 (Alaska Ct. App. 2007); State v. Carlin, 249 P.3d 752 (Alaska 2011).

Collateral references. —

20 Am. Jur. 2d, Courts, § 1 et seq.

46 Am. Jur. 2d, Judges, § 1 et seq.

21 C.J.S., Courts, § 1 et seq.

48A C.J.S., Judges, § 1 et seq.

Sec. 22.07.020. Jurisdiction.

The court of appeals has appellate jurisdiction in actions and proceedings commenced in the superior court involving
1. criminal prosecution;
2. post-conviction relief;
3. matters under AS 47.12, including waiver of jurisdiction over a minor under AS 47.12.100 ;
4. extradition;
5. habeas corpus;
6. probation and parole; and
7. bail.
Except as limited in AS 12.55.120 , the court of appeals has jurisdiction to hear appeals of unsuspended sentences of imprisonment exceeding two years for a felony offense or 120 days for a misdemeanor offense imposed by the superior court on the grounds that the sentence is excessive, or a sentence of any length on the grounds that it is too lenient. The court of appeals, in the exercise of this jurisdiction, may modify the sentence as provided by law and the Constitution of the State of Alaska.
The court of appeals has jurisdiction to review (1) a final decision of the district court in an action or proceeding involving criminal prosecution, post-conviction relief, extradition, probation and parole, habeas corpus, or bail; and (2) the final decision of the district court on a sentence imposed by it if the sentence exceeds 120 days of unsuspended incarceration for a misdemeanor offense. In this subsection, “final decision” means a decision or order, other than dismissal by consent of all parties, that closes a matter in the district court.
An appeal to the court of appeals is a matter of right in all actions and proceedings within its jurisdiction except that
1. the right of appeal to the court of appeals is waived if an appellant chooses to appeal the final decision of the district court to the superior court; and
2. the state’s right of appeal in criminal cases is limited by the prohibitions against double jeopardy contained in the United States Constitution and the Alaska Constitution.
The court of appeals may in its discretion (1) review a final decision of the superior court on an appeal from a district court in an action or proceeding involving criminal prosecution, post-conviction relief, extradition, probation and parole, habeas corpus or bail; (2) review the final decision of the superior court on appeal of a sentence imposed by the district court. In this subsection, “final decision” means a decision or order, other than a dismissal by consent of all parties, that closes a matter in the superior court.
The court of appeals may issue injunctions, writs, and all other process necessary for the complete exercise of its jurisdiction.
A final decision of the court of appeals is binding on the superior court and on the district court unless superseded by a decision of the supreme court.

History. (§ 1 ch 12 SLA 1980; am § 2 ch 71 SLA 1993; am §§ 11, 12 ch 79 SLA 1995; am § 4 ch 59 SLA 1996)

Cross references. —

For cases discussing sentence appeals, see AS 12.55.120 .

Notes to Decisions

Analysis

I. General Consideration
II. State’s Right to Appeal in Criminal Cases
III. Sentence Appeals

I.General Consideration

Annotator’s notes. —

Many of the cases cited in the notes below were decided under the supreme court jurisdictional statute, AS 22.05.010 , as it existed prior to its 1980 amendment and the enactment of AS 22.07.

Cases must almost always proceed to final judgment before review may be had as of right. Hanby v. State, 479 P.2d 486 (Alaska 1970).

When review of nonappealable orders or decisions granted. —

Review of nonappealable orders or decisions will be granted when the sound policy of permitting most trials to run their course uninterrupted by piecemeal review of litigation is outweighed by the need for more immediate justice. Hanby v. State, 479 P.2d 486 (Alaska 1970).

In order to be granted review of a nonappealable order, the case usually must pose an important question, and that question must demand an immediate answer. Hanby v. State, 479 P.2d 486 (Alaska 1970).

On occasion, cases nonappealable for one reason or another, which had been erroneously appealed, have been treated as petitions for review in order to prevent hardship and injustice. Hanby v. State, 479 P.2d 486 (Alaska 1970).

Review of a nonappealable decision was granted in the instant case because of threats posed to freedom of expression, the importance of the issues presented, the conclusive disposition review would have upon the case, the certainty of the law on the questions presented, and the lack of issues of fact relevant to the questions of law presented for review. Hanby v. State, 479 P.2d 486 (Alaska 1970).

Jurisdiction where sentence is 120 days or fewer. —

Cases which are not in agreement with the provisions of subsection (c), including Haggren v. State, 829 P.2d 842 (Alaska Ct. App. 1992), are overruled. Allen v. Municipality of Anchorage, 168 P.3d 890 (Alaska Ct. App. 2007).

Lack of jurisdiction in supreme court. —

Death of defendant. —

Because trial courts properly obtained jurisdiction over two defendants, the defendants were, in a technical sense, still subject to the jurisdiction of the Alaska courts, including the appellate court, after their deaths. State v. Carlin, 249 P.3d 752 (Alaska 2011).

Appealability of dismissal for regulatory vagueness. —

The prohibition on the state’s right of appeal in criminal cases except to test the sufficiency of an indictment does not prevent the state from petitioning for review of a trial court’s ruling dismissing a case on the ground that an underlying regulation is unconstitutionally vague. State v. Martushev, 846 P.2d 144 (Alaska Ct. App. 1993).

Constitutionality of appeal procedure. —

Requiring that an attorney sanctioned in criminal proceedings first present an appeal to the court of appeals, rather than the supreme court, does not deny him equal protection of the law. Weidner v. State, 764 P.2d 717 (Alaska Ct. App. 1988), cert. denied, 493 U.S. 1019, 110 S. Ct. 717, 107 L. Ed. 2d 737 (U.S. 1990).

Subsection (d) and Appellate Rule 202 act only to deprive the state of an appeal as a matter of right. Neither provision purports to preclude the state from seeking appellate review on a discretionary basis, and neither restricts the appellate court from granting discretionary review. State v. Mouser, 806 P.2d 330 (Alaska Ct. App. 1991).

Remand of criminal proceeding to district court. —

The decision to treat a superior court order remanding a criminal proceeding to the district court as a nonfinal decision did not affect its treatment of other criminal cases where the superior court entered a judgment of acquittal upon appeal of a criminal conviction from district court. In the latter type of cases, the entry of acquittal was clearly a final judgment for purposes of appellate review jurisdiction. City & Borough of Juneau v. Thibodeau, 595 P.2d 626 (Alaska 1979).

When indictment is dismissed for any reason, the question of its sufficiency may create an issue, and the appellate court has the power of review. State v. Shelton, 368 P.2d 817 (Alaska 1962).

Escape in and of itself does not constitute waiver of right of appeal. White v. State, 514 P.2d 814 (Alaska 1973).

Court’s discretion. —

Issues related to defendant’s discovery request did not satisfy the grounds for discretionary review under Alaska R. App. P. 302, 304, and AS 22.07.020(d)(1) ; even if the appellate court had exercised its discretion to hear the claim, the superior court properly affirmed the magistrate’s ruling where defendant did not show that the State failed to produce evidence to which he was entitled, nor did he show that he was prejudiced in any way. Buberge v. State, — P.3d — (Alaska Ct. App. Oct. 13, 2010) (memorandum decision).

This is no reason why the court by judicial decree should add withdrawal of the right of appeal to the statutory punishments prescribed for the crime of escape. In addition to bordering on judicial legislation, such additional punishment would have no relation to the crime involved. White v. State, 514 P.2d 814 (Alaska 1973).

Considerations in defense of judgment below. —

The appellate court should consider in defense of a judgment below any matter appearing in the record, even if not passed upon by the lower court. State v. Pete, 420 P.2d 338 (Alaska 1966).

Post-conviction relief sought by appeal from agency decision. —

Where a trial court denied an inmate’s application for post-conviction relief based on allegations of improper equipment and safety features in prison and retaliation for the filing of the application, such claims were not proper basis for an application for post-conviction relief and only the state supreme court had jurisdiction over appeals from administrative agency decisions like those raised by the inmate; hence, under paragraph (a)(2) of this section, the court of appeals did not have jurisdiction over the inmate’s appeal. Hertz v. State, 81 P.3d 1011 (Alaska Ct. App. 2004).

Petition for rehearing. —

Appellate concurring opinion identifying potential problems with the State’s case did not entitle defendant to re-open an appeal because (1) the issues were preserved in the trial court and raised in the statement of points on appeal, so appellate counsel’s failure to brief the issues was not due to oversight or neglect, and the issues were knowingly waived, and (2) the issues did not raise a defect in the appellate court’s subject- matter jurisdiction, as the issues had nothing to do with the court’s subject-matter jurisdiction, and, if the issues were jurisdictional, the issues had to be raised in the trial court. Hicks v. State, — P.3d — (Alaska Ct. App. July 8, 2016).

Applied in

Johnson v. State, 631 P.2d 508 (Alaska Ct. App. 1981); Wilson v. State, 680 P.2d 1173 (Alaska Ct. App. 1984); State Dep't of Corr. v. Lundy, 188 P.3d 692 (Alaska Ct. App. 2008); Moses v. State, — P.3d — (Alaska Ct. App. Oct. 22, 2014); James v. State, — P.3d — (Alaska Ct. App. Dec. 11, 2019).

Quoted in

State v. Price, 715 P.2d 1183 (Alaska Ct. App. 1986); State v. Thronsen, 809 P.2d 941 (Alaska Ct. App. 1991); State v. Williams, 855 P.2d 1337 (Alaska Ct. App. 1993); In re Mark V., 324 P.3d 840 (Alaska 2014).

Stated in

Burrell v. Burrell, 696 P.2d 157 (Alaska 1984); Holden v. State, 190 P.3d 725 (Alaska Ct. App. 2008); Larson v. State, 254 P.3d 1073 (Alaska 2011); Johnson v. State, 421 P.3d 134 (Alaska Ct. App. 2018).

Cited in

Preston v. State, 634 P.2d 550 (Alaska 1981); A.M. v. State, 653 P.2d 346 (Alaska Ct. App. 1982); State v. R.H., 683 P.2d 269 (Alaska Ct. App. 1984); State v. Weaver, 736 P.2d 781 (Alaska Ct. App. 1987); Harrison v. State, 791 P.2d 359 (Alaska Ct. App. 1990); Brockway v. State, 37 P.3d 427 (Alaska Ct. App. 2001); Harvey v. Antrim, 160 P.3d 673 (Alaska Ct. App. 2007); Coffman v. State, 172 P.3d 804 (Alaska Ct. App. 2007); Beattie v. State, 258 P.3d 888 (Alaska Ct. App. 2011); Graham v. Durr, 433 P.3d 1098 (Alaska 2018); Oviok v. State, — P.3d — (Alaska Ct. App. Oct. 14, 2020).

II.State’s Right to Appeal in Criminal Cases

Annotator’s notes. —

The provisions of subsection (d) of this section correspond to the last sentence of AS 22.05.010(a) as it existed prior to 1980, except that the provisions of item (1) of subsection (d) did not exist in AS 22.05.010 .

Limitation on state’s right to appeal in criminal cases. —

The state is authorized to appeal in criminal cases only to test the sufficiency of the indictment or information. State v. Browder, 486 P.2d 925 (Alaska 1971).

The state has the right to appeal a sentence only if it contends that the sentence imposed was too lenient. State v. Gibson, 543 P.2d 406 (Alaska 1975), overruled, State v. Dunlop, 721 P.2d 604 (Alaska 1986), overruled, State v. Alyeska Pipeline Serv. Co., 723 P.2d 76 (Alaska 1986).

Double jeopardy prevents retrial of all persons acquitted in the trial court. Only where a guilty verdict rendered in the trial court has been reversed on appeal in the superior court (when that court is acting as an intermediate appellate court) can the state appeal not guilty verdicts to the supreme court. State v. Gibson, 543 P.2d 406 (Alaska 1975), overruled, State v. Dunlop, 721 P.2d 604 (Alaska 1986), overruled, State v. Alyeska Pipeline Serv. Co., 723 P.2d 76 (Alaska 1986).

The state’s right of appeal in criminal cases is limited to testing the sufficiency of indictments or informations and to sentence appeals. State v. Hannagan, 559 P.2d 1059 (Alaska 1977).

The legislature, in enacting AS 22.05.010 [as it existed prior to 1980; see now subsection (d)(2) of this section] saw fit to limit the state’s right to appeal in criminal cases. In such cases, apart from its right to appeal a sentence on the ground that it is too lenient, the state can appeal only to test the sufficiency of the indictment or information. State v. Devoe, 560 P.2d 12 (Alaska 1977).

In amending subparagraph (d)(2), the Alaska legislature did not intend to enact the specific exceptions to the final judgment rule found in 18 U.S.C. § 3731. Instead, the legislature intended to re-establish the rule announced by the court of appeals in State v. Michel, 634 P.2d 383 (Alaska 1981) the rule that the state may appeal any adverse final judgment of a trial court in a criminal action unless trial or retrial would be barred by the double jeopardy clauses of of the state or federal constitutions. State v. Walker, 887 P.2d 971 (Alaska Ct. App. 1994).

Applies only where jurisdiction is invoked by appeal. —

The limitation placed upon the state’s right to appeal in a criminal case was intended to apply only to instances where the court’s jurisdiction is sought to be invoked by appeal. State v. Browder, 486 P.2d 925 (Alaska 1971).

Such as appeals from judgments of acquittal in trial court. —

The limitation proscribing state appeals in criminal cases applies to appeals from judgments of acquittal in the trial court. State v. Marathon Oil Co., 528 P.2d 293 (Alaska 1974).

State not barred from invoking review in criminal matters. —

Alaska Const., art. IV, § 15, and underlying policies reflected in that section lend support to the conclusion that the state was not barred from invoking supreme court review jurisdiction in criminal matters. State v. Browder, 486 P.2d 925 (Alaska 1971).

Correction of erroneous ruling favorable to accused. —

Nothing in subsection (d)(2) of this section requires that an erroneous ruling favorable to the accused go uncorrected, even if the ruling is in the form of a final order; the Supreme Court extended the holding in State v. Browder, 486 P.2d 925 (Alaska 1971), to encompass all nonappealable orders final or non-final where appellate review is not barred by the state and federal double jeopardy guarantees. Kott v. State, 678 P.2d 386 (Alaska 1984).

Review of nonfinal orders or decisions in criminal cases. —

The state could invoke supreme court discretionary review jurisdiction in criminal cases where the matter sought to be reviewed involved a nonfinal order or decision of the superior court. State v. Browder, 486 P.2d 925 (Alaska 1971).

Appealing final order of superior court. —

The state is not precluded from appealing a final order of the superior court when that court is acting as an intermediate appellate court. State v. Marathon Oil Co., 528 P.2d 293 (Alaska 1974).

The state is not precluded from appealing an order of the superior court where the appellate process began at the time the appeal was taken from the judgment of the district court. State v. Marathon Oil Co., 528 P.2d 293 (Alaska 1974).

Order of new trial not final order. —

Judge’s order granting a new trial on a count for which an inconsistent verdict had been reached was not a final order, and thus the state had no right to appeal it. State v. Walker, 887 P.2d 971 (Alaska Ct. App. 1994).

Appeal from discharge in habeas corpus proceeding. —

State was not precluded from bringing an appeal from a discharge granted in a habeas corpus proceeding, since a habeas corpus proceeding is civil in nature, not criminal. Adams v. Ross, 551 P.2d 948 (Alaska 1976).

Language of AS 12.75.230 does not, of its own, negate jurisdictional language of this section. —

The language of AS 12.75.230 , “A party to a proceeding by habeas corpus may appeal from the judgment of the court refusing to allow the writ or a final judgment therein in like manner and with like effect as in an action,” does not, of its own, negate the jurisdictional language of provision that state shall have no right to appeal in criminal cases, except to test sufficiency of indictment or information, since it only permits appeals “in like manner . . . as in an action.” Adams v. Ross, 551 P.2d 948 (Alaska 1976).

Appeal in post-conviction relief proceeding. —

An Alaska Rule of Criminal Procedure 35(b) proceeding for post-conviction relief is not part of the original criminal case and therefore the state may appeal. State v. Hannagan, 559 P.2d 1059 (Alaska 1977).

A post-conviction relief proceeding instituted by the defendant under Alaska Rule of Criminal Procedure 35(b) is similar to an independent civil proceeding such as a habeas corpus proceeding for purposes of the state’s ability to appeal, and consequently the state has the right to appeal in this case. State v. Hannagan, 559 P.2d 1059 (Alaska 1977).

Appeal of order denying petition to revoke probation. —

A probation revocation hearing is not a criminal proceeding, although such proceeding is necessarily an outgrowth of a criminal case; and thus, the state has the right to appeal an order denying a petition to revoke probation. State v. Devoe, 560 P.2d 12 (Alaska 1977).

Jurisdiction to review dismissal of indictment. —

Where the actual basis for the trial court’s decision was the insufficiency of the state’s opposition, but the order which the court signed indicated that the indictment was being dismissed “for the reason that there was insufficient evidence presented to the grand jury to warrant an indictment of grand larceny,” since the effect of the trial court’s decision was to dismiss the indictment on the ground of insufficient evidence, the supreme court had jurisdiction under subsection (a) of AS 22.05.010 as it existed prior to the 1980 amendment. State v. Johnson, 525 P.2d 532 (Alaska 1974).

Even though subsection (d)(2) does not contain a clause expressly authorizing the state to pursue appeal from dismissal of an indictment as an interlocutory appeal, the legislature did not intend to deprive the state of this preexisting appellate right and this right survives amendment of the statute. State v. Waterman, 196 P.3d 1115 (Alaska Ct. App. 2008).

III.Sentence Appeals

Annotator’s notes. —

Subsection (b) of this section and subsection (b) of AS 22.05.010 as it existed prior to the 1980 amendment are substantially identical.

Authority to review criminal sentences. —

Prior decision by a three- judge court held it did not have jurisdiction to review a criminal sentence for abuse of discretion. While the current five-judge court had not had the opportunity to rule on that question, a majority of the court was of the opinion that, even if it had the authority, the sentence in the instant case did not demonstrate an abuse of discretion. See Berfield v. State, 458 P.2d 1008 (Alaska 1969) (Related opinion not citing this section).

Because defendant's sentence did not exceed two years of imprisonment, she did not have the right to appeal her sentence as excessive to the Court of Appeals of Alaska, and the Court of Appeals did not have jurisdiction to consider her excessive sentence claim. Defendant was required instead to petition the Alaska Supreme Court for discretionary sentence review. Steele v. State, — P.3d — (Alaska Ct. App. Dec. 30, 2020) (memorandum decision).

Authority to review sentences for abuse of discretion. —

It was no error for a trial court to rely on a decision of the Alaska Court of Appeals to refer sentencing to a three-judge panel because the decision had precedential value while a rehearing petition was pending before the Alaska Supreme Court, until sentencing statutes were amended, as the Supreme Court never overruled the decision. State v. Seigle, 394 P.3d 627 (Alaska Ct. App. 2017).

Subsection (b) manifests legislature’s concern with deficient sentencing practices throughout Alaska’s entire court system and with the necessity of developing appropriate sentencing criteria. Galaktionoff v. State, 486 P.2d 919 (Alaska 1971).

Limitations on appeal. —

The provision of AS 12.55.120 , limiting the right of sentence appeal of a defendant sentenced to less than two years to serve, does not affect the inherent authority of the judiciary to review sentences nor violate equal protection or due process under the constitution. Rozkydal v. State, 938 P.2d 1091 (Alaska Ct. App. 1997).

Defendant sentenced to less than two years to serve has no right to appeal the sentence, but is entitled to petition the supreme court for review of the sentence under Alaska Rule of Appellate Procedure 215. Rozkydal v. State, 938 P.2d 1091 (Alaska Ct. App. 1997).

Where the defendant received only eight days to serve, he had no right to appeal his sentence, and the appellate court had no jurisdiction to consider his claim that the sentence was excessive, although the defendant was entitled to seek discretionary review from the state Supreme Court. Jacko v. State, 981 P.2d 1075 (Alaska Ct. App. 1999).

Where defendant claimed that his 2-year sentence was excessive, because defendant’s term of imprisonment did not exceed 2 years, the court had no jurisdiction to decide defendant’s claim, and pursuant to Alaska Rule of Appellate Procedure 215(k), defendant’s excessive sentence claim was referred to the supreme court. Pitka v. State, 19 P.3d 604 (Alaska Ct. App. 2001).

Because the propriety of defendant’s composite sentence had to be assessed in light of the totality of his conduct and background, the appellate court concluded that it should not review defendant’s misdemeanor sentence when it had no jurisdiction to review the accompanying felony sentence. Richards v. State, 249 P.3d 303 (Alaska Ct. App. 2011).

Appellate court's authority to review any flaws in defendant's sentence was limited because (1) defendant did not appeal the sentence, (2) double jeopardy limited the State's ability to appeal the sentence, and (3) the court could not revise a sentence the State appealed as too lenient. State v. Seigle, 394 P.3d 627 (Alaska Ct. App. 2017).

Defendant's excessive sentence argument was transferred to the Alaska Supreme Court because, while the Court of Appeals had no jurisdiction to consider the claim as to a sentence imposed pursuant to a plea agreement, defendant could petition the Supreme Court for discretionary sentence review. Lynott v. State, — P.3d — (Alaska Ct. App. Nov. 20, 2019) (memorandum decision).

Defendant’s right to appeal sentence expanded. —

The legislature statutorily recognized the jurisdiction of the supreme court to hear appeals of sentences without qualification. Wharton v. State, 590 P.2d 427 (Alaska 1979).

Sentence appeals the district court. —

Item (2) of subsection (c) does not bar the court of appeals from correcting any and all illegalities in district court sentences of 120 days or less; the provision refers to sentence appeals from the district court, and the reference to unsuspended sentences of more than 120 days was intended to incorporate the limitation placed on district court sentence appeals by AS 12.55.120(d) . Hillman v. Municipality of Anchorage, 941 P.2d 211 (Alaska Ct. App. 1997).

Misdemeanor sentences. —

Defendant may appeal a misdemeanor sentence to the court of appeals if the aggregate unsuspended terms imposed on all counts exceed 120 days. Peters v. State, 943 P.2d 418 (Alaska Ct. App. 1997).

Authority regarding too-lenient sentence. —

When the state appeals a sentence on the ground that it is too lenient, the supreme court has jurisdiction to review the sentence pursuant to subsections (b) and (d), and, if it finds that the sentence is too lenient, it may disapprove the sentence, but it has no authority to increase it. Garrison v. State, 762 P.2d 465 (Alaska Ct. App. 1988).

Standard for determining whether sentence too lenient. —

The standard that applies on appeal in determining whether a sentence is too lenient is the clearly mistaken standard. Garrison v. State, 762 P.2d 465 (Alaska Ct. App. 1988).

Sentence found not too lenient. —

Composite sentence of 12 years for kidnapping, first-degree physical assault, and first-degree sexual assault not too lenient. See Garrison v. State, 762 P.2d 465 (Alaska Ct. App. 1988).

Suspended imposition of sentence.—

Alaska Court of Appeals had jurisdiction to hear defendant's appeal of the denial of a suspended imposition of sentence (SIS) because the Court's jurisdiction to review non-term-of-imprisonment sentence appeals regardless of the length of a term of imprisonment included SIS denials, as the opportunity to set a conviction aside upon successfully completing probation made an SIS a unique disposition in which the Court was more likely to recognize error. Parson v. State, 404 P.3d 227 (Alaska Ct. App. 2017).

Review of condition of probation. —

Probation condition prohibiting defendant from possessing animals was upheld as reasonably related to her rehabilitation, and necessary to protect the public; the condition was not unduly restrictive of her liberty. Allen v. Municipality of Anchorage, 168 P.3d 890 (Alaska Ct. App. 2007).

Imposition of sentence of imprisonment following probation revocation was a “sentence of imprisonment lawfully imposed” within the meaning of the former statutes providing for sentence review. Gilligan v. State, 560 P.2d 17 (Alaska 1977).

And court can review such sentence. —

The court can review that portion of a sentence of imprisonment, originally suspended, that is later imposed when probation has been revoked. Gilligan v. State, 560 P.2d 17 (Alaska 1977).

Review of contempt order. —

Court of appeals had jurisdiction to review a contempt order which arose out of a search warrant which the state obtained to advance a criminal prosecution, where defendant had a related appeal pending in the court, and the imprisonment which arose out of the contempt had a clear effect on his sentence. Martin v. State, 797 P.2d 1209 (Alaska Ct. App. 1990).

Review of sentences imposed by district courts. —

See Galaktionoff v. State, 486 P.2d 919 (Alaska 1971).

Only crime of conviction considered. —

The fair approach in reviewing sentences is to treat the case as presenting only the crime of which the defendant has been convicted. Other offenses, for which guilt has not been established, should not be considered. Galaktionoff v. State, 486 P.2d 919 (Alaska 1971).

That accused was probably guilty of more serious offenses than the one charged is not a proper consideration in the review of sentences. Galaktionoff v. State, 486 P.2d 919 (Alaska 1971).

Rule as to multiple sentences. —

See Robinson v. State, 484 P.2d 686 (Alaska 1971).

Prisoner’s administrative appeal dismissed. —

Prisoner’s sole procedural mechanism for challenging the Department of Corrections’ disciplinary decisions revoking accrued good time credit was an administrative appeal under Alaska common law; prisoner was not entitled to pursue either a petition for writ of habeas corpus or a petition for post-conviction relief. Thus, jurisdiction over such appeal was in the supreme court, not the court of appeals. Higgins v. Briggs, 876 P.2d 539 (Alaska Ct. App. 1994); Morris v. State, 334 P.3d 1244 (Alaska Ct. App. 2014).

Sec. 22.07.030. Review by supreme court.

A party may apply to the supreme court for review of a final decision of the court of appeals in accordance with AS 22.05.010 and rules adopted by the supreme court. Review is in the discretion of the supreme court as set out in AS 22.05.010(d) . In this section, “final decision” means a decision or order, other than a dismissal by consent of all parties, that closes a matter in the court of appeals.

History. (§ 1 ch 12 SLA 1980)

Notes to Decisions

Cited in

Elson v. State, 659 P.2d 1195 (Alaska 1983); Copelin v. State, 659 P.2d 1206 (Alaska 1983); Shinault v. State, 258 P.3d 848 (Alaska Ct. App. 2011).

Sec. 22.07.040. Qualifications of judges.

A judge of the court of appeals shall be a citizen of the United States and of the state, a resident of the state for five years immediately preceding appointment, have been engaged for not less than eight years immediately preceding appointment in the active practice of law, and at the time of appointment be licensed to practice law in the state. For purposes of this section, the active practice of law is the same as defined for the justices of the supreme court in AS 22.05.070 .

History. (§ 1 ch 12 SLA 1980)

Collateral references. —

Validity and construction of constitutional or statutory provision making legal knowledge or experience a condition of eligibility for judicial officer. 71 ALR3d 498.

Sec. 22.07.050. Oath of office.

Each judge of the court of appeals, upon entering office, shall take and subscribe to the oath or affirmation of office required of all officers under the constitution.

History. (§ 1 ch 12 SLA 1980)

Cross references. —

For required oath of office, see art. XII, sec. 5, Constitution of the State of Alaska.

Sec. 22.07.060. Approval or rejection.

Each judge of the court of appeals is subject to approval or rejection as provided in AS 15 (Alaska Election Code). The judicial council shall conduct an evaluation of each judge before the retention election and shall provide information to the public about the judge and may provide a recommendation regarding retention or rejection. The information and any recommendation shall be made public at least 60 days before the election. The judicial council shall also provide the information and any recommendation to the office of the lieutenant governor in time for publication in the election pamphlet as required by AS 15.58.050 . If a majority of those voting on the question rejects the candidacy of a judge, the rejected judge may not for a period of four years thereafter be appointed to fill a vacancy in the supreme court, the court of appeals, the superior court, or the district court of the state.

History. (§ 1 ch 12 SLA 1980)

Sec. 22.07.070. Vacancies.

The governor shall fill a vacancy or appoint a successor to fill an impending vacancy in the office of judge of the court of appeals within 45 days after receiving nominations from the judicial council, by appointing one of two or more persons nominated by the council for each actual or impending vacancy. An appointment to fill an impending vacancy becomes effective upon the actual occurrence of the vacancy.
The office of a judge of the court of appeals becomes vacant 90 days after the election at which the judge is rejected by a majority of those voting on the question or for which the judge fails to file a declaration of candidacy. Upon the occurrence of (1) an actual vacancy; (2) the certification of rejection following an election; or (3) the election following failure of a judge to file a declaration of candidacy, the judicial council shall meet within 90 days and submit to the governor the names of two or more persons qualified for the judicial office; however, the 90-day period may be extended by the judicial council with the concurrence of the supreme court. In the event of an impending vacancy other than by reason of rejection or failure to file a declaration of candidacy, the judicial council may meet at any time within the 90-day period immediately preceding the effective date of the vacancy and submit to the governor the names of two or more persons qualified for the judicial office.

History. (§ 1 ch 12 SLA 1980; am § 2 ch 7 SLA 1985)

Cross references. —

For provisions governing the judicial council, see art. IV, sec. 8, Constitution of the State of Alaska.

Sec. 22.07.075. Impeachment.

A judge of the court of appeals is subject to impeachment by the legislature for malfeasance or misfeasance in the performance of official duties. Impeachment must originate in the senate and must be approved by two-thirds vote of its members. The motion for impeachment must list fully the basis for the proceeding. Trial on impeachment shall be conducted by the house of representatives. A supreme court justice designated by the court shall preside at the trial. Concurrence of two-thirds of the members of the house is required for a judgment of impeachment. The judgment may not extend beyond removal from office, but does not prevent proceedings in a court on the same or related charges.

History. (§ 6 ch 38 SLA 1987)

Cross references. —

For constitutional provision governing impeachment of judges and justices, see art. IV, sec. 12, Constitution of the State of Alaska.

Sec. 22.07.080. Restrictions.

A judge of the court of appeals while holding office may not practice law, or engage in the conduct of any other profession, vocation, or business for profit or compensation, which conduct would interfere with the performance of the judicial duties of the judge, nor may a judge hold office in a political party, or hold any other office or position of profit under the United States, the state, or its political subdivisions. A judge of the court of appeals filing for another elective public office other than delegate to a constitutional convention of this state or the United States forfeits the judicial position.

History. (§ 1 ch 12 SLA 1980)

Collateral references. —

Validity and application of statute regarding prohibition of judge from practicing law. 17 ALR4th 829.

Sec. 22.07.090. Compensation.

Except as provided in (c) of this section, the monthly base salary of a judge of the court of appeals is $13,007. The compensation of a judge may not be diminished during the term of office, unless by a general law applying to all salaried officers of the state.
A salary disbursement may not be issued to a judge of the court of appeals until the judge has filed with the state officer designated to issue salary disbursements an affidavit that no matter referred to the judge for opinion or decision has been uncompleted or undecided by the judge for a period of more than six months.
Beginning July 1, 2006, if the monthly basic salary for Step E, Range 28, of the salary schedule set out in AS 39.27.011 increases, the monthly base salary of the judges of the court of appeals shall increase by the same percentage. The increase takes effect when the salary increase under AS 39.27.011 takes effect and may be retroactive if consistent with the change to AS 39.27.011. The commissioner of administration shall, by regulation, establish the percentage at which the salary is increased and the increased salary amount.

History. (§ 1 ch 12 SLA 1980; am § 3 ch 54 SLA 1990; am §§ 3, 4 ch 19 SLA 1991; am § 3 ch 4 FSSLA 1996; am § 7 ch 175 SLA 2004; am §§ 4, 5 ch 51 SLA 2006)

Cross references. —

For constitutional provision related to judges’ compensation, see art. IV, § 13, Constitution of the State of Alaska.

Administrative Code. —

For adjustments to judicial salaries, see 2 AAC 6.

Sec. 22.07.100. Process.

Process of the court of appeals shall be in the name of the State of Alaska, signed by the clerk of the court or the deputy clerk, dated when issued, sealed with the seal of court, and made returnable according to rule prescribed by the supreme court.

History. (§ 1 ch 12 SLA 1980)

Chapter 10. The Superior Court.

Administrative Code. —

For adjustments to judicial salaries, see 2 AAC 06.

Sec. 22.10.010. Establishment of superior court.

There shall be one superior court for the state. The court shall consist of four districts bounded as follows:

First District: the area within election districts numbered one to six, both inclusive, as those districts are described in art. XIV of the state constitution on March 19, 1959;

Second District: the area within election districts numbered 21 to 23, both inclusive, and those areas of election districts 18 and 20 within the boundaries of the North Slope Borough, as those districts are described in art. XIV of the state constitution on March 19, 1959;

Third District: the area within election districts numbered seven to 15, both inclusive, as those districts are described in art. XIV of the state constitution on March 19, 1959, and the portion of election district 19, as that district is described in art. XIV of the state constitution on March 19, 1959, that is in the Glennallen Venue District on March 1, 2002, described as follows: Beginning at a point on the divide between the watersheds of the Tanana River and the Copper River south of the headwaters of Totschunda Creek; thence southwesterly in a straight line first crossing the Nabesna River to Mt. Allen; thence meandering on the divide mountain peak to mountain peak to a point north of Regal Mountain on the divide separating the Nabesna Glacier from the Chisana Glacier; thence westerly and northwesterly along the divide between the watersheds of the Tanana River and Copper River as it meanders from mountain peak to mountain peak back to a point on the divide south of the headwaters of the Totschunda Creek, the place of the beginning; and

Fourth District: the area within election districts numbered 16, 17, and 24, the areas of election districts numbered 18 and 20 not included in the second district, and the area of election district numbered 19 not included in the third district, as those districts are described in art. XIV of the state constitution on March 19, 1959.

History. (§ 16 ch 50 SLA 1959; am § 1 ch 18 SLA 1974; am § 1 ch 108 SLA 2002)

Notes to Decisions

Applied in

McGee v. State, 614 P.2d 800 (Alaska 1980).

Cited in

United States v. Pleier, 849 F. Supp. 1321 (D. Alaska 1994).

Collateral references. —

20 Am. Jur. 2d, Courts, § 1 et seq.

46 Am. Jur. 2d, Judges, § 1 et seq.

21 C.J.S., Courts, § 1 et seq.

48A C.J.S., Judges, § 1 et seq.

Sec. 22.10.020. Jurisdiction of the superior court.

The superior court is the trial court of general jurisdiction, with original jurisdiction in all civil and criminal matters, including probate and guardianship of minors and incompetents. Except for a petition for a protective order under AS 18.66.100 — 18.66.180 , an action that falls within the concurrent jurisdiction of the superior court and the district court may not be filed in the superior court, except as provided by rules of the supreme court.
The jurisdiction of the superior court extends over the whole of the state.
The superior court and its judges may issue injunctions, writs of review, mandamus, prohibition, habeas corpus, and all other writs necessary or proper to the complete exercise of its jurisdiction. A writ of habeas corpus may be made returnable before any judge of the superior court.
The superior court has jurisdiction in all matters appealed to it from a subordinate court, or administrative agency when appeal is provided by law, and has jurisdiction over petitions for relief in administrative matters under AS 44.62.305 . The hearings on appeal from a final order or judgment of a subordinate court or administrative agency, except an appeal under AS 43.05.242 , shall be on the record unless the superior court, in its discretion, grants a trial de novo, in whole or in part. The hearings on appeal from a final order or judgment under AS 43.05.242 shall be on the record.
An appeal to the superior court is a matter of right, but an appeal from a subordinate court may not be taken by the defendant in a criminal case after a plea of guilty, except on the ground that the sentence was excessive. The state’s right of appeal in criminal cases is limited by the prohibitions against double jeopardy contained in the United States Constitution and the Alaska Constitution.
An appeal to the superior court may be taken on the ground that an unsuspended sentence of imprisonment exceeding 120 days was excessive and the superior court in the exercise of this jurisdiction has the power to reduce the sentence. The state may appeal a sentence on the ground that it is too lenient. When a sentence is appealed on the ground that it is too lenient, the court may not increase the sentence but may express its approval or disapproval of the sentence and its reasons in a written opinion.
In case of an actual controversy in the state, the superior court, upon the filing of an appropriate pleading, may declare the rights and legal relations of an interested party seeking the declaration, whether or not further relief is or could be sought. The declaration has the force and effect of a final judgment or decree and is reviewable as such. Further necessary or proper relief based on a declaratory judgment or decree may be granted, after reasonable notice and hearing, against an adverse party whose rights have been determined by the judgment.
[Renumbered as AS 22.10.025(a) .]
The superior court is the court of original jurisdiction over all causes of action arising under the provisions of AS 18.80. A person who is injured or aggrieved by an act, practice, or policy which is prohibited under AS 18.80 may apply to the superior court for relief. The person aggrieved or injured may maintain an action on behalf of that person or on behalf of a class consisting of all persons who are aggrieved or injured by the act, practice, or policy giving rise to the action. In an action brought under this subsection, the court may grant relief as to any act, practice, or policy of the defendant which is prohibited by AS 18.80, regardless of whether each act, practice, or policy, with respect to which relief is granted, directly affects the plaintiff, so long as a class or members of a class of which the plaintiff is a member are or may be aggrieved or injured by the act, practice, or policy. The court may enjoin any act, practice, or policy which is illegal under AS 18.80 and may order any other relief, including the payment of money, that is appropriate.

History. (§ 17(1), (2) ch 50 SLA 1959; am § 2 ch 117 SLA 1969; am § 1 ch 240 SLA 1970; am § 3 ch 70 SLA 1972; am § 8 ch 12 SLA 1980; am § 78 ch 6 SLA 1984; am § 2 ch 17 SLA 1985; am §§ 3, 4 ch 71 SLA 1993; am § 13 ch 79 SLA 1995; am § 34 ch 64 SLA 1996; am § 4 ch 108 SLA 1996; am § 1 ch 166 SLA 2004)

Revisor’s notes. —

Chapter 50 SLA 1959 implemented the constitution by providing for the establishment of the supreme and superior court system under the constitution. It was designed to accomplish the transfer of judicial functions within the three-year transition period contemplated by the Statehood Act, P.L. 85-508, of July 7, 1958, with provision being made for a more rapid transfer if the President sooner ended the jurisdiction of the territorial courts by executive order.

In November, 1959, eight superior court judges were appointed. On February 20, 1960, the President signed Executive Order No. 10,867, which ended the jurisdiction of the District Court for the Territory of Alaska and proclaimed that the United States District Court for the District of Alaska was prepared to assume the functions imposed upon it. Section 31(1) ch 50 SLA 1959 provided that causes might be commenced, filed, and determined in the state courts in each judicial district from the appointment of one or more judges for the district. Although by the terms of § 31(2) the jurisdiction of the state courts was to be nonexclusive until January 3, 1962, the effect of the executive order was to give them the exclusive jurisdiction which they would in any event receive on that date.

Former subsection (h) was renumbered as AS 22.10.025(a) in 2004. Subsection (j) was added to this section by ch. 108, SLA 2004, and renumbered in 2004 as AS 22.10.025(b) .

Cross references. —

For intervention by the State Commission for Human Rights in an action brought under AS 22.10.020(i) , see AS 18.80.145 ; for appeal of sentences of imprisonment to court of appeals, see AS 22.07.020(b) ; for appeal from district court to superior court in criminal actions, see AS 22.15.240(b) .

Notes to Decisions

Analysis

I. General Consideration
II. Appellate Review
III. Declaratory Judgments
IV. Actions Arising Under

I.General Consideration

Alaska Const., art. IV, § 1 and subsection (a) of this section define general jurisdiction of the superior court. Greater Anchorage Area Borough v. Anchorage, 504 P.2d 1027 (Alaska 1972), overruled, Juneau v. Thibodeau, 595 P.2d 626 (Alaska 1979).

Former subsection (a) (now subsection (d)) does not refer only to agencies created by the legislature.

Argument that the federal patent took the property beyond the state court’s jurisdiction under this section was rejected. After the issuance of a patent, property disputes are resolved in state court. The mere presence of a federal land patent in the chain of title does not give rise to federal jurisdiction. Pursche v. Borough, 371 P.3d 251 (Alaska 2016).

Federal patent. —

Argument that the federal patent took the property beyond the jurisdiction of the state court under this statute was rejected because, after the issuance of a patent, property disputes had to be resolved in state court. The mere presence of a federal land patent in the chain of title did not alone give rise to federal jurisdiction. Pursche v. Borough, 371 P.3d 251 (Alaska 2016).

Jurisdiction over former federal patent land. —

Broad construction of term “administrative agency”. —

The term “administrative agency” in this section should be construed broadly so as to include municipal council, acting as a board of adjustment, since it is, in fact, performing administrative functions. Keiner v. City of Anchorage, 378 P.2d 406 (Alaska 1963); Winegardner v. Greater Anchorage Area Borough, 534 P.2d 541 (Alaska 1975).

Contract claims review board and commissioner of highways, acting for the department of highways, perform an administrative function when they review the claims of the contractor. Therefore, challenge of a board decision is an administrative appeal rather than a new action. State v. Lundgren Pac. Constr. Co., 603 P.2d 889 (Alaska 1979).

A corporation which contracted with the state department of highways and received an adverse decision from the contracting officer after following contractual dispute provisions is not entitled to bring a new suit against the state; rather, the proper procedure is an appeal under the rules of appellate procedure. State v. Lundgren Pac. Constr. Co., 603 P.2d 889 (Alaska 1979).

Judge may remand claims to administrative forum. —

In action against the state by the surety for a contractor for tort damages in which the court granted summary judgment to the state, the court did not err in ruling that the surety could pursue its contract claim for consequential damages in an administrative hearing. State, Dep't of Nat. Res. v. Transamerica Premier Ins. Co., 856 P.2d 766 (Alaska 1993).

Superior court has power to entertain appropriate motions. Kinsman v. State, 496 P.2d 63 (Alaska 1972).

Father properly ordered to demonstrate inability to access assets. —

Trial court had both express authority and inherent equitable authority to order a father who was in arrears on child support payments to either apply for a permanent fund dividend or to demonstrate his ineligibility for the dividend. State v. DeLeon, 103 P.3d 897 (Alaska 2004).

“Appropriate motions”. —

The state’s motion for a more particular statement of allegations of prejudice and the stipulations of the parties were “appropriate motions” and the superior court was within its powers in ordering a time schedule for briefing. Kinsman v. State, 496 P.2d 63 (Alaska 1972).

Rules may not be applied to work an injustice. —

While inherent in its power to entertain “appropriate motions” is the power to police compliance with its orders entered pursuant to those motions, the superior court may not apply its rules in such a way as to work an injustice. Kinsman v. State, 496 P.2d 63 (Alaska 1972).

Dismissal without warning. —

The superior court abused its discretion in ordering a dismissal without first warning the party that his continued failure to comply with the ordered schedule for briefs would lead to dismissal. Kinsman v. State, 496 P.2d 63 (Alaska 1972).

Child custody disputes. —

Superior court had subject matter jurisdiction over the parties’ child custody dispute; the superior court had general subject matter jurisdiction over the case and the superior court had subject matter jurisdiction to hear certain child custody disputes. Barlow v. Thompson, 221 P.3d 998 (Alaska 2009).

Custody disputes between parents and nonparents. —

The superior court does not lack jurisdiction to adjudicate custody disputes between a parent and a nonparent. Such disputes are civil matters over which the superior court has undoubted subject matter jurisdiction. Buness v. Gillen, 781 P.2d 985 (Alaska 1989), overruled in part, Evans v. McTaggart, 88 P.3d 1078 (Alaska 2004).

Petition for sterilization of mental incompetent. —

A superior court, as a court of general jurisdiction, does have as part of its inherent parens patria authority, the power to entertain and act upon a petition seeking an order authorizing the sterilization of a mental incompetent. C.D.M. v. State, 627 P.2d 607 (Alaska 1981).

Jurisdiction to determine local election contest. —

Jurisdiction of the superior court to hear and determine a local election contest is provided by this section. Turkington v. City of Kachemak, 380 P.2d 593 (Alaska 1963).

Jurisdiction over Regulatory Commission of Alaska's authority. —

Superior court had jurisdiction to determine the Regulatory Commission of Alaska's authority to issue its order of interim rates because the order was expressly made a final, appealable order with regard to the line loss docket. Furthermore, the issue was ripe and not moot because the challenge was not to the rates, but to the RCA's authority to address the subject at all. Regulatory Comm'n of Alaska v. Matanuska Elec. Ass'n, 436 P.3d 1015 (Alaska 2019).

Jurisdiction to hear federally-created contract claims. —

State courts, including the superior court, which have jurisdiction over contract actions in general have concurrent jurisdiction with the federal courts to hear federally-created contract claims arising under collective bargaining agreements negotiated pursuant to the Labor Management Relations Act. Trustees ex rel. Alaska Hotel & Rest. Emples. Health & Welfare Fund & Pension Fund v. Hansen, 688 P.2d 587 (Alaska 1984).

Arbitration proceedings. —

Although erroneous, a trial court’s judgment upholding an arbitration panel’s fee award to a law firm was not void for lack of subject matter jurisdiction; the trial court, as a court of general jurisdiction, had jurisdiction to confirm an arbitration award and enter judgment. Leisnoi, Inc. v. Merdes & Merdes, P.C., 307 P.3d 879 (Alaska 2013).

Probate jurisdiction. —

Imposition of a constructive trust in a probate proceeding was not void under Alaska R. Civ. P. 60(b)(4) because probate jurisdiction under AS 22.10.020(a) and AS 13.06.050 (7) broadly encompasses matters relating to decedents’ estates and trusts and AS 13.06.050 (59) and AS 13.06.065 (3) do not preclude a constructive trust. In re Estate of Fields, 219 P.3d 995 (Alaska 2009).

Jurisdiction where prior filing of workers’ compensation claims. —

Superior court did not abuse its discretion when it refused to grant a stay where there was prior filing of a workers’ compensation claim, when the major issue before the court was construction of an insurance contract, a question of law uniquely suited to judicial resolution; the employer waited until six weeks before the trial date, after much discovery had taken place, to request a stay; and no action had been taken in the administrative proceeding. Ehredt v. DeHavilland Aircraft Co., 705 P.2d 446 (Alaska 1985).

Administratively-dissolved corporation was properly assessed corporate income taxes under AS 43.05.010 because the Office of Tax Appeals and the superior court had subject matter jurisdiction, pursuant to Alaska Const. art. IV, § 1, AS 43.05.405 , 43.05.435 , this section and AS 43.05.480 , to determine the taxability of corporations operating in the state; such corporation did not cease to exist where it maintained active bank accounts, entered into contracts, and leased vehicles after it had been dissolved by the State of Washington. Northwest Med. Imaging, Inc. v. Dep't of Revenue, 151 P.3d 434 (Alaska 2006).

Where defendant was first charged in district court and then, for the same offense, in the superior court, it was held that there was no need to establish in Alaska the rule that the matter must be tried in the court first obtaining jurisdiction. Theodore v. State, 407 P.2d 182 (Alaska 1965), cert. denied, 384 U.S. 951, 86 S. Ct. 1570, 16 L. Ed. 2d 547 (U.S. 1966).

Insurance. —

Because an underinsured motorist claim was reasonably likely to mature, the superior court was faced with an actual controversy that was ripe for adjudication, and the superior court had subject matter jurisdiction to decide the insurer's declaratory judgment action on its merits. The superior court accomplished its goals by issuing its declaratory judgment, and did not abuse its discretion in doing so. Hahn v. Geico Choice Ins. Co., 420 P.3d 1160 (Alaska 2018).

Applied in

Benesch v. Miller, 446 P.2d 400 (Alaska 1968); A. R. C. Indus. v. State, 551 P.2d 951 (Alaska 1976); Engebreth v. Moore, 567 P.2d 305 (Alaska 1977); State v. G.L.P., 590 P.2d 65 (Alaska 1979); Granato v. Occhipinti, 602 P.2d 442 (Alaska 1979); Halligan v. State, 624 P.2d 281 (Alaska 1981); Bethel Utils. Corp. v. City of Bethel, 780 P.2d 1018 (Alaska 1989); Anchorage Bd. of Adjustment & Anchorage Sch. Dist. v. LBJ, LLC, 228 P.3d 87 (Alaska 2010);

Quoted in

Graham v. City of Anchorage, 364 P.2d 57 (Alaska 1961); Hart v. National Indem. Co., 422 P.2d 1015 (Alaska 1967); Alyeska Ski Corp. v. Holdsworth, 426 P.2d 1006 (Alaska 1967); City of Juneau v. Cropley, 429 P.2d 21 (Alaska 1967); Jager v. State, 537 P.2d 1100 (Alaska 1975); Bradner v. Hammond, 553 P.2d 1 (Alaska 1976); Matanuska-Susitna Borough v. Hammond, 726 P.2d 166 (Alaska 1986); Ketchikan Gen. Hosp. v. Dunnagan, 757 P.2d 57 (Alaska 1988); Gold Dust Mines, Inc. v. Little Squaw Gold Mining Co., 299 P.3d 148 (Alaska 2012); Calais Co. v. Ivy, 303 P.3d 410 (Alaska 2013); Moore v. Olson, 351 P.3d 1066 (Alaska 2015); Seater v. Estate of Seater, 461 P.3d 421 (Alaska 2020); Young v. State, 502 P.3d 964 (Alaska 2022).

Stated in

McDaniel v. Cory, 631 P.2d 82 (Alaska 1981); Burrell v. Burrell, 696 P.2d 157 (Alaska 1984); Laverty v. State R.R. Corp., 13 P.3d 725 (Alaska 2000).

Cited in

In re G.M.B., 483 P.2d 1006 (Alaska 1971); Gilbert v. State, 526 P.2d 1131 (Alaska 1974); State v. Lancaster, 550 P.2d 1257 (Alaska 1976); C.Y., Inc. v. Brown, 574 P.2d 1274 (Alaska 1978); Buckalew v. Holloway, 604 P.2d 240 (Alaska 1979); Ketzler v. State, 634 P.2d 561 (Alaska Ct. App. 1981); Wilson v. State, 680 P.2d 1173 (Alaska Ct. App. 1984); City of Kenai v. State, Pub. Utils. Comm'n, 736 P.2d 760 (Alaska 1987); Foster v. State, 752 P.2d 459 (Alaska 1988); Perito v. Perito, 756 P.2d 895 (Alaska 1988); Murphy v. City of Wrangell, 763 P.2d 229 (Alaska 1988); Estes v. Alaska Ins. Guar. Ass'n, 774 P.2d 1315 (Alaska 1989); Feichtinger v. State, 779 P.2d 344 (Alaska Ct. App. 1989); Caucus Distribs., Inc. v. DOC & Econ. Dev., 793 P.2d 1048 (Alaska 1990); Native Village of Stevens v. Gorsuch, 808 P.2d 261 (Alaska 1991); Hester v. State, Pub. Employees' Ret. Bd., 817 P.2d 472 (Alaska 1991); Leslie Cutting, Inc. v. Bateman, 833 P.2d 691 (Alaska 1992); Trustees ex rel. Alaska v. Gorsuch, 835 P.2d 1239 (Alaska 1992); North Star Alaska Hous. Corp. v. Fairbanks N. Star Borough Bd. of Equalization, 844 P.2d 1109 (Alaska 1993); Brandon v. Department of Cors., 865 P.2d 87 (Alaska 1993); Perry v. Newkirk, 871 P.2d 1150 (Alaska 1994); In re Estate of Adkins, 874 P.2d 271 (Alaska 1994); Norcon, Inc. v. Alaska Workers' Compensation Bd., 880 P.2d 1051 (Alaska 1994); Kodiak Seafood Processors Ass'n v. State, 900 P.2d 1191 (Alaska 1995); Municipality of Anchorage v. Coffey, 893 P.2d 722 (Alaska 1995); Dep't of Revenue v. Andrade, 23 P.3d 58 (Alaska 2001); Barnica v. Kenai Peninsula Borough Sch. Dist., 46 P.3d 974 (Alaska 2002); Ruckle v. Anchorage Sch. Dist., 85 P.3d 1030 (Alaska 2004); Miller v. Safeway, Inc., 102 P.3d 282 (Alaska 2004); Harvey v. Antrim, 160 P.3d 673 (Alaska Ct. App. 2007); Alaska Pub. Interest Research Group v. State, 167 P.3d 27 (Alaska 2007); Miller v. Safeway, Inc., 170 P.3d 655 (Alaska 2007); Amerada Hess Pipeline Corp. v. Regulatory Comm'n of Alaska, 176 P.3d 667 (Alaska 2008); Holden v. State, 190 P.3d 725 (Alaska Ct. App. 2008); Sea Hawk Seafoods, Inc. v. State, 215 P.3d 333 (Alaska 2009); Fletcher v. State, 258 P.3d 874 (Alaska Ct. App. 2011); Larson v. State, 254 P.3d 1073 (Alaska 2011); Williams v. Ketchikan Gateway Borough, 295 P.3d 374 (Alaska 2013); Barry H. v. State, 404 P.3d 1231 (Alaska 2017); McMullen v. State, 426 P.3d 1168 (Alaska Ct. App. 2018); North Slope Borough v. State, 484 P.3d 106 (Alaska 2021); Sagoonick v. State, 503 P.3d 777 (Alaska 2022).

II.Appellate Review

This section and AS 22.15.240 provide basic and alternative methods of reviewing which were intended to simplify and expedite the handling of appeals. Lee v. State, 374 P.2d 868 (Alaska 1962).

“Writs of review” as is used in this section should be considered to be synonymous with the writ designated at one time as the writ of certiorari. State v. Keep, 409 P.2d 321 (Alaska 1965).

State may test sufficiency of indictment or information. —

Subsection (a) of this section permits the state to appeal in a criminal case to test the sufficiency of an indictment or information decided prior to the 1980 amendment. State v. Parks, 437 P.2d 642 (Alaska 1968).

Proper standard and scope of review. —

In recent cases, the supreme court has set forth the proper standard and scope of review to be applied by it in reviewing superior court sentences appealed to it pursuant to AS 12.55.120 . It is the intention of the legislature that the superior court apply an identical standard in reviewing sentences appealed to it pursuant to AS 22.15.240(b) . Galaktionoff v. State, 486 P.2d 919 (Alaska 1971).

In the exercise of its sentence appeal jurisdiction, the superior court’s scope of review is to be identical with that exercised by the supreme court under State v. Chaney, 477 P.2d 441 (Alaska 1970). The application of this standard to the superior court means that when a sentence is appealed to the superior court, the reviewing judge is to make his own examination of the record and he must modify the sentence if he is convinced that the district court was clearly mistaken in imposing the sanction it did. Galaktionoff v. State, 486 P.2d 919 (Alaska 1971).

The supreme court must review appeals involving questions of law from the superior court and the state commission for human rights under the same de novo standard of review, in order to ensure uniformity of decision. State Comm'n for Human Rights ex rel. Beamer v. Dept. of Admin., 796 P.2d 458 (Alaska 1990).

Administrative action review. —

The superior court is the court generally empowered to review administrative actions. Bishop v. Municipality of Anchorage, 685 P.2d 103 (Alaska Ct. App. 1984).

Doctor had the right to a trial de novo on the issue of a condition precedent because the administrative proceedings did not afford her due process on this outcome-determinative issue, and the administrative proceeding lacked important hallmarks of procedural due process, such as notice and an opportunity to be heard; due process entitled the doctor to a trial de novo on this issue. Yost v. State, 234 P.3d 1264 (Alaska 2010).

Application of generalized appeal procedures to Oil and Gas Conservation Commission hearings. —

AS 31.05.080 was impliedly repealed by the enactment of subsection (d) of this section, regarding appeals to the superior court from decisions of the Alaska Oil and Gas Conservation Commission, thus the generalized appeal procedures apply to the commission as well. Allen v. Alaska Oil & Gas Conservation Comm'n, 147 P.3d 664 (Alaska 2006).

DOC administrative decisions. —

Subsection (d) did not confer jurisdiction on the superior court to hear a prisoner’s appeal from a Department of Correction’s decision to transfer him to an out-of-state prison. Brandon v. State, Dep't of Cors., 938 P.2d 1029 (Alaska 1997).

DOC classification hearing. —

A Department of Correction’s classification hearing on the transfer of a prisoner to an out-of-state prison involved the prisoner’s fundamental constitutional right to rehabilitation and was an adjudicative proceeding producing a record adequate for review. Brandon v. State, Dep't of Cors., 938 P.2d 1029 (Alaska 1997).

Remedy for parole hearing denial. —

Action in superior court for an injunction or declaratory relief is the appropriate procedure to obtain a remedy for a convict claiming that he was unconstitutionally or illegally denied a parole hearing. Bishop v. Municipality of Anchorage, 685 P.2d 103 (Alaska Ct. App. 1984).

Finality. —

Where a court reverses its prior ruling and grants judgment of acquittal and removes a count from the consideration of the jury, the action is final and cannot be appealed by the state. Selman v. State, 406 P.2d 181 (Alaska 1965), overruled, Whitton v. State, 479 P.2d 302 (Alaska 1970).

Where a court weighs the evidence in the light of what it has finally determined to be the governing law and grants acquittal, the action of the court is final as far as the state is concerned, and it has no right of appeal. Selman v. State, 406 P.2d 181 (Alaska 1965), overruled, Whitton v. State, 479 P.2d 302 (Alaska 1970).

Appeal is disposed of on record alone where record sufficient. —

Where the record on appeal is sufficient for the superior court to determine the issues presented, it is incumbent upon the court to dispose of the appeal on the record alone. Lee v. State, 374 P.2d 868 (Alaska 1962); Kinsman v. State, 496 P.2d 63 (Alaska 1972).

But court can first permit argument of counsel. —

The superior court can, on a proper showing, based on an appropriate motion, permit counsel for the appellant to be heard in argument before the appeal is disposed of on the record. Lee v. State, 374 P.2d 868 (Alaska 1962).

Trial de novo. —

Superior court did not err by denying a mine owner's motion for a trial de novo because the owner did not established that the owner was denied the opportunity to present any material evidence or otherwise deprived of its right to a fair hearing as a borough board of equalization had before it the assessor's report, the owner's detailed appraisal report, and hours of testimony from both sides. Furthermore, the owner, though represented by counsel, did not object to the borough assessor's reduced valuation of the owner's mine. Fairbanks Gold Mining, Inc. v. Fairbanks N. Star Borough Assessor, 488 P.3d 959 (Alaska 2021).

Trial de novo where agency record insufficient. —

The procedure allowing discretion of the superior court in the granting of trial de novo simplifies and expedites the handling of appeals, and at the same time, it affords sufficient flexibility so that if the agency record is not sufficient to determine the issue, on appeal, or if the record discloses that justice requires evidence to be taken de novo, the superior court has the discretion to do what is necessary by granting a new trial or hearing, either in whole or in part. Keiner v. City of Anchorage, 378 P.2d 406 (Alaska 1963).

Where the record proves to be insufficient to permit the court to dispose of the issues presented, the court has the discretion to grant a new trial in whole or in part. Lee v. State, 374 P.2d 868 (Alaska 1962); Kinsman v. State, 496 P.2d 63 (Alaska 1972).

In an administrative appeal with an augmented record, supreme court will continue its independent scrutiny with regard to new documentary evidence; however, it will accept the superior court’s findings of fact based on live testimony unless such findings appear clearly erroneous. Fairbanks N. Star Borough Sch. Dist. v. Bowers Office Prods., 851 P.2d 56 (Alaska 1992), amended, — P.2d — (Alaska 1993).

Section does not supersede AS 14.20.205 . —

This section which provides that “All hearings on appeal from any final order or judgment of a subordinate court or administrative agency shall be on the record unless the superior court, in its discretion, shall grant a trial de novo, in whole or in part,” does not supersede AS 14.20.205 (now repealed), which expressly mandates de novo reviews for tenured teachers. Matanuska-Susitna Borough v. Lum, 538 P.2d 994 (Alaska 1975).

Since AS 14.20.205 (now repealed) and this section are not irreconcilably conflicting, but can be intelligently read as conterminous expressions of a general rule and an exception to it, nothing in the edicts of statutory construction requires the finding that AS 14.20.205 (now repealed) has been rendered inoperative by the reenactment of this section. Matanuska-Susitna Borough v. Lum, 538 P.2d 994 (Alaska 1975).

In reenacting this section in 1970, the legislature has not unequivocally expressed any intent to deny tenured teachers de novo review nor was the reenactment part of a comprehensive revision. Matanuska-Susitna Borough v. Lum, 538 P.2d 994 (Alaska 1975).

On its face, AS 14.20.205 (now repealed), concerning tenured teachers, bears no relation to the general provisions governing judicial appeals, which is covered by this title. Matanuska-Susitna Borough v. Lum, 538 P.2d 994 (Alaska 1975).

Only crime of conviction considered. —

The superior court judge’s estimation of crimes committed but not charged cannot provide support for the affirmance of the sentence. Galaktionoff v. State, 486 P.2d 919 (Alaska 1971).

Absent conviction, indictment is absolutely no evidence of guilty conduct. Galaktionoff v. State, 486 P.2d 919 (Alaska 1971).

Undue consideration given district judge’s opportunity to observe defendant. —

The superior court judge gave undue influence and consideration to the district judge’s opportunity to observe the defendant, and, in so doing, the reviewing judge failed to make the requisite full and independent examination of the record with a view to determining if the district judge was clearly mistaken in imposing the sanction he did. Galaktionoff v. State, 486 P.2d 919 (Alaska 1971).

Superior court had no jurisdiction over an appeal seeking review of a department of corrections’ determination to purchase prisoner commissary items from a local store that charged a five percent handling fee for preparing individual inmate orders. Hertz v. Carothers, 784 P.2d 659 (Alaska 1990).

Department of Corrections calculations of sentences are not adjudicative proceedings producing records reviewable on an administrative appeal. The superior court did not have jurisdiction to review the calculation of the prisoner’s sentence on appeal. Owen v. Matsumoto, 859 P.2d 1308 (Alaska 1993).

No jurisdiction over decision to investigate complaint. —

No statute or regulation provides for the appeal of a decision to investigate a complaint, and like many other agency actions, it is not a final decision of an administrative agency; because no such appeal right is provided by law, an appellate court does not have jurisdiction to consider such a claim. Eberhart v. Alaska Pub. Offices Comm'n, 426 P.3d 890 (Alaska 2018).

No right to jury trial in administrative appeal.

Appeal from the Department of Labor and Workforce Development's determination is authorized by AS 23.20.445 , which permits superior court review of the decision of the Department's appeal tribunal; there was no right to a jury trial in such an appeal because administrative appeals arose under statute, plus the legislature set forth procedures for such appeals in AS 22.10.020(d) , and they do not provide for a jury trial. Levi v. State, 433 P.3d 1137 (Alaska 2018).

III.Declaratory Judgments

Historical antecedents of Alaska’s Declaratory Judgment Act. —

See Jefferson v. Asplund, 458 P.2d 995 (Alaska 1969).

Alaska statute was modeled after federal Declaratory Judgment Act, 28 U.S.C. §§ 2201, 2202. Alaska Airlines v. Red Dodge Aviation, 475 P.2d 229 (Alaska 1970).

Hence, federal precedent is pertinent. Alaska Airlines v. Red Dodge Aviation, 475 P.2d 229 (Alaska 1970).

Alaska’s statute regulating declaratory judgments is for all intents and purposes identical to the federal Declaratory Judgment Act (28 U.S.C. §§ 2201, 2202); the Alaska Supreme Court will consider federal precedent pertinent in evaluating the state statute. National Chiropractic Mut. Ins. Co. v. Doe, 23 F. Supp. 2d 1109 (D. Alaska 1998).

Jurisprudence of declaratory judgments. —

See Jefferson v. Asplund, 458 P.2d 995 (Alaska 1969).

Declaratory relief, like other relief, is governed by Alaska Civil Procedure Rule 54(a), regulating an appeal from a judgment adjudicating less than all of the claims for relief in an action. Alaska Airlines v. Red Dodge Aviation, 475 P.2d 229 (Alaska 1970).

Effect of Alaska Civil Procedure Rule 54(b) not changed. —

The statutory language giving a declaratory judgment the force of a final judgment and making it “reviewable as such” does not change the effect of Alaska Civil Procedure Rule 54(b) on partial summary judgment. The statutory language means no more than that with regard to finality and review, declaratory judgments are like other judgments. Alaska Airlines v. Red Dodge Aviation, 475 P.2d 229 (Alaska 1970).

Intent of Alaska Civil Procedure Rule 57(a), which is the Alaska counterpart to F.R.C.P. 57, is to establish that the general rule of pleading and civil procedure apply to actions for declaratory relief. Alaska Airlines v. Red Dodge Aviation, 475 P.2d 229 (Alaska 1970).

Declaratory Judgment Act does not provide plaintiff with separate jurisdictional basis. The superior court will only hear an action brought under the act where the case is otherwise properly before the court. Standard Alaska Prod. Co. v. State, Dep't of Revenue, 773 P.2d 201 (Alaska 1989).

Scope of declaratory action. —

It may be stated that the declaratory action is limited to no particular class of cases, and is confined to no special type of litigation. Its scope is pervasive. If a “case or controversy” is presented, and the requisite elements of jurisdiction are present, then in the absence of statutory prohibition, the court is competent to provide declaratory relief. Whether or not such relief will in fact be granted is a matter of judicial discretion. But the exercise of this discretion is to be in accordance with established principles, and is to be liberally exercised in achieving the Act’s remedial objectives. Jefferson v. Asplund, 458 P.2d 995 (Alaska 1969).

Trial court erred in not considering an automobile dealership’s claim for declaratory relief under this section; parties’ agreement as to changes in automobile dealership’s setup was unclear. Anchorage Chrysler Ctr., Inc. v. Daimlerchrysler Corp., 129 P.3d 905 (Alaska 2006).

Not all issues raised in applications for declaratory relief are justiciable. Greater Anchorage Area Borough v. Anchorage, 504 P.2d 1027 (Alaska 1972), overruled, Juneau v. Thibodeau, 595 P.2d 626 (Alaska 1979).

Actual controversy must be presented. —

In order for questions in an application for declaratory judgment to be appropriate for adjudication, they must present an actual controversy. Greater Anchorage Area Borough v. Anchorage, 504 P.2d 1027 (Alaska 1972), overruled, Juneau v. Thibodeau, 595 P.2d 626 (Alaska 1979).

It was not an abuse of discretion to dismiss a complaint for lack of ripeness where same-sex couple failed to demonstrate actual or impending injury caused by the denial of benefits that were available only to married people because no actual controversy ripe for adjudication had been pleaded. Brause v. Dep't of Health & Soc. Servs., 21 P.3d 357 (Alaska 2001).

Actual controversy requirement of subsection (g) was not satisfied as the case was not ripe, and appellees did not have a strong claim of need for a pre-enforcement decision on the constitutionality of the amended statute, AS 11.71.060 , because their current practices were and would remain illegal and expose them to a risk of criminal prosecution, regardless of any ruling the supreme court might make, under federal law. State v. ACLU of Alaska, 204 P.3d 364 (Alaska 2009).

Claims for declaratory judgment in the application of the public trust doctrine to environmental issues, absent the prospect of any concrete relief, did not present an actual controversy that was appropriate for determination. Kanuk v. State, Dep't of Natural Res., 335 P.3d 1088 (Alaska 2014).

Trial court did not err in denying a nonprofit corporation’s motion for declaratory judgment because no actual controversy existed; the corporation failed to allege a trespass claim againstthe city that was ripe for adjudication because it did not make any factual allegations that could be reasonably construed to mean that a trespass had occurred or was even likely. Alaska Commer. Fishermen's Mem'l in Juneau v. City & Borough of Juneau, 357 P.3d 1172 (Alaska 2015).

Trial court did not abuse its discretion by denying the mother's request for declaratory relief because the father demonstrated there was no actual controversy by agreeing that the merits of the motion for modification of custody should be addressed by the court and not in a mediation. Edith A. v. Jonah A., 433 P.3d 1157 (Alaska 2018).

Superior court did not err by deciding that a prisoner's claim for declaratory relief under the Religious Land Use and Institutionalized Persons Act was moot because judicial review to determine the constitutionality of an earlier mail policy, which was existence for less than three years and had been replaced, would be a purely academic exercise; the mail policy to which the prisoner objected was changed to an individualized-review policy that he found unobjectionable. Leahy v. Conant, 436 P.3d 1039 (Alaska 2019).

Superior court did not err when it denied the condominium owners' motion to dismiss and proceeded to the merits of a condominium association's claim for declaratory relief because the owners were threatening action even after the onset of litigation. Black v. Whitestone Estates Condo. Homeowners' Ass'n, 446 P.3d 786 (Alaska 2019).

“Controversy” must be one that is appropriate for judicial determination. A justiciable controversy is thus distinguished from a difference or dispute of a hypothetical or abstract character; from one that is academic or moot. The controversy must be definite and concrete, touching the legal relations of parties having adverse legal interests. It must be a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts; and, as it is not essential to the exercise of the judicial power that an injunction be sought, allegations that irreparable injury is threatened are not required. Jefferson v. Asplund, 458 P.2d 995 (Alaska 1969).

Difference between abstract question and “controversy” contemplated by the Declaratory Judgment Act is necessarily one of degree, and it would be difficult, if it would be possible, to fashion a precise test for determining in every case whether there is such a controversy. Basically, the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment. Jefferson v. Asplund, 458 P.2d 995 (Alaska 1969).

Subsection (g) sets forth specific requirements for jurisdiction in declaratory judgment action, particularly the “actual controversy” criterion. Greater Anchorage Area Borough v. Anchorage, 504 P.2d 1027 (Alaska 1972), overruled, Juneau v. Thibodeau, 595 P.2d 626 (Alaska 1979).

And it does not impose 30-day limitation on actions brought under it. Moore v. State, 553 P.2d 8 (Alaska 1976).

Two principal criteria guiding policy in favor of rendering declaratory judgments are (1) when the judgment will serve a useful purpose in clarifying and settling the legal relations in issue and (2) when it will terminate and afford relief from the uncertainty, insecurity, and controversy giving rise to the proceeding. It follows that when neither of these results can be accomplished, the court should decline to render the declaration prayed. Jefferson v. Asplund, 458 P.2d 995 (Alaska 1969).

Declaratory relief may be withheld when the grant of such relief would not terminate the controversy or the uncertainty which gave rise to the declaratory proceeding. Jefferson v. Asplund, 458 P.2d 995 (Alaska 1969).

Declaratory relief will be withheld when declarations are sought concerning hypothetical or advisory questions or moot questions. Jefferson v. Asplund, 458 P.2d 995 (Alaska 1969).

Existence of another adequate remedy does not preclude declaratory relief where appropriate. Jefferson v. Asplund, 458 P.2d 995 (Alaska 1969).

Coercive remedies more effective. —

Declaratory action under Alaska Rule of Civil Procedure 57(a) and subsection (g) of this section was properly dismissed because by the time a former assemblyman had brought his defamation action, the dispute at issue had already “ripened” into an alleged actual violation of law, and the superior court therefore did not abuse its discretion in determining that the coercive remedies available to the assemblyman would be more effective, or “final and conclusive.” Lowell v. Hayes, 117 P.3d 745 (Alaska 2005).

Judgment, not dismissal, required where party not entitled to favorable declaration on merits. —

Where, upon the merits of the controversy, the plaintiff is not entitled to a favorable declaration, the court should render a judgment embodying such determination and should not merely dismiss the action. American Bldg. & Loan Ass'n v. State, 376 P.2d 370 (Alaska 1962).

Declaratory relief may be sought to determine validity and construction of statutes and public acts. Jefferson v. Asplund, 458 P.2d 995 (Alaska 1969).

Landlords had standing to challenge AS 18.80.240 and Anchorage, Alaska Municipal Code § 5.20.020, which barred them from refusing to rent to unmarried couples; trial court properly found that landlords had standing, although no sanctions had been imposed on them under either law, since they would have to change their rental practices or expose themselves to civil and criminal liability. Thomas v. Anchorage Equal Rights Comm'n, 102 P.3d 937 (Alaska 2004), cert. denied, 544 U.S. 1060, 125 S. Ct. 2517, 161 L. Ed. 2d 1110 (U.S. 2005).

Requirements of pleadings in actions seeking declaratory relief do not differ from those standards of pleadings governing other types of civil actions. Jefferson v. Asplund, 458 P.2d 995 (Alaska 1969).

All that is required of complaint seeking declaratory relief is a simple statement of facts demonstrating that the superior court has jurisdiction and that an actual justiciable case or controversy is presented. Jefferson v. Asplund, 458 P.2d 995 (Alaska 1969).

Test of sufficiency of complaint in a declaratory judgment proceeding is not whether the complaint shows that the plaintiff will succeed in getting a declaration of rights in accordance with his theory and contention but whether he is entitled to a declaration of rights at all. Jefferson v. Asplund, 458 P.2d 995 (Alaska 1969).

Discretion to grant or refuse declaratory relief should be liberally exercised to effectuate the purposes of the Declaratory Judgment Act and thereby afford relief from the uncertainty and insecurity with respect to rights, status and other legal relations. Jefferson v. Asplund, 458 P.2d 995 (Alaska 1969).

Judicial discretion was intended to play a significant role in the administration of Alaska’s Declaratory Judgment Act. Jefferson v. Asplund, 458 P.2d 995 (Alaska 1969).

Declaratory action as means of procedural fencing. —

Courts should guard against the use of the declaratory judgment action as a means of procedural fencing. Jefferson v. Asplund, 458 P.2d 995 (Alaska 1969).

Doctrine of exhaustion of administrative remedies did not apply to state’s declaratory judgment claim where state was not challenging an administrative decision under a borough ordinance, but instead claimed that the ordinance exceeded the Borough’s statutory authority rendering the whole ordinance invalid. Department of Transp. & Pub. Facilities v. Fairbanks North Star Borough, 936 P.2d 1259 (Alaska 1997).

Inspection of documents relating to lawsuit. —

Where a newspaper, which sought a declaratory judgment that lawsuit settlement documents which ended litigation in a federal court were open to public inspection under state law, was not a party to the federal litigation and the federal court had not addressed the confidentiality issue, the superior court did not abuse its discretion in exercising its jurisdiction to determine that the newspaper had the right under state law to inspect the settlement documents. Anchorage Sch. Dist. v. Anchorage Daily News, 779 P.2d 1191 (Alaska 1989).

Proper exercise of power. —

Superior court’s grant of summary judgment and a permanent injunction against prosecution of wage assignment under AS 23.05.220 by the Department of Labor was a proper exercise of its power to render a declaratory judgment under subsection (b) (now (g)) of this section, where the jurisdiction of the department was being questioned on persuasive grounds, thus bringing the case within exception to “exhaustion of remedies” requirement. State, Dep't of Labor, Wage & Hour Div. v. Univ. of Alaska, 664 P.2d 575 (Alaska 1983).

Request for physical examination as clemency issue ripe for decision. —

Prisoner’s claim that the Alaska Department of Corrections violated her procedural due process rights by denying her request to be examined by a physician of her choice in order to gather evidence to support her executive clemency application was ripe for decision because it was at least theoretically possible that a prisoner could suffer from an exceptional health condition warranting executive clemency before reaching parole eligibility. Lewis v. Dep't of Corr., 139 P.3d 1266 (Alaska 2006).

Declaratory request rejected. —

Trial court properly rejected a request for a declaratory judgment seeking a declaration that plaintiff owned 95 percent of a corporation that defendant attorney sought to have sold for his client’s benefit in a collection suit, where defendant claimed no interest or expectancy in the corporation, and indeed disclaimed any such interest. Keen v. Ruddy, 784 P.2d 653 (Alaska 1989).

That part of relief granted was declaratory judgment has no effect on ripeness for appeal of the partial summary judgment. Alaska Airlines v. Red Dodge Aviation, 475 P.2d 229 (Alaska 1970).

Appeal containing insufficient record. —

A sound disposition of an appeal in a declaratory judgment action containing an insufficient record is to remand the case for further pleading and evidence. Greater Anchorage Area Borough v. Anchorage, 504 P.2d 1027 (Alaska 1972), overruled, Juneau v. Thibodeau, 595 P.2d 626 (Alaska 1979).

Review of questions arising out of arbitration award. —

There is nothing in Alaska’s declaratory judgment act which prohibits its use to determine questions arising out of arbitration. IBEW, Local Union 1547 v. City of Ketchikan, 805 P.2d 340 (Alaska 1991).

When asked to clarify an ambiguous arbitration award, the court should simply determine whether the award is, in fact, ambiguous or unclear. In cases where real ambiguity exists, the court should remand those parts of the award that are ambiguous to the arbitrator for clarification. IBEW, Local Union 1547 v. City of Ketchikan, 805 P.2d 340 (Alaska 1991).

IV.Actions Arising Under

National Labor Relations Act does not preempt AS 18.80. Bald v. RCA Alascom, 569 P.2d 1328 (Alaska 1977).

And does not deprive state courts of jurisdiction in employment discrimination case. —

The National Labor Relations Act, under the principle of federal preemption, does not deprive the courts of this state of jurisdiction to hear cases of alleged employment discrimination by either employers or unions on the basis of religion. Bald v. RCA Alascom, 569 P.2d 1328 (Alaska 1977).

AS 18.80.250 creates private right of action to redress racial discrimination in credit transactions. Ratcliff v. Security Nat'l Bank, 670 P.2d 1139 (Alaska 1983).

Right to bring action against state. —

This section and AS 18.80.255 (1), taken together, constitute express legislative consent for persons to bring particular civil rights actions against the state. Johnson v. Alaska State Dep't of Fish & Game, 836 P.2d 896 (Alaska 1991).

Award of damages authorized for violations of AS 18.80. —

The broad language of subsection (c) (now (i)) indicates a legislative intent to authorize an award of compensatory and punitive damages for violations of AS 18.80, in addition to the equitable remedies such as enjoining illegal employment activities and ordering back pay as a form of restitution. Loomis Elec. Protection v. Schaefer, 549 P.2d 1341 (Alaska 1976).

No limitation to equitable relief only is found in the language of subsection (c) (now (i)). After authorizing the superior court to enjoin illegal activities, through the application of its traditional powers of equity, the legislature of Alaska went on to authorize the court to order any other relief, including the payment of money. Loomis Elec. Protection v. Schaefer, 549 P.2d 1341 (Alaska 1976).

Damages for mental anguish are available in Alaska as a form of compensatory damages under this section. Johnson v. Alaska State Dep't of Fish & Game, 836 P.2d 896 (Alaska 1991).

Compensatory damages for mental anguish caused by discrimination must be limited to actual damages. Such damages are not to be presumed. Johnson v. Alaska State Dep't of Fish & Game, 836 P.2d 896 (Alaska 1991).

The amount of mental anguish damages assessed must specifically compensate only the injury proved. Johnson v. Alaska State Dep't of Fish & Game, 836 P.2d 896 (Alaska 1991).

The general authorization for damages awards in subsection (c) (now (i)) is not sufficient to support an award of punitive damages against the state. Johnson v. Alaska State Dep't of Fish & Game, 836 P.2d 896 (Alaska 1991).

Punitive damages cannot be imposed for a supervisor’s acts outside the scope of his employment. Veco, Inc. v. Rosebrock, 970 P.2d 906 (Alaska 1999).

Punitive damages are authorized under this section and AS 18.80.220 . Veco, Inc. v. Rosebrock, 970 P.2d 906 (Alaska 1999).

An employer cannot be liable for punitive damages based solely on vicarious liability for its employees’ actions outside the scope of their employment. Veco, Inc. v. Rosebrock, 970 P.2d 906 (Alaska 1999).

Liability for supervisor acting outside scope of employment. —

An employer can be liable for acts of a supervisor which create a hostile work environment even though the supervisor is acting outside the scope of his employment. Veco, Inc. v. Rosebrock, 970 P.2d 906 (Alaska 1999).

Intangible injury from sexual harassment. —

The exclusive remedy provisions of workers’ compensation law does not bar intangible injury claims resulting from sexual harassment. Veco, Inc. v. Rosebrock, 970 P.2d 906 (Alaska 1999).

Executive director of State Commission for Human Rights may not initiate class action. —

Although the State Commission for Human Rights enjoys a limited right under AS 18.80.145(a) to intervene in a private class action brought pursuant to subsection (c) (now (i)) of this section, the executive director does not have statutory authority to initiate a class action in the superior court. Hotel, Motel, Rest., Constr. Camp Emples. & Bartenders v. Thomas, 551 P.2d 942 (Alaska 1976).

Collateral references. —

Maintainability in state court of class action for relief against air or water pollution. 47 ALR3d 769.

Jurisdiction of court to permit sterilization of mentally defective person in absence of specific statutory authority. 74 ALR3d 1210.

Sec. 22.10.025. Powers of superior court in action for divorce, separation, or child support.

The superior court, in an action for divorce, separation, or child support affecting inalienable stock in a corporation organized under 43 U.S.C. 1601 et seq. (Alaska Native Claims Settlement Act), may order the stock transferred to the spouse, a child, or a guardian or custodian for a child, but may not order it sold on the open market or transferred to other persons.
The superior court, in an action for divorce, separation, or child support, may issue orders to aid in the enforcement of child support, including orders requiring an individual who owes support under an order of support to
1. make payments according to an approved payment plan;
2. participate in appropriate work activities if the individual is not incapacitated; or
3. complete and submit an application for a permanent fund dividend under AS 43.23.015 or provide proof to the agency or the court that the individual is not eligible for a dividend in a given year.

History. (§ 78 ch 6 SLA 1984; § 11 ch 108 SLA 2004; am § 37 ch 56 SLA 2005)

Revisor’s notes. —

Subsection (a) was formerly AS 22.10.020(h) ; renumbered in 2004. Subsection (b) was enacted as AS 22.10.020(j) and renumbered in 2004.

Notes to Decisions

Subsection (a) [formerly AS 22.10.020(h) ] was enacted to parallel Alaska Native Claims Settlement Act, 43 U.S.C § 1601 et seq. Calista Corp. v. De Young, 562 P.2d 338 (Alaska 1977).

Transfer of native corporation stock need not be total. Calista Corp. v. De Young, 562 P.2d 338 (Alaska 1977).

Type of action referred to in subsection (a) [formerly AS 22.10.020(h) ] can be later action which is a consequence of the earlier adjudication. Calista Corp. v. De Young, 562 P.2d 338 (Alaska 1977).

Sec. 22.10.030. Where actions are to be brought.

Venue for all actions shall be set under rules adopted by the supreme court.

History. (§ 17(2) ch 50 SLA 1959; am § 1 ch 126 SLA 1971; am § 1 ch 66 SLA 1972; am § 1 ch 137 SLA 1984; am § 1 ch 9 SLA 1985)

Cross references. —

For court rule relating to venue in civil actions, see Rule 3, Alaska Rules of Civil Procedure; for court rule relating to venue in criminal cases, see Rule 18, Alaska Rules of Criminal Procedure. For judicial district in which action may be brought to compel compliance with surface coal mining laws, see AS 27.21.950(d) ; for commencement of civil actions by persons adversely affected by failure to comply with Alaska Surface Coal Mining Control and Reclamation Act, see AS 27.21.950(d) .

Collateral references. —

Place of holding sessions of trial court as affecting validity of its proceedings. 18 A.L.R.3d 572.

Sec. 22.10.040. Change of venue.

The superior court in which the action is pending may change the place of trial in an action from one place to another place in the same judicial district or to a designated place in another judicial district for any of the following reasons:

when there is reason to believe that an impartial trial cannot be had;
when the convenience of witnesses and the ends of justice would be promoted by the change;
when for any cause the judge is disqualified from acting, but if the judge of another judicial district is assigned to try the action, no change of place of trial need be made;
if the court finds that the defendant will be put to unnecessary expense and inconvenience, and if the court finds that the expense and inconvenience were intentionally caused, the court may assess costs against the plaintiff.

History. (§ 17(3) ch 50 SLA 1959; am § 79 ch 6 SLA 1984)

Cross references. —

For court rule relating to change of venue in civil actions, see Rule 3, Alaska Rules of Civil Procedure; for court rule relating to change of venue in criminal cases, see Rule 18, Alaska Rules of Criminal Procedure.

Notes to Decisions

Analysis

I. General Consideration
II. Impartial Trial
III. Convenience of Witnesses

I.General Consideration

Change of venue on proper ground constitutional. —

See United States v. Hoyt, 7 Alaska 276 (D. Alaska 1925).

Arguments about where lawsuit can best be tried can be made under this section. Ebell v. Seapac Fisheries, 692 P.2d 956 (Alaska 1984).

Suit must be commenced in proper venue. —

Plaintiffs must commence suit in the proper Civ. R. 3 venue, and then, if that forum is inconvenient, they may move for a change of venue under this section. This ensures that the superior court in the proper venue, rather than one in the venue of plaintiff ’s choosing, makes the initial determination as to which forum is convenient and precludes plaintiffs from selecting a forum they believe is convenient without regard to Civ. R. 3. Ketchikan Gen. Hosp. v. Dunnagan, 757 P.2d 57 (Alaska 1988).

Trial where offense occurred. —

Generally, criminal trials should be held where the alleged offense occurred. Wylie v. State, 797 P.2d 651 (Alaska Ct. App. 1990).

Discretion of court. —

Within the boundaries of the standards of this section, the decision as to whether venue will be changed is within the sound discretion of the superior court. Maier v. City of Ketchikan, 403 P.2d 34 (Alaska 1965), overruled, Johnson v. City of Fairbanks, 583 P.2d 181 (Alaska 1978); Oxereok v. State, 611 P.2d 913 (Alaska 1980); Wilson v. City of Kotzebue, 627 P.2d 623 (Alaska 1981).

In making the independent evaluation of the circumstances surrounding trial, the supreme court will accord due deference to the informed discretion of the trial judge and reverse only where it believes that the trial judge has abused discretion in denying the change of venue motion. Brown v. State, 601 P.2d 221 (Alaska 1979).

The trial court has discretion to change venue where necessary to ensure a fair trial. Wylie v. State, 797 P.2d 651 (Alaska Ct. App. 1990).

Superior court did not abuse its discretion in a child custody case by denying a mother's motion to change venue in Alaska from Anchorage to Haines because the mother and many of the mother's witnesses planned to appear telephonically from New York regardless of venue, the court agreed to work with the mother regarding e-filing, and the mother's decision to file a New York case delayed the Alaska case and caused the court to develop significant familiarity with the proceedings before ruling on the motion to transfer. Marschke v. Dunbar, — P.3d — (Alaska July 21, 2021).

Jury selection. —

The general rule is that jury selection should be commenced in the venue of the crime and then moved only if voir dire reveals that an impartial jury cannot be obtained. Wylie v. State, 797 P.2d 651 (Alaska Ct. App. 1990).

Affidavit necessary for showing in support of motion for change of venue. —

The showing in support of a motion for change of place of trial should be made by an affidavit which specifically states which of the statutory grounds is relied upon and must state the facts which support the grounds being urged. Coughlan v. Coughlan, 423 P.2d 1010 (Alaska 1967).

Specific reasons for inconvenient venue must be shown. —

In a child custody dispute, a mother’s conclusory remarks about a superior court’s alleged bias were insufficient for a change of venue, and the mother failed to specifically describe why the venue was inconvenient for witnesses; however, on remand the superior court would be allowed to reconsider a motion for change of venue because no one connected with the case lived in the forum city, and the superior court judge had retired. Iverson v. Griffith, 180 P.3d 943 (Alaska 2008).

Abuse of discretion not to grant defendant’s motion for change of venue. —

See Nickolai v. State, 708 P.2d 1292 (Alaska Ct. App. 1985).

Quoted in

Johansen v. State, 491 P.2d 759 (Alaska 1971).

Cited in

North Slope Borough, Dep't of Admin. & Fin., Tax Audit Div. v. Green Int'l, Inc., 969 P.2d 1161 (Alaska 1999); Vanvelzor v. Vanvelzor, 219 P.3d 184 (Alaska 2009).

II.Impartial Trial

When motion granted under paragraph (1). —

A motion for change of venue or continuance shall be granted whenever it is determined that, because of the dissemination of potentially prejudicial material, there is a substantial likelihood that, in the absence of such relief, a fair trial by an impartial jury cannot be had. A showing of actual prejudice shall not be required. Mallott v. State, 608 P.2d 737 (Alaska 1980); Oxereok v. State, 611 P.2d 913 (Alaska 1980).

The trial judge did not abuse his discretion in granting a change of venue where the record of the jury voir dire supported his conclusion that the defendant could not obtain an impartial jury in the small town in which the trial was originally scheduled. Lonis v. State, 998 P.2d 441 (Alaska Ct. App. 2000).

Questions for trial judge. —

A decision whether to grant or deny a change of venue motion depends on the extent to which pretrial publicity is prejudicial and the extent to which the publicity has affected the ability of potential jurors to be fair and impartial. These are questions well suited for evaluation by the trial judge. This is especially true where the motion is made or renewed during jury selection. Brown v. State, 601 P.2d 221 (Alaska 1979).

Abuse of discretion. —

Where there was extensive pretrial publicity, the nature of the events was highly inflammatory, and there was obvious potential for prejudice, much of which might even be unconscious but no less real, the superior court’s refusal to change venue, after voir dire had revealed that a large number of venire persons were not impartial, amounted to an abuse of discretion. Oxereok v. State, 611 P.2d 913 (Alaska 1980).

No abuse of discretion in deciding not to grant change of venue motion. —

See Brown v. State, 601 P.2d 221 (Alaska 1979); W.E.M. v. D.A.M., 619 P.2d 1023 (Alaska 1980).

Where judge proceeds with voir dire to determine impact of publicity. —

In the absence of “inherently prejudicial pre-trial publicity” so inflammatory that a subsequent trial in that locale would be, or would appear to be, but a hollow formality, the supreme court will not find reversible error merely because the trial judge chose to proceed with voir dire to determine the impact of the publicity. Mallott v. State, 608 P.2d 737 (Alaska 1980).

Taxpayers as jurors in suit against municipality. —

When a municipality is sued, the fact that the jurors will be taxpayers or users of a municipal utility is not sufficient to show an abuse of the court’s discretion in refusing a change of venue. Maier v. City of Ketchikan, 403 P.2d 34 (Alaska 1965), overruled, Johnson v. City of Fairbanks, 583 P.2d 181 (Alaska 1978).

Civil case involving police department. —

While a general community opinion may be either favorable or unfavorable toward local police, in neither case should it serve as a justification for changing venue in a civil case involving the police department. Wilson v. City of Kotzebue, 627 P.2d 623 (Alaska 1981).

III.Convenience of Witnesses

Affidavit where ground in paragraph (2) urged. —

Where statutory ground (2) of this section is urged, the affidavit must state the names of the witnesses and the nature of the testimony expected from each, show that their proposed testimony is admissible, relevant and material to an issue in the case as shown by the record and state the reasons why the attendance of each would be inconvenient. Coughlan v. Coughlan, 423 P.2d 1010 (Alaska 1967).

Burden of proof where paragraph (2) grounds urged. —

In urging the statutory ground in paragraph (2) of this section, the moving party bears the burden of proving not only that the convenience of the witnesses will be promoted but also that the ends of justice will be promoted by the change since the two conditions are stated conjunctively. Coughlan v. Coughlan, 423 P.2d 1010 (Alaska 1967).

In the absence of unusual circumstances the convenience of the parties is not to be considered in weighing the merits of a motion for change of place of trial. Coughlan v. Coughlan, 423 P.2d 1010 (Alaska 1967).

Collateral references. —

Venue in bribery cases where crime is committed partly in one county and partly in another. 11 ALR4th 704.

Sec. 22.10.050. General powers and sessions.

The superior court shall always be open, except on judicial holidays as determined by rule of the supreme court. Injunctions, writs of prohibition, mandamus, and habeas corpus may be issued and served on holidays and nonjudicial days. The superior court is a court of record and is vested with all power and authority necessary to carry into complete execution all its judgments, decrees, and determinations in all matters within its jurisdiction according to the constitution, the laws of the state, and the common law. The superior court shall hold regular sessions in each district at the times and places as may be designated by rule or order of the supreme court.

History. (§ 18 ch 50 SLA 1959)

Cross references. —

For judicial holidays, see Rule 16, Alaska Rules of Administration; for sessions of the superior court, see Rule 18, Alaska Rules of Administration.

Notes to Decisions

This section gives superior court all power necessary to carry out its orders. Catlett v. State, 584 P.2d 45 (Alaska 1978).

This power includes giving custody of prisoner to bailiff. Catlett v. State, 584 P.2d 45 (Alaska 1978).

Cited in

Pomeroy v. Rizzo, 182 P.3d 1125 (Alaska 2008).

Collateral references. —

Power of court to control evidence or witnesses going before grand jury. 52 ALR3d 1316.

Court’s power to order sale of property subject to legal life estate, in order to relieve economic distress of life tenant. 57 ALR3d 1189.

Court’s power to appoint additional trustees over number specified in trust instrument. 59 ALR3d 1129.

Inherent power of court to suspend for indefinite period execution of sentence in whole or in part. 73 ALR3d 474.

Power of court or other public agency to order medical treatment for child over parental objection not based on religious grounds. 97 ALR3d 421.

Sec. 22.10.060. Effect of adjournment.

An adjournment from day to day, or from time to time, is a recess in the session, and does not prevent the court from sitting at any time.

History. (§ 19 ch 50 SLA 1959)

Sec. 22.10.070. Seal of court. [Repealed, § 2 ch 64 SLA 1974. For current law, see AS 22.05.060.]

Sec. 22.10.080. Process.

Process of the superior court shall be in the name of the State of Alaska, signed by the clerk of the court or the deputy clerk in the judicial district where the process is issued, dated when issued, sealed with the seal of the court, and made returnable according to rule prescribed by the supreme court.

History. (§ 21 ch 50 SLA 1959; am § 52 ch 69 SLA 1970)

Sec. 22.10.090. Qualifications of judges.

A judge of the superior court shall be a citizen of the United States and of the state, a resident of the state for five years immediately preceding appointment, have been engaged for not less than five years immediately preceding appointment in the active practice of law, and at the time of appointment be licensed to practice law in the state. The active practice of law shall be as defined for justices of the supreme court in AS 22.05.070 .

History. (§ 22 ch 50 SLA 1959; am § 9 ch 12 SLA 1980)

Cross references. —

For constitutional provision related to qualifications of judges, see art. IV, § 4, Constitution of the State of Alaska.

Editor’s notes. —

Section 36, ch. 12, SLA 1980 provides: “The amendments enacted in Secs. 5, 9 and 12 of this Act apply only to justices and judges appointed on or after the effective date of this Act [March 22, 1980].”

Notes to Decisions

Appointment of district court judge as superior court judge pro tempore. —

The chief justice’s authority under Alaska Const., art. IV, § 16 to assign a judge “from one court . . . to another for temporary service,” included the authority to appoint a judge of the district court to serve as judge of the superior court pro tempore, regardless of the differences that existed in the qualifications required by statute for permanent appointment to either of those courts that existed prior to the 1980 amendments. Oxereok v. State, 611 P.2d 913 (Alaska 1980).

Authority of properly appointed pro tempore judge. —

Even if a judge who was properly appointed as a judge pro tempore failed to meet the state residency requirement, he was a de facto judge and had authority to enter findings on remand of a case. Gates v. City of Tenakee Springs, 954 P.2d 1035 (Alaska 1998).

Cited in

In re G. M. B., 483 P.2d 1006 (Alaska 1971).

Collateral references. —

Validity of requirement that candidate or public officer have been resident of governmental unit for specified period. 65 ALR3d 1048.

Validity and construction of constitutional or statutory provision making legal knowledge or experience a condition of eligibility for judicial office. 71 ALR3d 498.

Constitutional restrictions on nonattorney acting as judge in criminal proceeding. 71 ALR3d 562.

Sec. 22.10.100. Vacancies.

The governor shall fill a vacancy or appoint a successor to fill an impending vacancy in the office of superior court judge within 45 days after receiving nominations from the judicial council, by appointing one of two or more persons nominated by the council for each actual or impending vacancy. An appointment to fill an impending vacancy becomes effective upon the actual occurrence of the vacancy.
The office of a superior court judge becomes vacant 90 days after the election at which the judge is rejected by a majority of those voting on the question or for which the judge fails to file a declaration of candidacy. Upon the occurrence of (1) an actual vacancy; (2) the certification of rejection following an election; or (3) the election following failure of a judge to file a declaration of candidacy, the judicial council shall meet within 90 days and submit to the governor the names of two or more persons qualified for the judicial office; except that this 90-day period may be extended by the council with the concurrence of the supreme court. In the event of an impending vacancy other than by reason of rejection or failure to file a declaration of candidacy, the council may meet at any time within the 90-day period immediately preceding the effective date of the vacancy and submit to the governor the names of two or more persons qualified for the judicial office.

History. (§ 23 ch 50 SLA 1959; am § 2 ch 93 SLA 1975; §§ 3, 4 ch 194 SLA 1976; am § 3 ch 7 SLA 1985)

Cross references. —

For provisions governing the judicial council, see art. IV, sec. 8, Constitution of the State of Alaska.

Notes to Decisions

Declaration of candidacy. —

Where two judges filed their declaration of candidacy forms after the statutory deadline, they were not eligible to stand for retention, could not have their names placed on the ballot, and had to vacate their seats. Communications between the judges and the Division of Elections and a judicial council did not expressly declare that either judge held a present intent to stand for retention, and a response to the council’s questionnaire was not a declaration within the meaning of AS 15.35.070 , 15.35.110 . The August 1 declaration deadlines could not reasonably be considered ambiguous or impossible to comply with, and required strict compliance. State v. Jeffery, 170 P.3d 226 (Alaska 2007).

Failure to file timely declaration. —

Plain meaning of Alaska Const. art. IV, § 7, this section (regarding superior court judges), and AS 22.15.170(e) (regarding district court judges) is that vacation is the mandatory consequence for a judge’s failure to timely file a declaration of candidacy. State v. Jeffery, 170 P.3d 226 (Alaska 2007).

Cited in

In re G. M. B., 483 P.2d 1006 (Alaska 1971).

Collateral references. —

Power of successor judge taking office during term time to vacate, etc., judgment entered by his predecessor. 11 ALR2d 1117.

Sec. 22.10.110. Oath of office.

Each superior court judge, upon entering office, shall take and subscribe to an oath of office required of all officers under the constitution and any further oath or affirmation as may be prescribed by law.

History. (§ 24 ch 50 SLA 1959)

Cross references. —

For required oath of office, see art. XII, sec. 5, Constitution of the State of Alaska.

Notes to Decisions

Cited in

DeNardo v. Johnstone, 772 F. Supp. 462 (D. Alaska 1991).

Sec. 22.10.120. Number of judges.

The superior court consists of 45 judges, six of whom shall be judges in the first judicial district, three of whom shall be judges in the second judicial district, 28 of whom shall be judges in the third judicial district, and eight of whom shall be judges in the fourth judicial district. At the time of submitting the names of nominees to the governor to fill a vacancy on the superior court bench, the judicial council shall also designate the district in which the appointee is to reside and serve.

History. (§ 25(1) ch 50 SLA 1959; am § 1 ch 119 SLA 1962; am § 3 ch 83 SLA 1967; am § 1 ch 44 SLA 1970; am § 1 ch 166 SLA 1975; am § 1 ch 193 SLA 1976; am § 1 ch 48 SLA 1979; am § 1 ch 34 SLA 1980; am § 1 ch 70 SLA 1982; am § 1 ch 65 SLA 1983; am § 2 ch 137 SLA 1984; am § 2 ch 9 SLA 1990; am § 1 ch 80 SLA 1992; am § 2 ch 40 SLA 1996; am § 2 ch 64 SLA 2001; am § 6 ch 51 SLA 2006; am § 1 ch 11 SLA 2011; am § 1 ch 4 SLA 2018; am § 1 ch 2 SLA 2019)

Effect of amendments. —

The 2011 amendment, effective July 1, 2011, substituted “The superior court consists of 42 judges” for “The superior court consists of 40 judges” and substituted “26 of whom shall be judges in the third judicial district” for “24 of whom shall be judges in the third judicial district”.

The 2018 amendment, effective July 1, 2018, in the first sentence, substituted “consists of 43 judges, six of whom” for “consists of 42 judges, five of whom”.

The 2019 amendment, effective July 1, 2019, in the first sentence substituted “45 judges” for “43 judges” and “28 of whom” for “26 of whom”.

Notes to Decisions

Number of judges. —

Although specifications of how many judges there will be in each district do appear in the statutes, they are not mandated by express constitutional language. Hornaday v. Rowland, 674 P.2d 1333 (Alaska 1983).

Temporary assignment of judges. —

Where each of the special orders by the chief justice assigning a district court judge is expressly limited in duration or subject matter and none purports to confer upon him all the benefits of regular superior court service, these assignments do not interfere with the legislature’s power to fix the number of superior court judges, nor do they prevent the governor and judicial council from filling a vacancy on the superior court, and they are temporary assignments within the constitutional authority of the chief justice. Kochutin v. State, 739 P.2d 170 (Alaska 1987).

Cited in

Buckalew v. Holloway, 604 P.2d 240 (Alaska 1979).

Sec. 22.10.130. Appointment and duties of presiding judges.

The chief justice of the supreme court shall designate a presiding judge for each district. The presiding judge shall, in addition to regular judicial duties,

assign the cases pending to the judges made available within the district;
supervise the judges and their court personnel in the carrying out of their official duties within the district; and
expedite and keep current the business of the court within the district.

History. (§ 25(2) ch 50 SLA 1959)

Cross references. —

For appointment and functions of masters, see Civ. R. 53.

Notes to Decisions

Assignment of district court matters to superior court judges. —

A presiding judge can assign district court matters to superior court judges without assigning the superior court judge to the district court. Ketzler v. State, 634 P.2d 561 (Alaska Ct. App. 1981).

Jury selection. —

The presiding judge of the integrated courts within a district, where in his opinion efficiency in the administration of justice would be advanced, may take charge of jury selection personally in the district courts. Ketzler v. State, 634 P.2d 561 (Alaska Ct. App. 1981).

Authority to consider motions for continuance. —

Absent explicit restrictions in rule or statute, an administrative order pursuant to which the presiding judge of a judicial district retained the final decision regarding any district or superior court judge’s recommendation that a continuance be granted, was valid, and under this administrative order the acting presiding judge had the authority to review and to deny a motion for a continuance. Jimmie v. Alaska Village Elec. Coop., 624 P.2d 1258 (Alaska 1981).

Permanent intra-district transfers. —

This section, AS 22.15.190 , and the court rules concerning the powers of a presiding judge and the assignment of district court judges do not authorize a presiding judge’s permanent intra-district transfer of a judge. Hornaday v. Rowland, 674 P.2d 1333 (Alaska 1983).

Quoted in

Padie v. State, 566 P.2d 1024 (Alaska 1977).

Stated in

Theodore v. State, 407 P.2d 182 (Alaska 1965), cert. denied, Theodore v. Alaska, 384 U.S. 951, 86 S. Ct. 1570, 16 L. Ed. 2d 547 (U.S. 1966).

Sec. 22.10.140. Chief justice may assign superior court judges.

The chief justice may assign a superior court judge and that judge’s court personnel for temporary duty from time to time not to exceed 90 days annually anywhere in the state except to permit completion of hearings in progress. A judge may be temporarily assigned for longer and additional periods with the consent of that judge.

History. (§ 25(3) ch 50 SLA 1959)

Notes to Decisions

Temporary assignment of judges. —

Cited in

Hornaday v. Rowland, 674 P.2d 1333 (Alaska 1983).

Sec. 22.10.150. Approval or rejection.

Each superior court judge is subject to approval or rejection as provided in AS 15 (Alaska Election Code). The judicial council shall conduct an evaluation of each judge before the retention election and shall provide to the public information about the judge and may provide a recommendation regarding retention or rejection. The information and any recommendation shall be made public at least 60 days before the retention election. The information shall include the judge’s consideration of victims when imposing sentence on persons convicted of felony offenses where the offenses involve victims. The judicial council shall also provide the information and any recommendation to the office of the lieutenant governor in time for publication in the election pamphlet under AS 15.58.050 . If a majority of those voting on the question rejects the candidacy of a judge, the rejected judge may not for a period of four years thereafter be appointed to fill any vacancy in the supreme court, court of appeals, superior court, or district courts of the state.

History. (§ 26 ch 50 SLA 1959; am § 2 ch 85 SLA 1960; am § 2 ch 87 SLA 1975; am § 10 ch 12 SLA 1980; am § 30 ch 43 SLA 2013)

Cross references. —

For provisions governing the judicial council, see art. IV, sec. 8, Constitution of the State of Alaska.

Effect of amendments. —

The 2013 amendment, effective July 1, 2013, added the fourth sentence.

Notes to Decisions

Declaration of candidacy. —

Judicial council’s purpose for the communications to two judges who were up for retention was most obviously to satisfy the council’s own constitutional and statutory obligations; nothing implied a purpose of satisfying the candidates’ obligations to the Division of Election in submitting their declarations of candidacy. State v. Jeffery, 170 P.3d 226 (Alaska 2007).

Applied in

Division of Elections v. Johnstone, 669 P.2d 537 (Alaska 1983).

Collateral references. —

Power of court to remove or suspend judge. 53 ALR3d 882.

Sec. 22.10.160. Incapacity. [Repealed, § 3 ch 213 SLA 1968.]

Sec. 22.10.170. Impeachment.

A superior court judge is subject to impeachment by the legislature for malfeasance or misfeasance in the performance of official duties. Impeachment shall originate in the senate and must be approved by two-thirds vote of its members. The motion for impeachment must list fully the basis for the proceeding. Trial on impeachment shall be conducted by the house of representatives. A supreme court justice designated by the court shall preside at the trial. Concurrence of two-thirds of the members of the house is required for a judgment of impeachment. The judgment may not extend beyond removal from office, but does not prevent proceedings in the courts on the same or related charges.

History. (§ 28 ch 50 SLA 1959)

Cross references. —

For constitutional provision governing impeachment of judges and justices, see art. IV, sec. 12, Constitution of the State of Alaska.

Sec. 22.10.180. Restrictions.

A superior court judge while holding office may not practice law, nor engage in the conduct of any other profession, vocation, or business for profit or compensation, which conduct would interfere with the performance of the judicial duties of the judge, nor may a judge hold office in a political party, or hold any other office or position of profit under the United States, the state or its political subdivisions. A superior court judge filing for another elective public office other than delegate to a constitutional convention of this state or the United States forfeits the judicial position.

History. (§ 29 ch 50 SLA 1959; am § 2 ch 30 SLA 1971; am § 11 ch 12 SLA 1980)

Opinions of attorney general. —

Because the University of Alaska is an instrumentality of the state and membership on its Board of Regents is necessarily an office under the state, a judge may not sit as a regent while holding judicial office. December 27, 1976 Op. Att’y Gen.

When a judge sits as a regent, the judge is not sitting in a representative capacity of the judicial branch or exercising judicial power but rather is exercising certain executive powers of control vested in the regents over the state’s sole institution of higher learning. This, the judge may not do pursuant to Alaska Const., art. IV, § 14. December 27, 1976 Op. Att’y Gen.

Notes to Decisions

Cited in

Begich v. Jefferson, 441 P.2d 27 (Alaska 1968).

Collateral references. —

Propriety and permissibility of judge engaging in the practice of law. 89 ALR2d 886.

Validity and application of statute regarding prohibition of judge from practicing law. 17 ALR4th 829.

Sec. 22.10.190. Compensation.

Except as provided in (d) of this section, the monthly base salary for each superior court judge is $12,730.
A salary disbursement may not be issued to a superior court judge until the judge has filed with the state officer designated to issue salary disbursements an affidavit that no matter referred to the judge for opinion or decision has been uncompleted or undecided by the judge for a period of more than six months.
In addition to the monthly salary, each superior court judge is entitled to receive a geographic cost-of-living adjustment each year on $100,000 of the judge’s annual base salary for that year, based on the location of the primary office assignment. The commissioner of administration shall calculate the geographic cost-of-living adjustment based on the geographic pay differentials established under AS 39.27.020(a) . Retirement contributions and benefits shall be computed only on the monthly base salary not including the geographic cost-of-living adjustment.
Beginning July 1, 2006, if the monthly basic salary for Step E, Range 28, of the salary schedule set out in AS 39.27.011 increases, the monthly base salary of the judges of the superior court shall increase by the same percentage. The increase takes effect when the salary increase under AS 39.27.011 takes effect and may be retroactive if consistent with the change to AS 39.27.011. The commissioner of administration shall, by regulation, establish the percentage at which the salary is increased and the increased salary amount.

History. (§ 30 ch 50 SLA 1959; am § 5 ch 115 SLA 1965; am § 4 ch 83 SLA 1967; am § 2 ch 101 SLA 1969; am § 2 ch 193 SLA 1970; am § 2 ch 34 SLA 1974; am § 2 ch 205 SLA 1975; am § 3 ch 148 SLA 1976; am § 4 ch 263 SLA 1976; am § 5 ch 80 SLA 1978; am §§ 4, 19 ch 3 SLA 1980; am §§ 4, 5 ch 54 SLA 1990; am §§ 5, 6 ch 19 SLA 1991; am § 4 ch 4 FSSLA 1996; am § 8 ch 175 SLA 2004; am §§ 7, 8 ch 51 SLA 2006; am § 2 ch 47 SLA 2013)

Cross references. —

For constitutional provision related to judges’ compensation, see art. IV, § 13, Constitution of the State of Alaska.

Administrative Code. —

For adjustments to judicial salaries, see 2 AAC 6.

Effect of amendments. —

The 2013 amendment, effective July 1, 2013, in (c), in the first sentence, substituted “each year on $100,000 of the judge’s annual base salary for that year” for “under AS 22.35.010 ”, added the second sentence.

Editor’s notes. —

Chapter 205, SLA 1975, which amended this section, was submitted to the voters by referendum and was rejected.

Under § 45, ch. 4, FSSLA 1996, the provisions of that act, which amended subsection (a), are not severable, notwithstanding AS 01.10.030 .

Notes to Decisions

New-trial right not conferred by section. —

This section, which governs judicial salaries, should not be construed as conferring a right to a new trial for the failure to render a decision within six months. Oaksmith v. Brusich, 774 P.2d 191 (Alaska 1989).

Section not enforceable by private citizens. —

Since subsection (b) is not directly enforceable by private citizens, a party has no judicial remedy for a judge’s failure to rule timely. Hertz v. Hertz, 847 P.2d 71 (Alaska), cert. denied, 508 U.S. 955, 113 S. Ct. 2453, 124 L. Ed. 2d 669 (U.S. 1993).

Superior court's failure to resolve the ex-wife's divorce case within six months of trial did not affect the validity of the judgment as this statute was not directly enforceable by private citizens; furthermore, even if the statute were privately enforceable, the wife's failure to show how the delay influenced the superior court's decision would prevent the supreme court from reversing on that ground. Gambini v. Hamilton, 440 P.3d 184 (Alaska 2019).

Cited in

Kochutin v. State, 739 P.2d 170 (Alaska 1987); Mitchell v. Teck Cominco Alaska Inc., 193 P.3d 751 (Alaska 2008); In re Disciplinary Matter Involving White, 463 P.3d 169 (Alaska 2020).

Chapter 15. District Courts and Magistrates.

Revisor’s notes. —

Under § 3, ch 24, SLA 1966, “district court” was substituted for “district magistrate court” in this chapter. In implementing § 3, ch. 24, SLA 1966, “district court of the State of Alaska” has in most instances been shortened to “district court,” following the approach of the Alaska Supreme Court in its handling of the magistrate-court district-court name change in the court rules. (See, for example, Supreme Court Order No. 82 and Supreme Court Order No. 101, with appendix.)

Administrative Code. —

For adjustments to judicial salaries, see 2 AAC 06.

Sec. 22.15.010. Establishment of the district court of the State of Alaska.

There is established a district court of the State of Alaska for each of the four judicial districts of the superior court of this state.

History. (§ 1 ch 184 SLA 1959; am § 1 ch 24 SLA 1966)

Cross references. —

For legislative intent related to this chapter, see § 25, ch. 184, SLA 1959, in the Temporary and Special Acts and Resolves.

Opinions of attorney general. —

This chapter, which provides for the jurisdiction of district courts, does not give these courts probate jurisdiction. 1959 Alas. Op. Att'y Gen. No. 34.

Notes to Decisions

Jurisdictional boundaries. —

Nowhere in the statutes are any boundaries within the district prescribed in which a particular magistrate [now judge] may exercise jurisdiction, but this chapter, which establishes the district courts, does provide that the court shall meet in its district at such place or places therein as may be designated by rule or order of the supreme court. Leege v. Strand, 384 P.2d 665 (Alaska 1963).

Applied in

Larson v. State, 564 P.2d 365 (Alaska 1977); Oxereok v. State, 611 P.2d 913 (Alaska 1980).

Quoted in

Fairbanks v. Schrock, 457 P.2d 242 (Alaska 1969).

Cited in

Delahay v. State, 476 P.2d 908 (Alaska 1970); Davis v. State, 235 P.3d 1017 (Alaska Ct. App. 2010); Selby v. State, — P.3d — (Alaska Ct. App. Oct. 21, 2020).

Collateral references. —

20 Am. Jur. 2d, Courts, § 1 et seq.

46 Am. Jur. 2d, Judges, § 1 et seq.

21 C.J.S., Courts, § 1 et seq.

48A C.J.S., Judges, § 1 et seq.

Sec. 22.15.020. Number of district judges and magistrates.

Except as hereinafter provided, each district court of the state shall have the number of district judges set out below opposite the name of the judicial district over which the court has jurisdiction:
Except as hereinafter provided, each district court of the State of Alaska shall have the number of magistrates set out below opposite the name of the judicial district over which the court has jurisdiction:
The number of district judges or magistrates within each judicial district may be increased or decreased by rule of the supreme court.

First Judicial District 3 Second Judicial District 1 Third Judicial District 12 Fourth Judicial District 3

Click to view

First Judicial District 10 Second Judicial District 7 Third Judicial District 19 Fourth Judicial District 17.

Click to view

History. (§ 2 ch 184 SLA 1959; am § 2 ch 24 SLA 1966; am § 3 ch 137 SLA 1984; am § 2 ch 80 SLA 1992)

Cross references. —

For rule setting out the number and location of district judges and magistrates, see Rule 19, Alaska Rules of Administration.

Notes to Decisions

Legislature’s intent in creating office of magistrate was to meet the immediate requirements of justice in the less populated areas of the state. Buckalew v. Holloway, 604 P.2d 240 (Alaska 1979).

Magistrates are “judges of other courts” within the meaning of Alaska Const., art. IV, § 4. Buckalew v. Holloway, 604 P.2d 240 (Alaska 1979).

Application of subsection (c). —

Subsection (c) of this section could not provide the basis for deciding the presiding superior court judge’s authority to move a district court judge from one place to another since subsection (c) creates power in the supreme court, not the presiding judge; and no permissible delegation of power to that judge was found in this case. Hornaday v. Rowland, 674 P.2d 1333 (Alaska 1983).

Sec. 22.15.030. Civil jurisdiction.

The district court has jurisdiction of civil cases, including foreign judgments filed under AS 09.30.200 and arbitration proceedings under AS 09.43.170 or 09.43.530 to the extent permitted by AS 09.43.010 and 09.43.300 , as follows:
1. for the recovery of money or damages when the amount claimed exclusive of costs, interest, and attorney fees does not exceed $100,000 for each defendant;
2. for the recovery of specific personal property, when the value of the property claimed and the damages for the detention do not exceed $100,000;
3. for the recovery of a penalty or forfeiture, whether given by statute or arising out of contract, not exceeding $100,000;
4. to give judgment without action upon the confession of the defendant for any of the cases specified in this section, except for a penalty or forfeiture imposed by statute;
5. for establishing the fact of death or cause and manner of death of any person in the manner prescribed in AS 09.55.020 — 09.55.069 ;
6. for the recovery of the possession of premises in the manner provided under AS 09.45.070 — 09.45.160 when the value of the arrears and damage to the property does not exceed $100,000;
7. for the foreclosure of a lien when the amount in controversy does not exceed $100,000;
8. for the recovery of money or damages in motor vehicle tort cases when the amount claimed exclusive of costs, interest, and attorney fees does not exceed $100,000 for each defendant;
9. over civil actions for taking utility service and for damages to or interference with a utility line filed under AS 42.20.030 ;
10. over cases involving protective orders for domestic violence under AS 18.66.100 — 18.66.180 ;
11. over cases involving cruelty to or seizure, destruction, adoption, or cost of care of animals under AS 03.55.100 — 03.55.190 .
Insofar as the civil jurisdiction of the district courts and the superior court is the same, the jurisdiction is concurrent. Except for a petition for a protective order under AS 18.66.100 — 18.66.180 , an action that falls within the concurrent jurisdiction of the superior court and the district court may not be filed in the superior court, except as provided by rules of the supreme court.

History. (§ 3 ch 184 SLA 1959; am § 8 ch 110 SLA 1967; am § 1 ch 163 SLA 1968; am §§ 1 — 5 ch 38 SLA 1971; am §§ 1, 2 ch 36 SLA 1972; am § 24 ch 94 SLA 1980; am § 55 ch 59 SLA 1982; am § 3 ch 17 SLA 1985; am § 7 ch 38 SLA 1987; am § 2 ch 89 SLA 1990; am § 35 ch 64 SLA 1996; am § 11 ch 103 SLA 1996; am § 1 ch 51 SLA 2002; am § 1 ch 65 SLA 2004; am § 4 ch 170 SLA 2004; am § 18 ch 60 SLA 2016)

Effect of amendments. —

The 2016 amendment, effective January 17, 2017, added (a)(11), and made a related change.

Notes to Decisions

Limited jurisdiction. —

District courts in Alaska are limited to jurisdiction in civil matters to cases involving amounts under $3,000 [now $100,000]. Pennington v. Snow, 471 P.2d 370 (Alaska 1970), limited, Kott v. State, 678 P.2d 386 (Alaska 1984).

District court is creature of statute creating it. Ex parte Oates, 8 Alaska 319 (D. Alaska 1931), rev'd, United States v. Oates, 61 F.2d 536, 5 Alaska Fed. 677 (9th Cir. Alaska 1932).

And its powers must be exercised within limits conferred by law. —

The jurisdiction and authority of a district court continues only so long as it confines the exercise of its powers within the limits conferred by law. Ex parte Oates, 8 Alaska 319 (D. Alaska 1931), rev'd, United States v. Oates, 61 F.2d 536, 5 Alaska Fed. 677 (9th Cir. Alaska 1932).

No intendments or presumptions will be indulged in favor of jurisdiction of a district court. Ex parte Oates, 8 Alaska 319 (D. Alaska 1931), rev'd, United States v. Oates, 61 F.2d 536, 5 Alaska Fed. 677 (9th Cir. Alaska 1932).

Jurisdiction cannot be conferred by consent of parties. —

Consent of parties cannot confer upon a district court a jurisdiction or a power to act upon subjects which are not submitted to its judgment by the law. Myers v. Swineford, 1 Alaska 10 (D. Alaska 1888).

Nor ousted by counterclaim in excess of jurisdictional amount. —

A defendant cannot oust the jurisdiction of a district court by pleading a counterclaim which exceeds the amount for which judgment can be obtained in such court. Bennett v. Forrest, 69 F. 421, 1 Alaska Fed. 407 (D. Alaska 1895).

Whole proceeding void in absence of jurisdiction. —

If a court of limited jurisdiction assumes to act in a case over which the law does not give it authority, the whole proceeding, from the issuing of the writ to the rendition of judgment, is void. Myers v. Swineford, 1 Alaska 10 (D. Alaska 1888).

Record of district court is always open to attack in habeas corpus proceeding, and when thus challenged, such court must justify its official acts at any and every stage of the proceedings, by showing that it acted within its jurisdiction. Ex parte Oates, 8 Alaska 319 (D. Alaska 1931), rev'd, United States v. Oates, 61 F.2d 536, 5 Alaska Fed. 677 (9th Cir. Alaska 1932).

Jurisdiction under paragraph (a)(7). —

In the absence of a clear intent by the legislature to limit the jurisdiction extended by paragraph (a)(9) (now (a)(7)) to liens other than on real property, the supreme court refused to so limit the district court’s jurisdiction. Stephens v. Hammersley, 552 P.2d 652 (Alaska 1976).

AS 22.15.050 (1) not impliedly repealed by paragraph (a)(7). —

Paragraph (a)(7), authorizing actions for foreclosure of liens under $10,000 (now $100,000) in district courts, was enacted subsequent to AS 22.15.050 (1) prohibiting actions in district court where title to real property is at issue. But repeal of AS 22.15.050 (1) will not be implied since the two provisions can be reconciled by holding that lien foreclosures under $10,000 (now $100,000), including those on real property, are permissible as long as title to real property is not in question. Stephens v. Hammersley, 550 P.2d 1268 (Alaska 1976).

District court lacked jurisdiction over action for accrued rent. —

Where the district court had no jurisdiction over actions for forcible entry and detainer in 1965, the court also lacked jurisdiction to enter a 1966 judgment on a second cause of action for accrued rent under the special form of summons used in forcible entry and detainer actions. McDowell v. Lenarduzzi, 546 P.2d 1315 (Alaska 1976).

Applied in

Oxereok v. State, 611 P.2d 913 (Alaska 1980).

Cited in

Dowling Supply & Equip. v. Anchorage, 490 P.2d 907 (Alaska 1971); Aguchak v. Montgomery Ward Co., 520 P.2d 1352 (Alaska 1974); Murphy v. City of Wrangell, 763 P.2d 229 (Alaska 1988).

Sec. 22.15.040. Small claims.

Except as otherwise provided in this subsection, when a claim for relief does not exceed $10,000, exclusive of costs, interest, and attorney fees, and request is so made, the district judge or magistrate shall hear the action as a small claim unless important or unusual points of law are involved or the state is a defendant. The Department of Labor and Workforce Development may bring an action as a small claim under this subsection for the payment of wages under AS 23.05.220 in an amount not to exceed $20,000, exclusive of costs, interest, and attorney fees. The supreme court shall prescribe the procedural rules and standard forms to assure simplicity and the expeditious handling of small claims.
All potential small claim litigants shall be informed if mediation, conciliation, and arbitration services are available as an alternative to litigation.

History. (§ 8(4) ch 184 SLA 1959; added by § 1 ch 91 SLA 1961; am § 1 ch 12 SLA 1970; am § 1 ch 23 SLA 1978; am §§ 1, 2 ch 3 SLA 1986; am § 2 ch 119 SLA 1992; am § 1 ch 33 SLA 1997; am § 1 ch 48 SLA 2000; am § 2 ch 65 SLA 2004)

Cross references. —

Small claims rules may be found in Rule 8, District Court Rules of Civil Procedure.

Notes to Decisions

Magistrates are “judges of other courts” within the meaning of Alaska Const., art. IV, § 4. Buckalew v. Holloway, 604 P.2d 240 (Alaska 1979).

Notice to indigent bush defendants. —

Proper tailoring of notice to the capacities and circumstances of indigent bush defendants requires the communication of substantially more information regarding the methods by which such defendants can respond to a distant lawsuit than is presently imparted. Aguchak v. Montgomery Ward Co., 520 P.2d 1352 (Alaska 1974).

A notice that fails to inform the indigent bush defendant of the right to file a written pleading is not reasonably calculated to afford the defendant an opportunity to be heard at a meaningful time and in a meaningful manner. Aguchak v. Montgomery Ward Co., 520 P.2d 1352 (Alaska 1974).

The summons served upon indigent bush defendants in a small claims action was constitutionally defective because it did not adequately convey the information necessary to their defense against a creditor’s claim. The district court’s assumption of personal jurisdiction over the debtors based on such a summons therefore violated the due process rights which inure to the debtors under Alaska Const., art. I, § 7. Aguchak v. Montgomery Ward Co., 520 P.2d 1352 (Alaska 1974).

Counsel for collection suit defendants. —

The bulk of collection suit defendants, due to indigency, cannot afford to engage counsel to advise them of their “venue” rights. Aguchak v. Montgomery Ward Co., 520 P.2d 1352 (Alaska 1974).

The difficulties of locating counsel in the outlying areas of Alaska exacerbate the already substantial impediments to defense of the collection suit. Aguchak v. Montgomery Ward Co., 520 P.2d 1352 (Alaska 1974).

Applied in

Oxereok v. State, 611 P.2d 913 (Alaska 1980); Brandner v. Agre, 80 P.3d 691 (Alaska 2003).

Sec. 22.15.050. Actions not within civil jurisdiction.

The jurisdiction of the district courts does not extend to

an action in which the title to real property is in question;
an action of an equitable nature, except as otherwise provided by law.

History. (§ 4 ch 184 SLA 1959; am § 6 ch 38 SLA 1971; am § 4 ch 17 SLA 1985; am § 3 ch 119 SLA 1992; am § 3 ch 65 SLA 2004)

Notes to Decisions

Actions involving lien. —

District court will not automatically be precluded from exercising jurisdiction merely because a lien is sought to be enforced on real property. Stephens v. Hammersley, 550 P.2d 1268 (Alaska 1976).

Absent title disputes, questions concerning the validity of a particular lien, such as whether a lien was properly filed, or questions as to the amount of a lien will not automatically divest a district court of the power to proceed in an action. Stephens v. Hammersley, 550 P.2d 1268 (Alaska 1976).

Court lacks jurisdiction under paragraph (1) only where title is in issue. —

In light of the legal qualifications of present district court judges, the supreme court does not believe that the legislature intended that a district court lack jurisdiction under subsection (1) unless, from the pleadings and the issues actually contested, title to property is clearly in issue. Stephens v. Hammersley, 550 P.2d 1268 (Alaska 1976).

Original reason for type of jurisdictional limitation as in paragraph (1) was to prevent the complex and intricate questions which frequently arise in a title dispute from being decided by a court presided over by a person who was not learned in the law. As applied to the district courts of this state, however, the distinction is an anachronism, since a district court judge must be licensed to practice law in Alaska. Nevertheless, the jurisdictional limitation remains. Stephens v. Hammersley, 550 P.2d 1268 (Alaska 1976).

Repeal of paragraph (1) not implied from enactment of AS 22.15.030(a)(7) . —

AS 22.15.030(a)(7) , authorizing actions for foreclosure of liens under $10,000 (now $100,000) in district courts, was enacted subsequent to paragraph (1) prohibiting actions in district court where title to real property is at issue. But repeal of paragraph (1) will not be implied since the two provisions can be reconciled by holding that lien foreclosures under $10,000 (now $100,000), including those on real property, are permissible as long as title to real property is not in question. Stephens v. Hammersley, 550 P.2d 1268 (Alaska 1976).

Legal remedy requiring application of equitable principles. —

Where a plaintiff seeks a legal remedy requiring the application of equitable principles to determine if relief is justified, the claim sounds at law, and the fact that the court must apply the equitable doctrine is incidental; therefore, resolving the question of a contractor’s substantial compliance with the contractor licensing statute was necessary and incidental to the resolution of his small claim and did not convert it into an equitable action. Brandner v. Agre, 80 P.3d 691 (Alaska 2003).

Issue of title must appear on trial from evidence. —

A magistrate [now judge] not only has the right, but the duty, to enter upon the trial of a cause for which there otherwise is jurisdiction, notwithstanding an issue of title is made by the pleadings, and, unless it appears on the trial from the evidence that the title to land is actually in dispute, to proceed to try the cause out and render judgment. Blue v. Green, 7 Alaska 47 (D. Alaska 1923).

Forcible entry and detainer action. —

Where plaintiff attempted in a forcible entry and detainer action to litigate the merits of defendant’s title, defendant’s motion to dismiss the action should have been granted pursuant to AS 09.45.150 and this section. Johnson v. Robinson, 637 P.2d 1051 (Alaska 1981).

Suing for money after disaffirmance of fraudulently induced contract. —

Where the plaintiff sued for moneys paid by him on a contract which he alleged he was induced to enter into through misrepresentations and fraud of the defendant, and plaintiff disaffirmed the contract by reason of such misrepresentations and fraud, this was an action at law, and it was the duty of the court to have entertained such action. Blue v. Green, 7 Alaska 47 (D. Alaska 1923).

Plaintiff seeking equitable relief. —

If the plaintiff is seeking equitable relief, then a motion to dismiss can properly be laid before the magistrate [now judge] for want of jurisdiction to entertain the action. Blue v. Green, 7 Alaska 47 (D. Alaska 1923).

Equitable claim incidental to resolution of contract action. —

District court did not abuse its discretion when, pursuant to Alaska R. Civ. P. 15(a), it permitted a builder to amend an answer to assert counterclaims for unpaid wages against a property owner who had filed an action to cancel the builder’s mechanic’s liens against the property where (1) when the trial court ruled on the builder’s motion to amend his complaint, the district court had no definitive factual basis for concluding that builder could only assert his counterclaims as a person acting in the capacity of a contractor and was therefore barred from suing under AS 08.18.151 ; (2) the district court ultimately based its decision on the builder’s claim for breach of contract, not his quantum meruit claim, so any error in accepting the equitable claim was harmless at most; and (3) when consideration of an equitable claim was necessary and incidental to the resolution of the district court action founded in contract, resolving the claim did not convert the case into an equitable action under this section. Larson v. Benediktsson, 152 P.3d 1159 (Alaska 2007).

District court lacks jurisdiction to hear parole eligibility complaints. —

The legislature did not intend to empower the district court to hear complaints regarding eligibility for parole. Bishop v. Municipality of Anchorage, 685 P.2d 103 (Alaska Ct. App. 1984).

District court lacked jurisdiction to decide challenges to parole board’s interpretation of AS 33.15.180 [now repealed] and to the constitutionality of the section as interpreted; such challenges must be brought in the superior court. Bishop v. Municipality of Anchorage, 685 P.2d 103 (Alaska Ct. App. 1984).

Or Criminal Rule 35(c) proceedings. —

The district court lacks jurisdiction over Alaska R. Crim. P. 35(c) proceedings. Bishop v. Municipality of Anchorage, 685 P.2d 103 (Alaska Ct. App. 1984).

Motions for correction or reduction of sentence. —

Because Criminal Rule 35(a) motions for correction or reduction of sentence are part of the original criminal proceedings, they are not governed by the restrictions on the civil jurisdiction of the district court set forth in this section. State v. Danielson, 809 P.2d 937 (Alaska Ct. App. 1991).

Applied in

Oxereok v. State, 611 P.2d 913 (Alaska 1980); Kopanuk v. AVCP Regional Hous. Auth., 902 P.2d 813 (Alaska 1995).

Quoted in

Anchorage Helicopter Serv. v. Anchorage Westward Hotel, 417 P.2d 903 (Alaska 1966).

Cited in

Buckalew v. Holloway, 604 P.2d 240 (Alaska 1979); Cozzetti v. Madrid, — P.3d — (Alaska Dec. 13, 2017).

Sec. 22.15.060. Criminal jurisdiction.

The district court has jurisdiction
1. of the following crimes:
  1. a misdemeanor, unless otherwise provided in this chapter;
  2. a violation of an ordinance of a political subdivision;
  3. a violation of AS 04.16.050 or AS 11.76.105 ;
2. to provide post-conviction relief under the Alaska Rules of Criminal Procedure, if the conviction occurred in the district court.
Insofar as the criminal jurisdiction of the district courts and the superior court is the same, such jurisdiction is concurrent.

History. (§ 5 ch 184 SLA 1959; am § 1 ch 186 SLA 1990; am § 4 ch 81 SLA 1995)

Cross references. —

For jurisdiction over infractions and violations, see AS 12.80.040 .

Notes to Decisions

Criminal contempt cases arising from superior court proceedings. —

The district court has jurisdiction over all misdemeanors, unless otherwise provided, which jurisdiction is concurrent with that of the superior court, and nothing restricts the district court’s jurisdiction over criminal contempt cases arising from superior court proceedings. Moss v. State, 834 P.2d 1256 (Alaska Ct. App. 1992).

Jurisdiction found. —

Court rejected defendant’s claim that the trial court had no authority to decide defendant’s case, where he was convicted under AS 28.15.291(a)(1) , because the legislature expressly granted the trial court jurisdiction over misdemeanor offenses pursuant to Alaska Const. art. IV, § 1 and this section. Gladden v. State, 110 P.3d 1006 (Alaska Ct. App. 2005).

District court had subject matter jurisdiction over defendant's case for driving while license revoked, and it also had personal jurisdiction over defendant because he was present within the State when he committed the infraction of driving while license revoked. Selby v. State, — P.3d — (Alaska Ct. App. Oct. 21, 2020).

Applied in

State v. Pete, 420 P.2d 338 (Alaska 1966); Oxereok v. State, 611 P.2d 913 (Alaska 1980).

Quoted in

State v. Anchorage, 513 P.2d 1104 (Alaska 1973); State v. Danielson, 809 P.2d 937 (Alaska Ct. App. 1991); Veeder v. Municipality of Anchorage, 969 P.2d 642 (Alaska Ct. App. 1998).

Stated in

Fairbanks v. Schrock, 457 P.2d 242 (Alaska 1969).

Cited in

State v. Browder, 486 P.2d 925 (Alaska 1971); Buckalew v. Holloway, 604 P.2d 240 (Alaska 1979); Rollins v. State, 748 P.2d 767 (Alaska Ct. App. 1988); McMullen v. State, 426 P.3d 1168 (Alaska Ct. App. 2018).

Sec. 22.15.070. Extent of jurisdiction.

The civil jurisdiction and the criminal jurisdiction of the district court of the State of Alaska extend over the entire state.

History. (§ 6(1) ch 184 SLA 1959; am § 3 ch 36 SLA 1972)

Notes to Decisions

This section expressly confers statewide jurisdiction upon district courts. Aguchak v. Montgomery Ward Co., 520 P.2d 1352 (Alaska 1974).

Jurisdiction found. —

Distinction between jurisdiction and venue. —

This section and AS 22.15.080 establish a distinction between jurisdiction and venue. “Jurisdiction” connotes the inherent power of a court to hear and adjudicate the subject matter in a given case, while “venue” designates the particular place or locality in which a court having such jurisdiction may in the first instance properly hear and determine the case. Leege v. Strand, 384 P.2d 665 (Alaska 1963).

Cited in

Pete v. State, 379 P.2d 625 (Alaska 1963).

Sec. 22.15.080. Change of venue.

The court in which an action is pending shall change the place of trial of the action from one place to another place in the same judicial district or to a designated place in another judicial district when the court finds any of the following:

there is reason to believe that an impartial trial cannot be had;
the convenience of witnesses and the ends of justice would be promoted by the change;
the judge or magistrate is disqualified from acting, but if another judge or magistrate is assigned to try the action, no change of place of trial need be made;
the defendant will be put to unnecessary expense and inconvenience, and if the court finds that the expense and inconvenience were intentionally caused, the court may assess costs against the plaintiff.

History. (§ 6(2) ch 184 SLA 1959; am § 33 ch 8 SLA 1971)

Notes to Decisions

Distinction between jurisdiction and venue. —

This section and AS 22.15.070 establish a distinction between jurisdiction and venue. “Jurisdiction” connotes the inherent power of a court to hear and adjudicate the subject matter in a given case, while “venue” designates the particular place or locality in which a court having such jurisdiction may in the first instance properly hear and determine the case. Leege v. Strand, 384 P.2d 665 (Alaska 1963).

Change of venue on proper ground constitutional. —

No constitutional right of a defendant was violated by a change of venue on motion of the prosecution on the ground that an impartial trial could not be had in the place where defendant had been indicted. United States v. Hoyt, 7 Alaska 276 (D. Alaska 1925).

Small claims are subject to change of venue. —

Small claims, like other actions in the district courts, are subject to change of venue when the defendant cannot, without unnecessary expense and inconvenience, defend the action in the plaintiff’s chosen forum. Aguchak v. Montgomery Ward Co., 520 P.2d 1352 (Alaska 1974).

Pre-trial publicity. —

No change of venue is required when, despite the dissemination of pre-trial publicity, a substantial portion of the prospective jurors have not been exposed to the publicity or, at least, not exposed to its prejudicial aspects. Cheely v. State, 861 P.2d 1168 (Alaska Ct. App. 1993).

Change under paragraph (1). —

In deciding whether to change venue under paragraph (1), the trial court exercises broad discretion and is empowered, in almost all instances, to reserve decision until completion of jury voir dire. Newcomb v. State, 800 P.2d 935 (Alaska Ct. App. 1990).

Waiver of motion. —

When a defendant does not renew his motion to change venue after jury voir dire, the failure to renew the motion is considered to be an apparently deliberate waiver of the motion to change venue. Alexander v. State, 838 P.2d 269 (Alaska Ct. App. 1992).

Denial reversed only where discretion abused. —

A lower court’s decision to deny a change of venue motion will be reversed only if the decision amounts to an abuse of discretion. Jerrel v. State, 756 P.2d 301 (Alaska Ct. App. 1988).

Refusal to change venue not error. —

Where a number of jurors were familiar with the witnesses in the case, and several jurors were exposed to prejudicial pretrial information, the trial judge did not err in refusing to change venue but was required to exercise extreme diligence, by granting challenges, to select an impartial jury. Nelson v. State, 781 P.2d 994 (Alaska Ct. App. 1989).

Trial court did not err in denying defendant’s motion to change venue in a case involving charges of attempted murder, assault, escape, and weapons offenses, where little of the extensive pretrial publicity was particularly inflammatory or inherently prejudicial and most articles describing the offenses conveyed information undisputed at trial. Newcomb v. State, 800 P.2d 935 (Alaska Ct. App. 1990).

Sec. 22.15.090. Sessions and general powers of district court.

The district court shall always be open for the transaction of business, except on judicial holidays as determined by rule of the supreme court. However, the court may at any time
1. exercise its powers in a criminal action, or in a proceeding of a criminal nature, including the issuance of orders pertaining to bail;
2. receive a verdict or discharge a jury;
3. issue writs of habeas corpus;
4. issue warrants of arrest and summons and search warrants.
The court shall meet in its district at times and places that may be designated by rule or order of the supreme court. The district court has all power and authority necessary to carry into complete execution all its judgments, decrees, and determinations in all matters within its jurisdiction according to the constitution, the laws of the state, and the common law.

History. (§ 7 ch 184 SLA 1959)

Cross references. —

For judicial holidays, see Rule 16, Alaska Rules of Administration; for sessions of the district court, see Rule 18, Alaska Rules of Administration.

Sec. 22.15.100. Functions and powers of district judge and magistrate.

Each district judge and magistrate has the power

to issue writs of habeas corpus for the purpose of inquiring into the cause of restraint of liberty, returnable before a judge of the superior court, and the same proceedings shall be had on the writ as if it had been granted by the superior court judge under the laws of the state in those cases;
of a notary public;
to solemnize marriages;
to issue warrants of arrest, summons, and search warrants according to manner and procedure prescribed by law and the supreme court;
to act as an examining judge or magistrate in preliminary examinations in criminal proceedings; to set, receive, and forfeit bail and to order the release of defendants under bail;
to act as a referee in matters and actions referred to the judge or magistrate by the superior court, with all powers conferred upon referees by laws;
of the superior court in all respects including contempts, attendance of witnesses, and bench warrants;
to order the temporary detention of a minor, or take other action authorized by law or rules of procedure, in cases arising under AS 47.10 or AS 47.12, when the minor is in a condition or surrounding dangerous or injurious to the welfare of the minor or others that requires immediate action; the action may be continued in effect until reviewed by the superior court in accordance with rules of procedure governing these cases;
to issue a protective order in cases involving
1. domestic violence as provided in AS 18.66.100 — 18.66.180 ; or
2. stalking or sexual assault as provided in AS 18.65.850 — 18.65.870 ;
to review an administrative revocation of a person’s driver’s license or nonresident privilege to drive, and an administrative refusal to issue an original license, when designated as a hearing officer by the commissioner of administration and with the consent of the administrative director of the Alaska Court System;
to establish the fact of death or inquire into the death of a person in the manner prescribed under AS 09.55.020 — 09.55.069 ;
to issue an ex parte testing, examination, or screening order according to the manner and procedure prescribed by AS 18.15.375 .

History. (§ 8(1) ch 184 SLA 1959; am § 1 ch 5 SLA 1960; am § 6 ch 110 SLA 1967; am § 4 ch 139 SLA 1980; am § 24 ch 77 SLA 1983; am § 5 ch 17 SLA 1985; am § 5 ch 59 SLA 1996; am § 36 ch 64 SLA 1996; am § 12 ch 103 SLA 1996; am § 3 ch 79 SLA 1997; am E.O. No. 99 § 18 (1997); am § 11 ch 99 SLA 1998; am § 7 ch 87 SLA 2003; am § 10 ch 54 SLA 2005; am § 1 ch 4 SLA 2010; am § 23 ch 8 SLA 2011; am § 16 ch 3 SLA 2017)

Revisor’s notes. —

In implementing § 3, ch 24, SLA 1966, in AS 22.15.100 (5) “judge” was added to rather than substituted for “magistrate” because it is clear from the lead-in line that, as used in the old version, the word “magistrate” included both the district magistrate and the deputy magistrate. Therefore, both the district judge and the magistrate are now included.

Administrative Code. —

For administration, see 7 AAC 5, art. 1.

Effect of amendments. —

The 2003 amendment, effective September 11, 2003, added subparagraph (9)(B) and made related stylistic changes.

The 2005 amendment, effective June 25, 2005, added paragraph (12) and made a related stylistic change.

The 2010 amendment, effective June 29, 2010, in (9)(B), added “or sexual assault” following “stalking”.

The 2011 amendment, effective May 10, 2011, substituted “Alaska Court System” for “state court system” in (10).

The 2017 amendment, effective July 1, 2017, in (1), near the end, substituted “in those cases” for “in such cases”; in (7), deleted “but not limited to” following “in all respects including”.

Editor’s notes. —

Section 7, ch. 110, SLA 1967, as amended by § 80, ch. 69, SLA 1970, provides: “In exercising its jurisdiction under AS 47.10, the superior court may designate district judges and magistrates as masters under Civil Rule 53.”

Notes to Decisions

Magistrates are “judges of other courts” within the meaning of Alaska Const., art. IV, § 4. Buckalew v. Holloway, 604 P.2d 240 (Alaska 1979).

Applied in

Larson v. State, 564 P.2d 365 (Alaska 1977); Granato v. Occhipinti, 602 P.2d 442 (Alaska 1979).

Stated in

Whitesides v. Dep't of Pub. Safety, DMV, 20 P.3d 1130 (Alaska 2001); Ruerup v. Ruerup, 408 P.3d 1203 (Alaska 2018).

Cited in

Bishop v. Municipality of Anchorage, 685 P.2d 103 (Alaska Ct. App. 1984).

Collateral references. —

Manner or extent of examination of witnesses by trial judge. 6 ALR4th 951.

Sec. 22.15.110. Additional duties of district judge and magistrate.

Each district judge and magistrate shall
1. record birth, death, and marriage certificates presented to them for record in the manner prescribed by law;
2. authorize the burial or disposition of bodies under AS 12.65.100 ; and
3. upon application by an appropriate person, appoint the person to assume temporary custody of and preserve the property and estate of deceased persons until disposition of the property is made under AS 13.16 or further order is made by the court.
A district judge may establish a controlled livestock district in accordance with AS 03.35.010 .

History. (§ 8(2) ch 184 SLA 1959; am § 4 ch 5 SLA 1960; am § 8 ch 145 SLA 1975; am § 25 ch 21 SLA 1985; am § 8 ch 147 SLA 1990; am § 13 ch 103 SLA 1996)

Administrative Code. —

For administration, see 7 AAC 5, art. 1.

For special procedures, see 7 AAC 5, art. 3.

Sec. 22.15.120. Limitations on proceedings which magistrate may hear.

A magistrate shall preside only in cases and proceedings under AS 22.15.040 , 22.15.100 , and 22.15.110 , and as follows:
1. for the recovery of money or damages only when the amount claimed, exclusive of costs, interest, and attorney fees, does not exceed $10,000;
2. for the recovery of specific personal property when the value of the property claimed and the damages for the detention do not exceed $10,000;
3. for the recovery of a penalty or forfeiture, whether given by statute or arising out of contract, not exceeding $10,000;
4. to give judgment without action upon the confession of the defendant for any of the cases specified in this section, except for a penalty or forfeiture imposed by statute;
5. to give judgment of conviction upon a plea of guilty or no contest by the defendant in a criminal proceeding within the jurisdiction of the district court;
6. to hear, try, and enter judgments in all cases involving misdemeanors that are not minor offenses if the defendant consents in writing that the magistrate may try the case;
7. to hear, try, and enter judgments in all cases involving minor offenses and violations of ordinances of political subdivisions;
8. for the extradition of fugitives as authorized under AS 12.70;
9. to provide post-conviction relief under the Alaska Rules of Criminal Procedure for any of the cases specified in (5), (6), or (7) of this subsection if the conviction occurred in the district court; or
10. to hear, try, and enter judgments in actions for the payment of wages brought by the Department of Labor and Workforce Development as provided in AS 22.15.040(a) .
A magistrate may not preside in small claims cases under AS 22.15.040 when service is made on a defendant outside the state under Rule 11(a)(4)(C), District Court Rules of Civil Procedure.
In this section, “minor offense” means
1. an offense classified by statute as an infraction or a violation;
2. an offense for which a bail forfeiture amount has been authorized by statute and established by supreme court order; or
3. a statutory offense for which a conviction cannot result in incarceration, a fine greater than $300, or the loss of a valuable license.

History. (§ 19 ch 184 SLA 1959; am § 5 ch 5 SLA 1960; am § 1 ch 85 SLA 1961; am § 2 ch 91 SLA 1961; am § 12 ch 70 SLA 1964; am § 8 ch 110 SLA 1967; am §§ 18 — 20 ch 71 SLA 1972; am § 1 ch 65 SLA 1978; am § 3 ch 3 SLA 1986; am § 10 ch 12 SLA 1986; am § 8 ch 38 SLA 1987; am § 5 ch 125 SLA 1992; am §§ 1, 2 ch 31 SLA 1993; am § 1 ch 26 SLA 1995; am § 18 ch 103 SLA 1996; am § 2 ch 33 SLA 1997; am § 2 ch 48 SLA 2000; am §§ 4, 5 ch 65 SLA 2004)

Revisor’s notes. —

Subsection (b) was enacted as (c) and relettered in 2004, at which time former subsection (b) was relettered as (c).

Cross references. —

For declaration of death proceeding under magistrate, see AS 09.55.020 — 09.55.060 .

Notes to Decisions

Construction. —

Court of Appeals of Alaska interprets AS 22.15.120(a)(5) to mean that if a defendant pleads guilty or no contest in front of a magistrate judge, that magistrate judge is authorized to accept the plea and then impose sentence. Akers v. State, 389 P.3d 65 (Alaska Ct. App. 2016).

Application. —

Under AS 22.15.120(a)(5) , defendant was entitled to have her probation revocation proceeding conducted by a district court judge or by a superior court judge sitting in the district court, rather than a magistrate judge, where her original guilty plea and sentencing were not handled by a magistrate judge. Akers v. State, 389 P.3d 65 (Alaska Ct. App. 2016).

Jurisdiction. —

Magistrates are “judges of other courts” within the meaning of Alaska Const., art. IV, § 4. Buckalew v. Holloway, 604 P.2d 240 (Alaska 1979).

Applied in

Larson v. State, 564 P.2d 365 (Alaska 1977).

Stated in

Theodore v. State, 407 P.2d 182 (Alaska 1965).

Cited in

Annas v. State, 726 P.2d 552 (Alaska Ct. App. 1986); Davis v. State, 235 P.3d 1017 (Alaska Ct. App. 2010).

Collateral references. —

Constitutional restrictions on nonattorney acting as judge in criminal proceeding. 71 ALR3d 562.

Sec. 22.15.130. Seal of court. [Repealed, § 2 ch 64 SLA 1974. For current law, see AS 22.05.060.]

Sec. 22.15.140. Process.

Process of the district court shall be in the name of the State of Alaska, signed by the district judge, magistrate, clerk, or deputy clerk of the district court in the judicial district where the process is issued, dated when issued, sealed with the seal of the court, and made returnable according to rule prescribed by the supreme court and shall run throughout the state.

History. (§ 10 ch 184 SLA 1959; am § 1 ch 35 SLA 1970)

Notes to Decisions

Quoted in

Aguchak v. Montgomery Ward Co., 520 P.2d 1352 (Alaska 1974).

Cited in

Larson v. State, 564 P.2d 365 (Alaska 1977).

Sec. 22.15.150. Jury trials.

The trial jury in the district courts consists of a body of six persons in number.

History. (§ 1 ch 82 SLA 1961)

Notes to Decisions

No conflict between this section and Alaska Const., art. I, § 11. —

There is no conflict between Alaska Const., art. I, § 11, which provides for a jury of 12 in criminal cases but states that the legislature may provide for a jury of not more than 12 nor less than six in courts not of record, and this section, which provides for a jury of six in a district court, since the district court is a court not of record. Lopez v. Anchorage, 597 P.2d 146 (Alaska 1979).

As used in Alaska Const., art. I, § 11, the phrase “courts not of record” means courts of limited jurisdiction, such as the district court, which have been created by the legislature pursuant to constitutional authority and which the legislature has not seen fit to designate specifically as “courts of record.” Lopez v. Anchorage, 597 P.2d 146 (Alaska 1979).

Sec. 22.15.160. Qualifications of district judges and magistrates.

A district judge shall be a citizen of the United States and of the state, at least 21 years of age, a resident of the state for at least five years immediately preceding appointment, and (1) have been engaged in the active practice of law for not less than three years immediately preceding appointment and at the time of appointment licensed to practice law in the State of Alaska; or (2) have served for at least seven years as a magistrate in the state. The supreme court may prescribe additional qualifications.
A magistrate shall be a citizen of the United States and of the state, at least 21 years of age, and a resident of the state for at least six months immediately preceding appointment. The supreme court may prescribe additional qualifications.

History. (§ 11 ch 184 SLA 1959; am § 1 ch 117 SLA 1967; am § 12 ch 12 SLA 1980)

Opinions of attorney general. —

The requirement that a district judge engage in the active practice of law at least three years “immediately preceding appointment” bars consideration of a candidate who has practiced law only 18 of the 36 months before appointment; the applicant who moved to Alaska in May 1979 and took the Alaska Bar exam in July 1979 should be considered a five-year resident; and the candidate admitted to practice November 6, 1981 may be considered by the council for a district judgeship. July 19, 1984 Op. Att’y Gen.

Notes to Decisions

Appointment of district court judge as superior court judge pro tempore. —

The chief justice’s authority under Alaska Const., art. IV, § 16 to assign a judge “from one court . . . to another for temporary service,” included the authority to appoint a judge of the district court to serve as judge of the superior court pro tempore, regardless of the differences that existed in the qualifications required by statute for permanent appointment to either of those courts prior to the 1980 amendments. Oxereok v. State, 611 P.2d 913 (Alaska 1980).

Applied in

Buckalew v. Holloway, 604 P.2d 240 (Alaska 1979).

Cited in

Stephens v. Hammersley, 550 P.2d 1268 (Alaska 1976).

Collateral references. —

Validity of requirement that candidate or public officer have been resident of governmental unit for specified period. 65 ALR3d 1048.

Validity and construction of constitutional or statutory provision making legal knowledge or experience a condition of eligibility for judicial office. 71 ALR3d 498.

Validity of age requirement for state public office. 90 ALR3d 900.

Sec. 22.15.170. Selection of district judges and magistrates.

The governor shall fill a vacancy or appoint a successor to fill an impending vacancy in an office of district judge within 45 days after receiving nominations from the judicial council by appointing one of two or more persons nominated by the council for each actual or impending vacancy. The appointment to fill an impending vacancy becomes effective upon the actual occurrence of the vacancy.
The presiding judge of the superior court in each judicial district may appoint acting district judges as needed to serve at the pleasure of the presiding judge for a term of no longer than 12 months or until succeeded by an appointment made under (a) of this section, whichever first occurs. An acting district judge shall be a citizen of the United States and of the state, at least 21 years of age, but need not be licensed to practice law in any of the United States and need not have established Alaska residence before appointment. Service as an acting district judge is not considered a judicial service for the purposes of AS 22.25 unless the judge is subsequently appointed under (a) of this section.
The presiding judge of the superior court in each judicial district shall appoint the magistrates for the district court for the judicial district. Each magistrate serves at the pleasure of the presiding judge of the superior court in the judicial district for which appointed.
Vacancies for magistrates shall be filled in the same manner as appointments.
The office of a district court judge becomes vacant 90 days after the election at which the judge is rejected by a majority of those voting on the question or for which the judge fails to file a declaration of candidacy. Upon the occurrence of (1) an actual vacancy; (2) the certification of rejection following an election; or (3) the election following failure of a judge to file a declaration of candidacy, the judicial council shall meet within 90 days and submit to the governor the names of two or more persons qualified for the judicial office; except that this 90-day period may be extended by the council with the concurrence of the supreme court. In the event of an impending vacancy other than by reason of rejection or failure to file a declaration of candidacy, the council may meet at any time within the 90-day period immediately preceding the effective date of the vacancy and submit to the governor the names of two or more persons qualified for the judicial office.

History. (§ 12 ch 184 SLA 1959; am § 2 ch 138 SLA 1966; am § 2 ch 117 SLA 1967; am § 1 ch 162 SLA 1968; am § 1 ch 165 SLA 1968; am § 3 ch 160 SLA 1972; am §§ 1, 2 ch 194 SLA 1976; am § 4 ch 7 SLA 1985)

Cross references. —

For voting to approve or reject a district judge, see AS 15.35.100 — 15.35.130 . For provisions governing the judicial council, see art. IV, § 8, Constitution of the State of Alaska.

Notes to Decisions

Analysis

I. General Consideration
II. Selection Procedure
III. Magistrates

I.General Consideration

Construction. —

Plain meaning of Alaska Const. art. IV, § 7, AS 22.10.100(b) (regarding superior court judges), and this section (regarding district court judges) is that vacation is the mandatory consequence for a judge’s failure to file a declaration of candidacy. State v. Jeffery, 170 P.3d 226 (Alaska 2007).

Permanent intra-district transfer of district court judge. —

A permanent intra-district transfer of a district court judge by a judicial officer does not contravene the principle of separation of powers. Hornaday v. Rowland, 674 P.2d 1333 (Alaska 1983).

There is no constitutional power residing in the executive to designate the particular location where a district court judge will serve. Hornaday v. Rowland, 674 P.2d 1333 (Alaska 1983).

Stated in

Theodore v. State, 407 P.2d 182 (Alaska 1965).

Cited in

Stephens v. Hammersley, 550 P.2d 1268 (Alaska 1976); Oxereok v. State, 611 P.2d 913 (Alaska 1980); In re Landry, 157 P.3d 1049 (Alaska 2007).

II.Selection Procedure

Constitutionality. —

Section 3, ch. 117, SLA 1967, does not violate the provisions of Alaska Const., art. IV, § 4. Delahay v. State, 476 P.2d 908 (Alaska 1970), cert. denied, 402 U.S. 901, 91 S. Ct. 1381, 28 L. Ed. 2d 642 (U.S. 1971).

The selection procedure enacted into law by this section follows the constitutional scheme of Alaska Const., art. IV, § 5, for appointment of supreme court justices and superior court judges. Delahay v. State, 476 P.2d 908 (Alaska 1970), cert. denied, 402 U.S. 901, 91 S. Ct. 1381, 28 L. Ed. 2d 642 (U.S. 1971).

Declaration of candidacy. —

Where two judges filed their declaration of candidacy forms after the August 1 deadlines, they were not eligible to stand for retention, could not have their names placed on the ballot, and had to vacate their seats. State v. Jeffery, 170 P.3d 226 (Alaska 2007).

This section prescribes no particular form of appointment. Delahay v. State, 476 P.2d 908 (Alaska 1970), cert. denied, 402 U.S. 901, 91 S. Ct. 1381, 28 L. Ed. 2d 642 (U.S. 1971).

Nominating four persons for three positions. —

By nominating four persons for three positions, the judicial council complied with the requirements that they nominate at least two persons for each position; the governor could select from among all four nominees for the first position, from among three for the second, and between two for the third. Delahay v. State, 476 P.2d 908 (Alaska 1970), cert. denied, 402 U.S. 901, 91 S. Ct. 1381, 28 L. Ed. 2d 642 (U.S. 1971).

Appointment not place specific. —

Nowhere in subsection (a) of this section is it stated that the governor’s appointment is place specific. Hornaday v. Rowland, 674 P.2d 1333 (Alaska 1983).

III.Magistrates

Magistrate is “judge”. —

A magistrate is not merely “an assistant” to a district court judge, but presides with full authority over a court of limited jurisdiction, exercising the judicial power vested by Alaska Const., art. IV, § 1. Such a person is a “judge” within the meaning of Alaska Const., art. IV, § 4. Buckalew v. Holloway, 604 P.2d 240 (Alaska 1979).

Provision that magistrates serve at pleasure of presiding judge of superior court in the judicial district for which appointed does not conflict with the requirement of Alaska Const., art. IV, § 4 that judges be “selected . . . for terms prescribed by law,” since with respect to the accountability demanded in this requirement, service “at the pleasure of” constitutes a “term.” Buckalew v. Holloway, 604 P.2d 240 (Alaska 1979).

Since magistrates do not campaign, are never accountable to the voting public, and are not appointed by the governor, for a magistrate to serve “at the pleasure of” the presiding superior court judge does not impair the independence of the magistrate to adjudicate cases impartially. Buckalew v. Holloway, 604 P.2d 240 (Alaska 1979).

Providing that magistrates serve “at the pleasure of the presiding judge of the superior court” is clearly designed to achieve an ongoing guarantee of accountability. Buckalew v. Holloway, 604 P.2d 240 (Alaska 1979).

Even if Alaska Const., art. IV, § 10, which created a commission on judicial qualifications which could recommend to the supreme court that a justice or judge be suspended, removed from office, retired or censured, is applicable to magistrates, it does not restrict the legislature’s authority under Alaska Const., art. IV, § 4 to prescribe that magistrates shall serve at the pleasure of the presiding judge, since at the very least, the removal provisions of art. IV are supplementary to the removal procedure that defines the end of a judge’s term. Buckalew v. Holloway, 604 P.2d 240 (Alaska 1979).

Collateral references. —

Power of successor judge taking office during term time to vacate, etc., judgment entered by his predecessor. 11 ALR2d 1117.

Sec. 22.15.180. Oath of office.

Each district judge and magistrate, upon entering office, shall take and subscribe to an oath of office required of all officers under the constitution and any further oath or affirmation that may be prescribed by law.

History. (§ 13 ch 184 SLA 1959)

Cross references. —

For required oath of office, see art. XII, sec. 5, Constitution of the State of Alaska.

Sec. 22.15.190. Assignment of district judges and magistrates.

Each district judge and each magistrate shall hold court at times and places that are assigned by the presiding judge of the superior court of the district. The presiding judge in any judicial district may assign any district judge or magistrate within the district to serve temporarily in any other judicial districts. Rules and procedures for temporary assignment including the emergency situation where a superior court judge is not readily available to assign a district judge or magistrate shall be as prescribed by the supreme court.

History. (§ 14 ch 184 SLA 1959)

Notes to Decisions

Permanent intra-district transfers. —

AS 22.10.130 , this section, and the court rules concerning the powers of a presiding judge and the assignment of district court judges do not authorize a presiding judge’s permanent intra-district transfer of a judge. Hornaday v. Rowland, 674 P.2d 1333 (Alaska 1983).

Stated in

Theodore v. State, 407 P.2d 182 (Alaska 1965).

Sec. 22.15.195. Approval or rejection.

Each district court judge is subject to approval or rejection as provided in AS 15 (Alaska Election Code). The judicial council shall conduct an evaluation of each judge before the retention election and shall provide to the public information about the judge and may provide a recommendation regarding retention or rejection. The information and the recommendation shall be made public at least 60 days before the election. The judicial council shall also provide the information and any recommendation to the office of the lieutenant governor in time for publication in the election pamphlet under AS 15.58.050 . If a majority of those voting on the question rejects the candidacy of a judge, the rejected judge may not for a period of four years thereafter be appointed to fill any vacancy in the supreme court, court of appeals, superior court, or district courts of the state.

History. (§ 3 ch 87 SLA 1975; am § 13 ch 12 SLA 1980)

Cross references. —

For provisions governing the judicial council, see art. IV, § 8, Constitution of the State of Alaska.

Notes to Decisions

Constitutionality. —

This section is constitutional and does not limit the Alaska Judicial Council’s dissemination of new information. Alaska Judicial Council v. Kruse, 331 P.3d 375 (Alaska 2014).

Although a district court judge challenged the constitutionality of this section, the judge failed to meet her heavy burden demonstrating why the statute might be unconstitutional. Alaska Judicial Council v. Kruse, 331 P.3d 375 (Alaska 2014).

Declaration of candidacy. —

Dissemination of new information. —

Judicial council did not exceed its statutory authority by advertising or disseminating new information regarding a district court judge in the 60 days prior to an election, and the superior court erred in concluding otherwise. Alaska Judicial Council v. Kruse, 331 P.3d 375 (Alaska 2014).

Cited in

Stephens v. Hammersley, 550 P.2d 1268 (Alaska 1976); Hornaday v. Rowland, 674 P.2d 1333 (Alaska 1983).

Sec. 22.15.200. Incapacity. [Repealed, § 2 ch 213 SLA 1968.]

Sec. 22.15.205. Impeachment.

A district judge is subject to impeachment by the legislature for malfeasance or misfeasance in the performance of official duties. Impeachment must originate in the senate and must be approved by two-thirds vote of its members. The motion for impeachment must list fully the basis for the proceeding. Trial on impeachment shall be conducted by the house of representatives. A supreme court justice designated by the court shall preside at the trial. Concurrence of two-thirds of the members of the house is required for a judgment of impeachment. The judgment may not extend beyond removal from office, but does not prevent proceedings in the courts on the same or related charges.

History. (§ 9 ch 38 SLA 1987)

Cross references. —

For constitutional provision governing impeachment of judges and justices, see art. IV, sec. 12, Constitution of the State of Alaska.

Sec. 22.15.210. Restrictions.

A district judge while holding office may not practice law, nor engage in the conduct of any other profession, vocation, or business for profit or compensation, which conduct would interfere with the performance of the judicial duties of the judge, nor may a judge hold office in a political party, or hold any other office or position of profit under the United States, the state or its political subdivisions, except that, with the approval of the chief justice of the Alaska Supreme Court, a district judge may be appointed deputy clerk of the superior court and may hold the office of United States magistrate. A district judge who files for another elective public office other than delegate to a constitutional convention of this state or the United States forfeits the judicial position.
A magistrate, while holding office, may not hold office in a political party. A magistrate may hold any other office or position of profit under the United States, the state or its political subdivisions, or engage in the conduct of any profession or business that does not interfere with the performance of the judicial duties of the magistrate or require that the magistrate is repeatedly disqualified, on the magistrate’s own motion, from judicial service because of a conflict of interest caused thereby.

History. (§ 16 ch 184 SLA 1959; am § 2 ch 5 SLA 1960; am § 3 ch 30 SLA 1971; am § 14 ch 12 SLA 1980; am § 37 ch 50 SLA 1989)

Notes to Decisions

Quoted in

Begich v. Jefferson, 441 P.2d 27 (Alaska 1968).

Collateral references. —

Validity and application of statute regarding prohibition of judge from practicing law. 17 ALR4th 829.

Sec. 22.15.220. Compensation.

Except as provided in (e) of this section, the monthly base salary for each district court judge is $10,793.
Each magistrate shall receive annual compensation including geographic differential pay to be determined by the supreme court. Salary increases shall be determined on the basis of percentage of pay increase the legislature provides for state employees in the classified service. A magistrate’s annual compensation may be payable, at the option of the magistrate, either monthly in 12 equal installments or semi-monthly in 24 equal installments.
A salary disbursement may not be issued to a district judge or magistrate until the judge or magistrate has filed with the state officer designated to issue salary disbursements an affidavit that no matter referred to the judge or magistrate for opinion or decision has been uncompleted or undecided by the judge or magistrate for a period of more than six months.
In addition to the monthly salary, each district court judge is entitled to receive a geographic cost-of-living adjustment each year on $100,000 of the judge’s annual base salary for that year, based on the location of the primary office assignment. The commissioner of administration shall calculate the geographic cost-of-living adjustment based on the geographic pay differentials established under AS 39.27.020(a) . Retirement contributions and benefits shall be computed only on the monthly base salary not including the geographic cost-of-living adjustment.
Beginning July 1, 2006, if the monthly basic salary for Step E, Range 28, of the salary schedule set out in AS 39.27.011 increases, the monthly base salary of the judges of the district court shall increase by the same percentage. The increase takes effect when the salary increase under AS 39.27.011 takes effect and may be retroactive if consistent with the change to AS 39.27.011. The commissioner of administration shall, by regulation, establish the percentage at which the salary is increased and the increased salary amount.

History. (§ 17 ch 184 SLA 1959; am § 1 ch 66 SLA 1962; am § 1 ch 64 SLA 1963; am § 1 ch 137 SLA 1966; am § 5 ch 83 SLA 1967; am § 3 ch 101 SLA 1969; am § 3 ch 193 SLA 1970; am § 1 ch 78 SLA 1971; am § 1 ch 188 SLA 1972; am §§ 3, 4 ch 34 SLA 1974; am § 3 ch 205 SLA 1975; am §§ 4, 5 ch 148 SLA 1976; am § 1 ch 196 SLA 1976; am § 5 ch 263 SLA 1976; am § 6 ch 80 SLA 1978; am §§ 5, 20 ch 3 SLA 1980; am §§ 6, 7 ch 54 SLA 1990; am §§ 7, 8 ch 19 SLA 1991; am §§ 5, 6 ch 4 FSSLA 1996; am § 9 ch 175 SLA 2004; am §§ 9, 10 ch 51 SLA 2006; am § 3 ch 47 SLA 2013)

Cross references. —

For constitutional provision related to judges’ compensation, see art. IV, § 13, Constitution of the State of Alaska.

Administrative Code. —

For adjustments to judicial salaries, see 2 AAC 6.

Effect of amendments. —

The 2013 amendment, effective July 1, 2013, in (d), in the first sentence, substituted “each year on $100,000 of the judge’s annual base salary for that year” for “under AS 22.35.010 ”, added the second sentence.

Editor’s notes. —

Chapter 205, SLA 1975, which amended this section, was submitted to the voters by referendum and was rejected.

Under § 45, ch. 4, FSSLA 1996, the provisions of that act, which amended subsections (a) and (b), are not severable, notwithstanding AS 01.10.030 .

Notes to Decisions

Cited in

Kochutin v. State, 739 P.2d 170 (Alaska 1987).

Sec. 22.15.230. Additional compensation.

Subject to rule of the supreme court, a district judge or magistrate shall receive a per diem allowance and a transportation allowance commensurate with that authorized for other state employees.

History. (§ 18 ch 184 SLA 1959)

Sec. 22.15.240. Appeal.

Either party may appeal a judgment of the district court in a civil action to the superior court.
The defendant may appeal a judgment of conviction given in the district court in a criminal action to the superior court. When the judgment is given on a plea of guilty, an appeal may not be taken by the defendant except on the ground that a sentence of imprisonment of 90 days or more was excessive. The state’s right of appeal in criminal cases is limited by the prohibition against double jeopardy contained in the United States Constitution and the Alaska Constitution. The state may also appeal a sentence on the ground that it is too lenient. When a sentence is appealed on the ground that it is too lenient, the court may not increase the sentence but may express its approval or disapproval of the sentence and its reasons in a written opinion.
[Repealed, § 47 ch 14 SLA 1987.]
[Repealed, § 47 ch 14 SLA 1987.]

History. (§ 20 ch 184 SLA 1959; am § 3 ch 5 SLA 1960; am § 3 ch 117 SLA 1969; am § 15 ch 12 SLA 1980; am § 47 ch 14 SLA 1987; am § 5 ch 71 SLA 1993)

Cross references. —

For jurisdiction of court of appeals to review decision of the district court, see AS 22.07.020(c) . For jurisdiction of superior court, see AS 22.10.020 . For procedures on appeal, see Rules 601 — 612, Rules of Appellate Procedure.

Notes to Decisions

District court is not “court of record.” See Lopez v. Anchorage, 597 P.2d 146 (Alaska 1979).

Magistrates are “judges of other courts” within the meaning of Alaska Const., art. IV, § 4. Buckalew v. Holloway, 604 P.2d 240 (Alaska 1979).

This section and AS 22.10.020 provide basic and alternative methods of reviewing which were intended to simplify and expedite the handling of appeals. Lee v. State, 374 P.2d 868 (Alaska 1962).

Proper standard and scope of review. —

In recent cases, the supreme court has set forth the proper standard and scope of review to be applied by it in reviewing superior court sentences appealed to it pursuant to AS 12.55.120 . It is the intention of the legislature that the superior court apply an identical standard in reviewing sentences appealed to it pursuant to subsection (b) of this section. Galaktionoff v. State, 486 P.2d 919 (Alaska 1971).

In the exercise of its sentence appeal jurisdiction, the superior court’s scope of review is to be identical with that exercised by the supreme court under State v. Chaney, 777 P.2d 441 (Alaska 1970). The application of this standard to the superior court means that when a sentence is appealed to the superior court, the reviewing judge is to make his or her own examination of the record and must modify the sentence if he is convinced that the district court was clearly mistaken in imposing the sanction it did. Galaktionoff v. State, 486 P.2d 919 (Alaska 1971).

Trial de novo on appeal prior to 1980 amendment. —

For cases discussing power of superior court to grant new trial prior to 1980 amendment, which deleted “unless the superior court, in its discretion, grants a trial de novo, in whole or in part” from the end of subsection (c), see Lee v. State, 374 P.2d 868 (Alaska 1962); Kinsman v. State, 496 P.2d 63 (Alaska 1972); Lopez v. Anchorage, 597 P.2d 146 (Alaska 1979).

Court can hear argument of counsel. —

Superior court has power to entertain appropriate motions. Kinsman v. State, 496 P.2d 63 (Alaska 1972).

“Appropriate motions”. —

Rules may not be applied to work an injustice. —

Dismissal without warning. —

The superior court abused its discretion in ordering a dismissal without first warning the party that continued failure to comply with the ordered schedule for briefs would lead to dismissal. Kinsman v. State, 496 P.2d 63 (Alaska 1972).

Only crime of conviction considered on appeal. —

The superior court judge’s estimation of crimes committed but not charged cannot provide support for the affirmance of the sentence. Galaktionoff v. State, 486 P.2d 919 (Alaska 1971).

Undue consideration given district judge’s opportunity to observe defendant. —

Appeal from joint judgment. —

See Stanley v. Greenberg, 5 Alaska 178 (D. Alaska 1914).

Applied in

Hanrahan v. City of Anchorage, 377 P.2d 381 (Alaska 1962); State v. Marathon Oil Co., 528 P.2d 293 (Alaska 1974); Halligan v. State, 624 P.2d 281 (Alaska 1981).

Quoted in

Brandner v. Agre, 80 P.3d 691 (Alaska 2003); Ruerup v. Ruerup, 408 P.3d 1203 (Alaska 2018).

Cited in

Feichtinger v. State, 779 P.2d 344 (Alaska Ct. App. 1989).

Sec. 22.15.250. Disposition of fines.

When by law any fees, fines, forfeitures, or penalties are levied and collected by the district judge or magistrate, the proceeds and all other money collected shall be accounted for and transmitted to the administrative director of the Alaska Court System for transfer to the general fund of the state except as provided in AS 22.15.270 .

History. (§ 21 ch 184 SLA 1959; am § 24 ch 8 SLA 2011)

Effect of amendments. —

The 2011 amendment, effective May 10, 2011, substituted “Alaska Court System” for “judicial system.”

Sec. 22.15.260. Bond. [Repealed, § 1 ch 27 SLA 1995.]

Sec. 22.15.270. Retention of fines, etc., by political subdivisions.

All fines, penalties, and forfeitures resulting from violations of ordinances of political subdivisions shall be returned to the political subdivision whose ordinance is involved in the manner provided by rule of the supreme court. Fines, penalties, and forfeitures imposed after appeals accrue to the state, unless the appeal is prosecuted by the political subdivision.

History. (§ 23 ch 184 SLA 1959; am § 1 ch 219 SLA 1976)

Notes to Decisions

For cases construing this section prior to 1976 amendment, see Alexander v. Anchorage, 490 P.2d 910 (Alaska 1971); State v. Anchorage, 513 P.2d 1104 (Alaska 1973).

Sec. 22.15.310. [Renumbered as AS 22.20.410.]

Sec. 22.15.320. [Renumbered as AS 22.20.420.]

Sec. 22.15.330. [Renumbered as AS 22.20.430.]

Sec. 22.15.340. [Renumbered as AS 22.20.440.]

Sec. 22.15.350. Other duties of public administrator. [Repealed, § 18 ch 103 SLA 1996.]

Chapter 20. Judicial Officers, Employees, and Council; Attorneys.

Administrative Code. —

For leave rules, see 2 AAC 08.

Article 1. Judicial Officers.

Sec. 22.20.010. Judicial officer defined.

The term “judicial officer” means a supreme court justice, including the chief justice, a judge of the court of appeals, a judge of the superior court, a district judge, and a magistrate.

History. (§ 54-2-1 ACLA 1949; am § 16 ch 12 SLA 1980)

Notes to Decisions

Magistrates are “judges of other courts” within the meaning of Alaska Const., art. IV, § 4. Buckalew v. Holloway, 604 P.2d 240 (Alaska 1979).

Applied in

Larson v. State, 564 P.2d 365 (Alaska 1977).

Sec. 22.20.020. Disqualification of judicial officer for cause.

A judicial officer may not act in a matter in which
1. the judicial officer is a party;
2. the judicial officer is related to a party or a party’s attorney by consanguinity or affinity within the third degree;
3. the judicial officer is a material witness;
4. the judicial officer or the spouse of the judicial officer, individually or as a fiduciary, or a child of the judicial officer has a direct financial interest in the matter;
5. a party, except the state or a municipality of the state, has retained or been professionally counseled by the judicial officer as its attorney within two years preceding the assignment of the judicial officer to the matter;
6. the judicial officer has represented a person as attorney for the person against a party, except the state or a municipality of the state, in a matter within two years preceding the assignment of the judicial officer to the matter;
7. an attorney for a party has represented the judicial officer or a person against the judicial officer, either in the judicial officer’s public or private capacity, in a matter within two years preceding the filing of the action;
8. the law firm with which the judicial officer was associated in the practice of law within the two years preceding the filing of the action has been retained or has professionally counseled either party with respect to the matter;
9. the judicial officer feels that, for any reason, a fair and impartial decision cannot be given.
A judicial officer shall disclose, on the record, a reason for disqualification specified in (a) of this section at the commencement of a matter in which the judicial officer participates. The disqualifications specified in (a)(2), (a)(5), (a)(6), (a)(7), and (a)(8) of this section may be waived by the parties and are waived unless a party raises an objection.
If a judicial officer is disqualified on the officer’s own motion or consents to disqualification, the presiding judge of the district shall immediately transfer the action to another judge of that district to which the objections of the parties do not apply or are least applicable and if there is no such judge, the chief justice of the supreme court shall assign a judge for the hearing or trial of the action. If a judicial officer denies disqualification the question shall be heard and determined by another judge assigned for the purpose by the presiding judge of the next higher level of courts or, if none, by the other members of the supreme court. The hearing may be ex parte and without notice to the parties or judge.

History. (§ 54-2-1 ACLA 1949; am § 1 ch 48 SLA 1967; am §§ 10, 11 ch 38 SLA 1987; am § 38 ch 50 SLA 1989)

Cross references. —

For other statutory provisions concerning disqualification of judges, see AS 22.30.070(a) . For when a judge should disqualify himself or herself, see Canon 3C of the Code of Judicial Conduct.

Notes to Decisions

Analysis

I. General Consideration
II. Basis for Disqualification

I.General Consideration

Applicability. —

When an employee sought disqualification of the chair of the Alaska Workers’ Compensation Board due to the chair’s prior representation of an insurer involved in the employee’s case, this section did not apply. AS 44.64.050 applies to administrative law judges and hearing officers. Rosales v. Icicle Seafoods, Inc., 316 P.3d 580 (Alaska 2013), cert. denied, 572 U.S. 1004, 134 S. Ct. 1516, 188 L. Ed. 2d 452 (U.S. 2014).

Purpose. —

The purposes of paragraph (a)(5) are to ensure the actual impartiality of a judge and to eliminate any possible appearance or, suspicion of bias, thereby preserving the integrity of the judicial process and the confidence of the public. Keel v. State, 552 P.2d 155 (Alaska 1976).

Effect of judge’s former service as prosecutor. —

The fact that a judge formerly served the public in a prosecutorial function is not, by itself, sufficient cause to disqualify him from criminal prosecutions initiated by the state subsequent to his appointment to the bench. Keel v. State, 552 P.2d 155 (Alaska 1976).

Right of impartial tribunal is embodied in this section. Amidon v. State, 604 P.2d 575 (Alaska 1979).

Judicial criticism. —

While the trial judge was critical of defense counsel’s performance, she was also critical of the prosecutor’s performance and neither her remarks nor her rulings demonstrated partiality in favor of the State or bias against defendant or his lawyer such that the judge’s disqualification was not waivable as a matter of law. Gamechuk v. State, — P.3d — (Alaska Ct. App. July 1, 2015).

Fact that judge, as trier of fact in pretrial motion, found defendant’s testimony “not believable” does not in itself preclude his presiding at the subsequent trial. Coffey v. State, 585 P.2d 514 (Alaska 1978), modified on rehearing on other grounds, State v. Glass, 596 P.2d 10 (Alaska 1979).

Prior representation as prosecutor. —

Trial judge was disqualified from participating in the probation revocation proceedings from 2006 where she had represented the municipality in lieu of the prosecutor assigned to the cases. Johnson v. Municipality of Anchorage, 475 P.3d 1128 (Alaska Ct. App. 2020).

Recusal not required. —

Magistrate was not required to recuse himself based on the daughter’s claim that he was biased because he refused to grant her a fee waiver despite her low income, and that he improperly refused to appoint counsel for her, as neither fell within the reasons for recusal listed in this section. In re Estate of Bavilla, 343 P.3d 905 (Alaska 2015).

Superior court did not err in denying a father’s motion for recusal because the record did not support a contention that the trial judge could not be fair; while one of the superior court’s findings appeared to be erroneous, the controlling findings of fact were not, and as a whole, the factual findings did not reflect an abuse of discretion, much less any bias. Snider v. Snider, 357 P.3d 1180 (Alaska 2015).

Denial of the ex-husband's motions for recusal were properly denied because the record revealed neither actual bias nor the appearance of bias as the superior court judge did not decide in the ex-wife's favor 100% of the time; throughout the proceedings the superior court judge had taken many reasonable measures to deal equitably with the many post-divorce enforcement issues raised by both parties, including the ex-husband; throughout the proceedings, the superior court judge was careful to ensure that the ex-wife was served properly and able to participate in the proceedings, but those efforts did not indicate any bias against the ex-husband; and the superior court judge's actions did not create an appearance of impropriety. Millan v. Dahlmann, — P.3d — (Alaska Mar. 23, 2016) (memorandum decision).

Recusal of judge who had presided over a former inmate's criminal trial and who the former inmate had sued was not required in the inmate's suit against correctional officials because no statute or canon of judicial ethics required recusal under such circumstances. Wright v. Anding, 390 P.3d 1162 (Alaska 2017).

The superior court did not abuse its discretion in denying the wife's motion for recusal, for purposes of AS 22.20.020(a) ; although the judge was called to testify at the wife's criminal trial regarding her assault on the husband's attorney in front of the judge, the wife could not point to any aspect of the judge's factual testimony that would support a claim of bias. Johnson v. Johnson, 394 P.3d 598 (Alaska 2017).

Superior court's denial of a shareholder's motion for disqualification was affirmed where the court's rulings were supported by the record, the shareholder demonstrated no extrajudicial source of bias, and the superior court took affirmative measures to ensure that the shareholder, an attorney, understood the ramifications of his actions in choosing to walk out of the trial. Pederson v. Arctic Slope Reg'l Corp., 421 P.3d 58 (Alaska), cert. denied, — U.S. —, 139 S. Ct. 427, 202 L. Ed. 2d 327 (U.S. 2018).

Superior court properly upheld a city planning commission's approval of a conditional use permit to the owners of a bicycle shop because the city code specifically provided that setback reductions were granted by conditional use permit rather than a variance, the approval process and findings complied with applicable city code requirements and adequately protected the sole objecting resident's rights, the city planner's participation was entirely appropriate under the city code, and the judge's comments reflected opinions that might reasonably be formed in court, indicated no disqualifying bias, and nothing in the record suggested that the judge was actually biased against the objector. Griswold v. Homer Advisory Planning Comm'n, 484 P.3d 120 (Alaska 2021).

Neither Alaska's judicial disqualification statute nor the canons of judicial conduct require a judge's recusal from a matter simply because a party was also a party in a previous unrelated matter before the judge. Jessica P. v. Gary P., — P.3d — (Alaska Mar. 17, 2021) (memorandum decision).

Trial court judge did not err by not recusing for bias because the mother pointed to nothing in the record as support, she offered no evidence that the judge formed any opinion about her based on anything outside the litigation, and the trial court’s adverse rulings were not evidence of bias. Nina T. v. Michael P., — P.3d — (Alaska July 13, 2022).

“Party”. —

The term “party” did not include a judge’s nephew who was one of the defendant’s partners where the tort allegedly committed did not arise out of the partnership or involve the partnership property and the nephew’s interests could only be indirectly affected. Blake v. Gilbert, 702 P.2d 631 (Alaska 1985), overruled, Bibo v. Jeffrey's Restaurant, 770 P.2d 290 (Alaska 1989).

Hearing on motion. —

In a custody modification proceeding in which a party argued that the trial judge should have disqualified himself, this section did not entitle the party to the evidentiary hearing he requested. Heber v. Heber, 330 P.3d 926 (Alaska 2014).

District court erred in ruling on a petitioner's claims of judicial bias and the appearance of judicial bias without first resolving the disputed questions of material fact related to those claims where it improperly relied on the Alaska Commission on Judicial Conduct's resolution of petitioner's complaint. Haeg v. State, — P.3d — (Alaska Ct. App. Dec. 21, 2016) (memorandum decision).

“Presiding judge of the next higher level of courts” referred to in subsection (c) could appoint himself to consider a recusal motion. Feichtinger v. State, 779 P.2d 344 (Alaska Ct. App. 1989).

Defendant to request appointment of another judge for disqualification question. —

Under subsection (c) of this section, it is incumbent on defendant to request the chief justice, as presiding judge of the next higher court, to appoint another judge to determine the question of disqualification. Coffey v. State, 585 P.2d 514 (Alaska 1978).

Disqualification not required where party was suing the judge. —

Superior court did not abuse discretion by denying tenant’s motion to recuse a trial judge under this section because the record did not contain any specific evidence of bias; disqualification was not required simply because a party was separately suing the judge in the judge’s official capacity or based on the judge’s performance of official duties, as long as the judge reasonably believes he or she could be fair and impartial. DeNardo v. Maassen, 200 P.3d 305 (Alaska 2009).

Where no request was made to appoint another judge to determine the disqualification question, the fact that defendant was faced with imminent commencement of trial did not justify his failure to pursue his rights under subsection (c) of this section since the entrapment ruling which provided the basis for the allegation of bias was entered nearly three months before trial. Coffey v. State, 585 P.2d 514 (Alaska 1978).

Bias not demonstrated. —

Denying a continuance did not show bias because there was no indication the court gave unjustified importance to its own availability and convenience; the audio recording demonstrated that the trial judge dealt patiently, fairly, and courteously with both parties, and gave plaintiff extra opportunities to explain her claims and address the court’s reservations about her evidence. Greenway v. Heathcott, 294 P.3d 1056 (Alaska 2013).

There was no evidence that a superior court judge, who previously presided over two divorce cases in which a father's wife was a party, was biased against a mother because the judge was not forced to find that either the mother or the wife assaulted the child; it would not be contradictory or embarrassing for the judge to find that the wife committed domestic violence in one situation but not another. Jessica P. v. Gary P., — P.3d — (Alaska Mar. 17, 2021) (memorandum decision).

There was no evidence that a superior court judge was biased against a mother because the mother did not point to anything significant the judge did during the proceedings aside from ruling against her; the judge's factual findings were supported by the record, and any rulings against the mother were the result of opinions and attitudes the judge formed in court as a result of the evidence. Jessica P. v. Gary P., — P.3d — (Alaska Mar. 17, 2021) (memorandum decision).

Request not made to chief judge. —

Any error in denying a motion for disqualification under subsection (c) was not preserved for review because there was no request for the chief judge to assign the matter to a different judge. Kingery v. Barrett, 249 P.3d 275 (Alaska 2011).

Motion to recuse judges before whom case had never been assigned. —

Judge appointed to consider a challenge to another judge pursuant to subsection (c) did not err by concluding that a motion to recuse all trial court judges, including judges to whom the case had never been assigned and who therefore had never had the opportunity to exercise discretion, was improper. Feichtinger v. State, 779 P.2d 344 (Alaska Ct. App. 1989).

Wife’s request for reassignment on remand was premature because she could seek to disqualify the assigned judge on remand. Fernandez v. Fernandez, 312 P.3d 1098 (Alaska 2013).

Recusal not required. —

Trial judge was not disqualified from participating in appellant's three most recent cases based on her prior service as a municipal prosecutor as her service ended four years before her assignment to those cases. Johnson v. Municipality of Anchorage, 475 P.3d 1128 (Alaska Ct. App. 2020).

Right to appeal not waived. —

Appellant had not waived his right to challenge the denial of his disqualification motion on the merits given case law that afforded full appellate review to the underlying merits notwithstanding the failure to pursue immediate review under AS 22.20.020(c) . Johnson v. Municipality of Anchorage, 475 P.3d 1128 (Alaska Ct. App. 2020).

Law clerk. —

If a judge’s law clerk is actually biased for or against a party or an attorney, or if a law clerk has a substantial personal interest in the outcome of litigation, then the law clerk should not participate in any facet of the case. Vaska v. State, 955 P.2d 943 (Alaska Ct. App. 1998).

Where there was a possibility that a judge’s law clerk, because of her personal relationship with a state’s attorney, may have had an actual bias against a defendant in a criminal action, the case would be remanded for investigation. Vaska v. State, 955 P.2d 943 (Alaska Ct. App. 1998).

Scope of review. —

The sole legislative authority for disqualification of a trial judge, over the judge’s objection, is found in this section. Such a decision may only be overturned where there is an abuse of discretion. Feichtinger v. State, 779 P.2d 344 (Alaska Ct. App. 1989).

A judge’s decision not to disqualify himself will not be reversed unless it is plain that a fair-minded person could not rationally come to the same conclusion on the basis of known facts. Long v. Long, 816 P.2d 145 (Alaska 1991).

State as “person”. —

The word “person” in paragraph (a)(6) includes political entities such as the State of Alaska. Mustafoski v. State, 867 P.2d 824 (Alaska Ct. App. 1994).

Ability of judiciary to carry out oath of office.

Denying motion to recuse was not an abuse of discretion where there was no evidence to substantiate the husband's claim of association and ex parte contact between the wife's family and the judge, the judge's statements regarding the husband's litigation did not result from an extrajudicial source, but rather were based only on evidence presented during the trial, and nothing in the recusal statute required that a judge from a higher court review denial of recusal, only that review be assigned by such a judge, which was done. Greene v. Greene, — P.3d — (Alaska Oct. 24, 2018) (memorandum decision).

Applied in

Burrell v. Burrell, 696 P.2d 157 (Alaska 1984); Alaska Trams Corp. v. Alaska Elec. Light & Power, 743 P.2d 350 (Alaska 1987); Wasserman v. Bartholomew, 38 P.3d 1162 (Alaska 2002); Marcy v. Matanuska-Susitna Borough, 433 P.3d 1056 (Alaska 2018).

Quoted in

Wamser v. State, 587 P.2d 232 (Alaska 1978); De Nardo v. Michalski, 811 P.2d 315 (Alaska 1991); Jourdan v. Nationsbanc Mortg. Corp., 42 P.3d 1072 (Alaska 2002); Levi v. State, 433 P.3d 1137 (Alaska 2018).

Stated in

Bradley v. State, 16 P.3d 187 (Alaska Ct. App. 2001).

Cited in

Peterson v. State, 562 P.2d 1350 (Alaska 1977); Halligan v. State, 624 P.2d 281 (Alaska 1981); Deivert v. Oseira, 628 P.2d 575 (Alaska 1981); Standard Alaska Prod. Co. v. Schaible, 874 F.2d 624 (9th Cir. Alaska 1989); Saofaga v. State, 435 P.3d 993 (Alaska Ct. App. 2018).

II.Basis for Disqualification

Maintenance of appearance of impartiality. —

Paragraph (a)(9) of this section does not provide for disqualification where the sole concern is maintenance of the appearance of impartiality. However, in light of the importance of promoting public confidence in the integrity and impartiality of the judiciary, it would be well to permit disqualification under such circumstances. Amidon v. State, 604 P.2d 575 (Alaska 1979).

Judge erred in declining to recuse himself from a sentencing hearing after having presided over a prior juvenile waiver hearing based on the same conduct, where, considering the totality of the circumstances, fair-minded persons apprised of the objective facts would have concluded that the judge’s participation in the sentencing hearing created an appearance of partiality. Perotti v. State, 806 P.2d 325 (Alaska Ct. App. 1991).

Defendant’s claim that he was entitled to be sentenced by another judge, due to potentially biased comments by the court at sentencing and during the litigation of a post-sentencing motion, should be reviewed under the provisions of this section. Osceola v. State, — P.3d — (Alaska Ct. App. June 5, 2013) (memorandum decision).

Prior participation in case. —

Alaska's judicial disqualification statute precludes a judge from participating in a case if, before the judge's appointment to the bench, the judge appeared as a lawyer at a hearing in an earlier stage of the same case. When this issue is brought to the judge's attention, the judge is required to recuse herself unless the parties otherwise waive the judge's disqualification. Johnson v. Municipality of Anchorage, 475 P.3d 1128 (Alaska Ct. App. 2020).

De minimis interest. —

Disqualification is required when judge’s impartiality might be questioned; while this requires disqualification when judge or judge’s spouse has more than a de minimis interest in the outcome of a case, financial or otherwise, that does not mean that such de minimis interest can never give rise to reasonable question about judge’s impartiality. Mitchell v. Teck Cominco Alaska Inc., 193 P.3d 751 (Alaska 2008).

Judge’s prior representation of party. —

Trial judge was statutorily disqualified from presiding over defendant’s trial based on her prior representation of defendant in the same matter when she worked with the Public Defender Agency, but remand was required to determine why defendant did not inform his attorney of the judge’s prior role in the case and whether defendant would have wanted another judge if he had known he had that choice. Gamechuk v. State, — P.3d — (Alaska Ct. App. July 1, 2015) (memorandum decision).

Trial judge's representation of clients once linked to a club where defendant's crimes occurred did not require sua sponte disqualification, under AS 22.20.020(a)(5) or (9), because (1) the clients had no link to the case, (2) the representation occurred over two years earlier, and (3) the judge said the judge was unbiased. Cook v. State, — P.3d — (Alaska Ct. App. Nov. 9, 2016) (memorandum decision).

Review of decisions under paragraph (a)(9). —

The supreme court rejected the argument that the disqualification standards under paragraph (a)(9) are wholly subjective and therefore not amenable to appellate review. Clearly, review is contemplated on a challenge for cause grounded in bias. The supreme court’s duty to assure that judicial proceedings comply with due process mandates appellate scrutiny of allegations of bias. Coffey v. State, 585 P.2d 514 (Alaska 1978).

Since the initial determination under paragraph (a)(9) of this section has been placed in the discretion of the trial judge, that judge’s decision should be given substantial weight. When the judge does not recuse himself or herself, the decision should be reviewable on appeal only if it amounted to an abuse of discretion. Amidon v. State, 604 P.2d 575 (Alaska 1979).

A judge challenged under paragraph (a)(9) is independently required to consider not only actual impartiality, but also the appearance that is likely to flow from participation in the case at issue. Moreover, the need to consider the appearance of impartiality seems implicit in the language of paragraph (a)(9), for whenever it is predictable that an unmistakable appearance of bias will arise from a judge’s participation in a case, there will be “reason” for concluding that “a fair and impartial decision cannot be given.” Perotti v. State, 806 P.2d 325 (Alaska Ct. App. 1991).

Disqualification pursuant to (a)(6). —

Judge was disqualified pursuant to paragraph (a)(6) from participating in defendant’s case because judge, in his former role as district attorney, had personally prosecuted defendant on an unrelated matter within the previous two years. Mustafoski v. State, 867 P.2d 824 (Alaska Ct. App. 1994).

Recusal not required. —

No rule requires recusal or disqualification of a judge who previously presided over a case involving the party currently seeking disqualification or recusal. Pride v. Harris, 882 P.2d 381 (Alaska 1994).

Judge who had presided over an earlier phase of the case involving defendant properly denied defendant’s motion for recusal in a violation of a no-contact order case, where defendant offered no persuasive argument that he was prejudiced by the judge’s personal knowledge of his case. There was no significant possibility that the judge would be called as a witness to testify about the judge’s earlier order where the order stated on its face that defendant was to have no contact with the victim. Vickers v. State, 175 P.3d 1280 (Alaska Ct. App. 2008).

In a proceeding involving custody of children in need of aid, the judge’s past service as a member of the Citizens’ Advisory Committee to the Division of Family and Youth Services, and her participation in the parents’ divorce proceeding did not require recusal. R.J.M. v. State, 946 P.2d 855 (Alaska 1997).

Judge’s comments to the husband that husband hated women did not warrant recusal, as comments did not evidence bias against men and the husband was unable to provide an extrajudicial source of the bias or that the judge was unable to render a fair decision. Hanson v. Hanson, 36 P.3d 1181 (Alaska 2001).

Trial judge did not abuse his discretion in refusing to recuse himself in a divorce matter when a party, the husband, cited a law review article that mentioned the husband as the head of a group that was critical of a decision of the trial judge; by virtue of holding a judicial office, the trial judge was in a position to render decisions capable of sparking controversy and spirited public comment. Rodvik v. Rodvik, 151 P.3d 338 (Alaska 2006).

Tenant’s claim that the trial judge should have been disqualified pursuant to subsection (a) of this section failed where there was no basis in the record to claim an appearance of conflict or bias and the tenant’s personal attacks on the judge were unsupported. DeNardo v. Corneloup, 163 P.3d 956 (Alaska 2007).

Denial of the mother’s motion to recuse was not an abuse of discretion where the facts did not create an appearance of impropriety that would have required the judge to recuse herself. Peterson v. Swarthout, 214 P.3d 332 (Alaska 2009).

On appeal from a grant of summary judgment against him for claims based on medical treatment received, the prisoner made various references to judicial bias, but there was no persuasive argument that it was an abuse of discretion for the judge not to have recused himself. The arguments indicated the prisoner was merely displeased with the judge’s interpretations of the law and adverse rulings involving the exclusion of expert affidavits. Hymes v. DeRamus, 222 P.3d 874 (Alaska 2010).

Judge was not required to recuse himself where a sexual and physical assault victim’s sister lived in the judge’s neighborhood and was a friend of his wife. The judge had very limited contact with the sister and there was no evidence that the judge had discussed the case with the sister. Phillips v. State, 271 P.3d 457 (Alaska Ct. App. 2012).

In an insured’s suit challenging various actions taken by his insurer, recusal was not required on the basis of impartiality due to judge’s previous representation of insurance companies. Patterson v. Infinity Ins. Co., 303 P.3d 493 (Alaska 2013).

Trial judge did not abuse its discretion in denying the husband’s motion for disqualification, as none of the reasons the husband offered to prove the judge was biased fell within the bases for disqualification listed in this section, nor did a review of the record suggest that the judge misapplied the law regarding judicial disqualification. Martin v. Martin, — P.3d — (Alaska Dec. 16, 2015) (memorandum decision).

The ex-husband’s motions for recusal were properly denied because the record revealed neither actual bias nor the appearance of bias. The superior court judge did not decide in the ex-wife’s favor all of the time; throughout the proceedings the judge took reasonable measures to deal equitably with the many post-divorce enforcement issues raised by both parties. The judge was careful to ensure that the ex-wife was served properly and able to participate in the proceedings, but those efforts did not indicate any bias against the ex-husband, nor did not create an appearance of impropriety. Millan v. Dahlmann (Alaska Mar. 23, 2016) (memorandum decision).

Failure to recuse upheld. —

Where judge was listed by party as a trial witness, but the record failed to establish that party actually intended to call judge or that judge actually could have offered any material testimony, party’s claim that judge should have recused herself sua sponte was meritless. Noey v. Bledsoe, 978 P.2d 1264 (Alaska 1999).

Father's judicial recusal motion failed because (1) the court's findings explaining the court's decision acquired in the course of the proceedings showed no bias or inability to render a fair decision. Timothy W. v. Julia M., 403 P.3d 1095 (Alaska 2017).

Recusal resulting in trial delay. —

In a DWI case, defendant was not denied his speedy trial rights by a delay due to the recusals of three judges because defendant’s father was a bailiff where those recusals and the assignment of a judge from another area constituted “good cause.” Keller v. State, 84 P.3d 1010 (Alaska Ct. App. 2004).

Representation by judge of state or municipality not grounds for disqualification. —

In an action against police officers, the state and a city by a plaintiff who was mistakenly apprehended by police, who incorrectly believed he was a fleeing felon, the judge, who had done prior legal work for the city, was not required to disqualify himself or to disclose his prior representation. Wasserman v. Bartholomew, 923 P.2d 806 (Alaska 1996).

Ex parte communications. —

Judge who conducted hearings on a request for conditional release under AS 12.47.092 engaged in a series of improper ex parte communications with the Commissioner of the Department of Health and Social Services that were not authorized by law and required the judge’s disqualification from the case. State v. Dussault, 245 P.3d 436 (Alaska Ct. App. 2011).

It was not improper for a trial court to send a copy of the court's order denying a father's motion for recusal to opposing counsel in another case in which the father appeared before the trial court because (1) the motion was an ex parte communication not subject to an exception, as filing the motion without notifying counsel in the other case could have given the father a procedural or tactical advantage, and (2) if an exception permitted the motion's consideration ex parte, the court still had to take reasonable steps to notify all opposing counsel promptly of the substance of the communication and give them an opportunity to respond. Timothy W. v. Julia M., 403 P.3d 1095 (Alaska 2017).

Independent factual research by judge. —

Trial judge violated Canon 3B(12)of the Alaska Code of Judicial Conduct because he conducted and relied on independent research regarding a witness to reject defendant’s claims of ineffective assistance of counsel in a post-conviction proceeding; such conduct did not constitute taking judicial notice of facts as permitted by Evidence Rule 201 and it created an appearance of partiality requiring disqualification. Vent v. State, 288 P.3d 752 (Alaska Ct. App. 2012).

Judge’s exposure to inadmissible evidence does not necessarily result in prejudice warranting recusal. Likewise, the fact that a judge commits error in the course of a proceeding does not automatically give rise to an inference of actual bias. Perotti v. State, 806 P.2d 325 (Alaska Ct. App. 1991).

Collateral references. —

Relationship of judge to one who is party in an official or representative capacity as disqualification. 10 ALR2d 1307.

Mandamus as remedy to compel assertedly disqualified judge to recuse self or to certify his disqualification. 45 ALR2d 937; 56 ALR Fed. 494.

Relationship to attorney as disqualifying judge. 50 ALR2d 143.

Disqualification of judge in proceedings to punish contempt against or involving himself or court of which he is a member. 64 ALR2d 600; 37 ALR4th 1004; 3 ALR Fed. 420.

Prior representation or activity as attorney or counsel as disqualifying judge. 72 ALR2d 443, 16 ALR4th 550.

Time for asserting disqualification. 73 ALR2d 1238.

Intervenor’s right to disqualify judge. 92 A.L.R.2d 1110.

Disqualification of judge for bias against counsel for litigant. 23 ALR3d 1416.

Disqualification of original trial judge to sit on retrial after reversal or mistrial. 60 ALR3d 176.

Disqualification of judge by state, in criminal case, for bias or prejudice. 68 ALR3d 509.

Membership in fraternal or social club or order affected by a case as ground for disqualification of judge. 75 ALR3d 1021.

Prior representation or activity as prosecuting attorney as disqualifying judge from sitting or acting in criminal case. 16 ALR4th 550.

Waiver or loss of right to disqualify judge by participation in proceedings. 24 A.L.R.4th 870, 27 ALR4th 597.

Disqualification of judge because of assault or threat against him by party or person associated with party. 25 ALR4th 923.

Prior representation or activity as prosecuting attorney as disqualifying judge from sitting or acting in criminal case. 85 ALR5th 471.

Disqualification of judge for having decided different case against litigant — State cases. 85 ALR5th 547.

Laws governing judicial recusal or disqualification in state proceeding as violating federal or state constitution. 91 ALR5th 437.

Disqualification of judge under 28 U.S.C.A. § 455(b)(4), providing for disqualification where judge has financial or other interest in proceeding. 163 ALR Fed. 575.

Sec. 22.20.022. Peremptory disqualification of a judge.

If a party or a party’s attorney in a district court action or a superior court action, civil or criminal, files an affidavit alleging under oath the belief that a fair and impartial trial cannot be obtained, the presiding district court or superior court judge, respectively, shall at once, and without requiring proof, assign the action to another judge of the appropriate court in that district, or if there is none, the chief justice of the supreme court shall assign a judge for the hearing or trial of the action. The affidavit must contain a statement that it is made in good faith and not for the purpose of delay.
A judge or court may not punish a person for contempt for making, filing, or presenting the affidavit provided for in this section, or a motion founded on the affidavit.
The affidavit shall be filed within five days after the case is at issue upon a question of fact, or within five days after the issue is assigned to a judge, whichever event occurs later, unless good cause is shown for the failure to file it within that time.
A party or a party’s attorney may not file more than one affidavit under this section in an action and no more than two affidavits in an action.

History. (§ 2 ch 48 SLA 1967; am § 6 ch 143 SLA 1968; am § 1 ch 116 SLA 1971)

Cross references. —

For court rules on change of judge as a matter of right, see Rule 42(c), Alaska Rules of Civil Procedure and Rule 25(d), Alaska Rules of Civil Procedure. In this regard Rule 42(c) and Rule 25(d) both provide that a notice of change of judge “shall neither specify grounds nor be accompanied by an affidavit.”

Editor’s notes. —

Section 1(c), ch. 18, SLA 1991 states that it “was not the intent of the legislature in enacting AS 22.20.022 to allow the disqualification of a judge, if the judge has no financial interest in the outcome of the case other than that of a taxpayer or a permanent fund dividend recipient.”

Notes to Decisions

Analysis

I. General Consideration
II. Application of Right to Peremptory Challenge
III. Procedure

I.General Consideration

Constitutionality. —

A litigant is entitled to a fair hearing before a tribunal which is disinterested, impartial and unbiased, and a statute which affords that right by providing some means for showing bias or lack of impartiality does not offend the principle of separation of powers of government. Channel Flying v. Bernhardt, 451 P.2d 570 (Alaska 1969).

This section represents a permissible accommodation of the due process rights of individual litigants and the ability of judges and the judicial system to function efficiently. Hornaday v. Rowland, 674 P.2d 1333 (Alaska 1983).

Where no affidavit is necessary, a judge may be disqualified for good cause, bad cause, or no cause at all. But where an affidavit is required, the assertion of bias or prejudice under oath is at least some showing or an imputation of the fact that the judge is disqualified, and this is sufficient to save the statute from successful attack on constitutional grounds. Channel Flying v. Bernhardt, 451 P.2d 570 (Alaska 1969).

This section is not constitutionally invalid as an attempt to usurp the rule-making powers of this court insofar as it provides for a peremptory disqualification of a judge. Channel Flying v. Bernhardt, 451 P.2d 570 (Alaska 1969); Gieffels v. State, 552 P.2d 661 (Alaska 1976), overruled in part, Miller v. State, 617 P.2d 516 (Alaska 1980); Wamser v. State, 587 P.2d 232 (Alaska 1978).

This section does not merely regulate procedure. With or without it the particular action in court takes the same course. The statute rather creates and defines a right — the right to have a fair trial before an unbiased and impartial judge. This is something more than merely prescribing a method of enforcing a right. The main subject matter of the statute is substantive in nature and was within the province of the legislature to deal with. Channel Flying v. Bernhardt, 451 P.2d 570 (Alaska 1969).

Since the supreme court has broadened the peremption rights embodied in this section by promulgating Civ. R. 42(c) and Crim. R. 25(d), which permit peremption without submission of an affidavit or specification of grounds, it is difficult to conceive of how this section could be deemed to violate the separation of powers doctrine by intruding upon judicial policy and rule-making prerogatives. Hornaday v. Rowland, 674 P.2d 1333 (Alaska 1983).

Legislative history. —

See Peterson v. State, 562 P.2d 1350 (Alaska 1977).

This section reflects fundamental tenet of Alaska system of justice that every litigant shall have his rights adjudicated by a judge who is disinterested, impartial, and unbiased. In re G.K., 497 P.2d 914 (Alaska 1972).

This section codifies a fundamental tenet of the Alaska system of justice, the right to a hearing by a fair and impartial judge. Kvasnikoff v. State, 535 P.2d 464 (Alaska 1975).

This section is designed to further the substantive right of a litigant to a fair trial before an unbiased judge. Riley v. State, 608 P.2d 27 (Alaska 1980).

Due process does not require right to automatically disqualify judge. Halligan v. State, 624 P.2d 281 (Alaska 1981).

This section does nothing more than provide a reasonable method for assuring fair trial for all litigants. Channel Flying v. Bernhardt, 451 P.2d 570 (Alaska 1969); Gieffels v. State, 552 P.2d 661 (Alaska 1976), overruled in part, Miller v. State, 617 P.2d 516 (Alaska 1980).

Only right created and defined by this section is to have a fair trial before an unbiased and impartial judge. A party may avail himself of that right by timely filing an affidavit stating that he believes he cannot obtain a fair and impartial trial before a particular judge. The statute does not in any manner purport to give the right to the other party, who does not claim that the assigned judge is biased or prejudiced, to have the case tried by that judge. Roberts v. State, 458 P.2d 340 (Alaska 1969).

Statutory right. —

This section creates and defines a right, the right to have a fair trial before an unbiased and impartial judge. In re G.K., 497 P.2d 914 (Alaska 1972); Gieffels v. State, 552 P.2d 661 (Alaska 1976), overruled in part, Miller v. State, 617 P.2d 516 (Alaska 1980).

This section, upon enactment by the legislature, created a substantive right to disqualify a judge by the exercise of a peremptory challenge. Padie v. State, 566 P.2d 1024 (Alaska 1977).

In seeking to assure that parties receive trials before judges whom they consider to be fair and unbiased, this section and Crim. R. 25 provide an unusual right to a change of judge. In the absence of a challenge for cause, no such right existed at common law, and it is not afforded in the federal courts or in many states in the absence of a showing of factual bias. Wamser v. State, 587 P.2d 232 (Alaska 1978).

While the means by which the right to a peremptory challenge is to be exercised have been held to be procedural matters solely within the rule-making powers of the supreme court, the right itself is derived from this section. Halligan v. State, 624 P.2d 281 (Alaska 1981).

Right derives from this section, not Crim. R. 25(d). —

The right to a peremptory challenge exists by virtue of this section. Crim. R. 25(d) merely regulates the exercise of that right. Halligan v. State, 624 P.2d 281 (Alaska 1981).

And this section controls. —

In determining whether a party was entitled to a peremptory challenge, the language of this section controls. Halligan v. State, 624 P.2d 281 (Alaska 1981).

Ability of judiciary to carry out oath of office. —

The peremptory challenge statute does not hinder the ability of the judiciary to fulfill its obligation to maintain its independence since although the small size of a judicial district may permit lawyers to obtain some “power” over the single judge, it also places the bar in a position of dependence upon that same person. Hornaday v. Rowland, 674 P.2d 1333 (Alaska 1983).

Damage to district court judge’s reputation as a result of the operation of the peremptory challenge statute was not deprivation of a sufficient property interest to afford due process protection. Hornaday v. Rowland, 674 P.2d 1333 (Alaska 1983).

Applied in

In re E.M.D., 490 P.2d 658 (Alaska 1971); McRae v. State, 909 P.2d 1079 (Alaska Ct. App. 1996).

Stated in

Nichols v. Nichols, 516 P.2d 732 (Alaska 1973); Dean v. Firor, 681 P.2d 321 (Alaska 1984).

Cited in

White v. State, 457 P.2d 650 (Alaska 1969); Keel v. State, 552 P.2d 155 (Alaska 1976); Deivert v. Oseira, 628 P.2d 575 (Alaska 1981); Ortberg v. State, 751 P.2d 1368 (Alaska Ct. App. 1988); Black v. State, 76 P.3d 417 (Alaska Ct. App. 2003).

II.Application of Right to Peremptory Challenge

Implication from statutory usage of phrase “civil or criminal” is that it is meant to be inclusive of all trial court actions. AS 01.10.060 (1) defines “action” as including “any matter or proceeding in a court, civil or criminal.” AS 22.10.020 vests the superior court with original jurisdiction in “all civil and criminal matters.” In re G.K., 497 P.2d 914 (Alaska 1972).

This section is applicable to children’s proceedings. —

This section is applicable to children’s proceedings.In re G.K., 497 P.2d 914 (Alaska 1972).

Nothing in the legislative history of this section indicates any legislative desire to exclude children’s proceedings from its effect. In re G.K., 497 P.2d 914 (Alaska 1972).

The geography of Alaska and the peculiar demands of an effective exercise of juvenile jurisdiction do not forbid the application of the peremptory challenge procedure to superior court judges when handling juvenile matters. In re G.K., 497 P.2d 914 (Alaska 1972).

To deny children the benefit of the important statutory right under this section is to consign them to a limbo beyond the protection afforded all other litigants merely because they are children. It would require them to stand before a judge whose impartiality they question, yet who has the power to commit them to an institution where they may be lawfully detained until their twentieth birthday (AS 47.10.080 ). In re G.K., 497 P.2d 914 (Alaska 1972).

Which are “civil” in nature. —

Juvenile proceedings are “civil” in nature for the purpose of peremptory disqualification statutes. In re G.K., 497 P.2d 914 (Alaska 1972).

Almost universal is the characterization of juvenile proceedings as “civil,” rather than “criminal,” in nature. In re G.K., 497 P.2d 914 (Alaska 1972).

Judge assigning case to himself. —

Superior court judge’s assignment of defendant’s case to himself for trial in the superior court while case was still in district court could not extinguish defendant’s right to a peremptory challenge upon the entry of a plea in superior court. Watt v. State, 61 P.3d 446 (Alaska Ct. App. 2003).

No waiver until judge assigned. —

A party cannot waive the right to peremptorily disqualify a judge until the judge has been permanently assigned to the case. The plaintiff did not waive his peremptory challenge by failing to object to the state’s motion to reassign the judge. He cannot have known that the judge would be the permanently assigned judge until she was assigned and until any objection to her assignment was ruled upon. Beilgard v. State, 896 P.2d 230 (Alaska 1995).

No peremptory challenge as to subsequent hearings in original proceedings. —

Peremptory challenge of a judge cannot be entertained as to subsequent hearings which are a part or a continuation of the original proceedings. Kvasnikoff v. State, 535 P.2d 464 (Alaska 1975).

Where petitioner failed to challenge the judge prior to trial or the first probation revocation hearing, and only filed the requisite affidavit prior to the second probation revocation hearing, petitioner’s peremptory challenge was ineffective because it was not timely filed within the requirements of this section and Crim. R. 25(d). Kvasnikoff v. State, 535 P.2d 464 (Alaska 1975).

CINA and guardianship proceedings. —

When there exists an ongoing child in need of aid (CINA) proceeding, any attempts to appoint a guardian, whether filed pursuant to AS 47.10.110 or AS 13.26.101 et seq., must be considered and treated, in all respects, as part of the original CINA case. Father’s right to disqualify a judge was not reinvigorated by the act of raising a guardianship issue in a CINA case, and his participation in the original case without objection to the trial judge waived his right to make a subsequent challenge. Terry S. v. State, 168 P.3d 489 (Alaska 2007).

Where two proceedings involve same defendant and necessity of proving same facts and issues, a judge who was preempted in the prior proceeding is automatically disqualified from presiding “at any proceeding against the defendant in which those same charges are at issue.” Gieffels v. State, 552 P.2d 661 (Alaska 1976), overruled in part, Miller v. State, 617 P.2d 516 (Alaska 1980).

A probation revocation hearing and a criminal prosecution may not be technically one and the same “action” within the meaning of this section. But where the probation revocation hearing and the criminal prosecution of defendant involved identical issues, thus involving the same defendant and the necessity of proving the same facts, the exchange of assignments between the two judges originally assigned to handle those two proceedings frustrated the manifest legislative intent of this section and was, accordingly, error. McKinnon v. State, 526 P.2d 18 (Alaska 1974).

No waiver for acts under dismissed action. —

Since the original case is a separate action from the refiled suit, any motions made in the original case cannot be used to establish waiver in the refiled case. Additionally, the actions emphasized by the state are substantively different from those which will constitute waiver under the statute. None of the motions made in the original case concerned the merits of the case: there was no pretrial conference or substantive motion made. Thus, the plaintiff did nothing which would necessitate a finding that he had waived his right to peremptorily disqualify the judge. Beilgard v. State, 896 P.2d 230 (Alaska 1995).

Action taken by disqualified judge at arraignment. —

See Gieffels v. State, 552 P.2d 661 (Alaska 1976), overruled in part, Miller v. State, 617 P.2d 516 (Alaska 1980).

Multiple defendants. —

There was no abuse of discretion in decision by a judge, to whom case was reassigned when one defendant peremptorily challenged the originally assigned judge, denying a second defendant’s motion to peremptorily challenge the substitute judge or in refusing to allow defendants to show reason why they should be allowed additional peremptory challenges, notwithstanding failure to require defendants to consult with each other before the peremptory challenge was exercised as the nonmoving defendant had numerous opportunities to make specific allegations concerning asserted conflicts that might have led to additional challenges. Murdock v. State, 664 P.2d 589 (Alaska Ct. App. 1983).

Right of intervenor in action. —

Nothing in this section or Civil R. 42(c) prevented an intervenor, who entered a case after an initial judgment and appeal, from exercising the right to peremptorily change judges. Mundt v. Northwest Explorations, 963 P.2d 265 (Alaska 1998).

Criminal contempt arising out of domestic relations actions. —

Action charging a defendant with criminal contempt was ancillary to and a continuation of an underlying domestic relations action; therefore, when the defendant waived his right to challenge the judge in the domestic relations proceeding, he waived the right to peremptorily challenge the judge in the ancillary criminal contempt proceeding. Webber v. Webber, 706 P.2d 329 (Alaska Ct. App. 1985).

Appellate review of lower court’s ruling. —

The legislature did not intend the right to a peremptory challenge to apply where the only action contemplated is appellate review of a ruling or decision of a subordinate court, on the record from the court below. Halligan v. State, 624 P.2d 281 (Alaska 1981).

A superior court judge assigned to review the district court’s decision to suppress certain evidence was not subject to peremptory disqualification under this section and Crim. R. 25(d), which provides for change of judge as a matter of right in all state courts, since there was no indication that any factfinding proceedings were contemplated at the superior court level. Halligan v. State, 624 P.2d 281 (Alaska 1981).

Appeal from final administrative determination of Alaska Commercial Fisheries Entry Commission. —

The right to peremptorily challenge a judge exists in an appeal to the superior court from a final administrative determination of the Alaska Commercial Fisheries Entry Commission. Commercial Fisheries Entry Comm'n v. Polushkin, 628 P.2d 6 (Alaska 1981).

III.Procedure

This section encompasses both procedural and substantive matters. Gieffels v. State, 552 P.2d 661 (Alaska 1976), overruled in part, Miller v. State, 617 P.2d 516 (Alaska 1980); Wamser v. State, 587 P.2d 232 (Alaska 1978).

Procedure is subject to court’s rule-making powers. —

The procedure to be followed in implementing the substantive right created by this section is subject to the rule-making powers of the court. Gieffels v. State, 552 P.2d 661 (Alaska 1976), overruled in part, Miller v. State, 617 P.2d 516 (Alaska 1980); Wamser v. State, 587 P.2d 232 (Alaska 1978).

Although the legislature has the power to create the right to a fair trial before an unbiased judge, and the right to preempt a judge without requiring actual proof of bias or interest, it has very limited power to provide for the means by which that preemption right may be exercised. Gieffels v. State, 552 P.2d 661 (Alaska 1976), overruled in part, Miller v. State, 617 P.2d 516 (Alaska 1980).

While recognizing the legislature’s authority to create the right to disqualify a judge by peremptory challenge under this section, the procedure to be followed in implementing that right is subject to the rule-making power vested in the supreme court by Alaska Const., art. IV, § 15. Padie v. State, 566 P.2d 1024 (Alaska 1977).

Denial of defendant's peremptory challenge to a judge as being untimely, when under a standing order of the Anchorage superior court litigants such as defendant who were notified of a judicial assignment at a Tuesday trial call were required to file any peremptory challenge by Thursday at noon, was inappropriate because the standing order, which provided for a shorter time period to file the challenge than the time period provided in the Alaska Rules of Criminal Procedure, had not undergone the specified administrative review procedures. Beier v. State, 413 P.3d 1245 (Alaska Ct. App. 2018).

But such rules may not be basis for interference with substantive rights. —

Although the means or methods by which a peremptory challenge is to be raised and recognized in the course of judicial proceedings is usually a procedural matter solely within the rule-making powers of this court, such procedural regulations cannot be the basis of any action that would interfere with the substantive right created by legislative enactment. Gieffels v. State, 552 P.2d 661 (Alaska 1976), overruled in part, Miller v. State, 617 P.2d 516 (Alaska 1980).

This section and Crim. R. 25(d) do not create independent rights to challenge a judge peremptorily. Main v. State, 668 P.2d 868 (Alaska Ct. App. 1983).

Crim. R. 25(d) is intended to be a procedural implementation of the substantive right to a peremptory challenge created by this section. Main v. State, 668 P.2d 868 (Alaska Ct. App. 1983).

Procedure in civil actions set out in Civ. R. 42(c). —

Civil R. 42(c) established the procedure to be followed in implementing the substantive right created by this section. Commercial Fisheries Entry Comm'n v. Polushkin, 628 P.2d 6 (Alaska 1981).

The procedure for peremptory challenges of a judge assigned to a case in civil litigation is set forth in Civ. R. 42(c). Schmid v. Miller, 619 P.2d 1 (Alaska 1980).

This section creates the “substantive right” to a peremptory challenge, but Alaska Civ. R. 42(c) is the sole provision in a civil action which may be consulted in determining whether the peremptory right was properly exercised and in determining the effect of the peremption of the procedural and administrative functions of the court system. Tunley v. Municipality of Anchorage Sch. Dist., 631 P.2d 67 (Alaska 1980), amended, — P.2d — (Alaska 1981).

Subsection (c) time period is procedural. —

The five-day time period established in subsection (c) is a procedural component of the statutory right to peremptory challenge of a judge created by subsection (a) since the basic purpose of the legislation is to enable litigants to challenge a judge assigned to their case without making a showing of actual bias and the five-day period does not appear to be a central part of that right; it is an incidental, procedural provision. Main v. State, 668 P.2d 868 (Alaska Ct. App. 1983).

Facially, this section and Crim. R. 25(d)(2) appear to set forth different time requirements. Kvasnikoff v. State, 535 P.2d 464 (Alaska 1975).

Crim. R. 25(d) liberalizes method of exercising preemptive right. —

Crim. R. 25(d) regulates the means or method by which a party’s peremptory challenge takes effect. The major changes found in Crim. R. 25(d) provide for different time limitations, do away with the need for the filing of an affidavit alleging the inability to obtain a fair and impartial trial and specify the procedure to be followed when a presiding judge is challenged. These changes, for the most part, in no way impair the substantive right to a fair trial before an unbiased judge created by this section; in fact, Crim. R. 25(d) generally liberalizes the method by which a party may exercise a peremptory challenge. Gieffels v. State, 552 P.2d 661 (Alaska 1976), overruled in part, Miller v. State, 617 P.2d 516 (Alaska 1980).

Extent to which Crim. R. 25(d) supersedes section. —

Insofar as Crim. R. 25(d) regulates only the procedural aspects of the peremptory right created by this section, and to the extent that the rule does not infringe upon the substantive right created by statute, the provisions of Crim. R. 25(d) supersede the legislative enactment. Gieffels v. State, 552 P.2d 661 (Alaska 1976), overruled in part, Miller v. State, 617 P.2d 516 (Alaska 1980); Wamser v. State, 587 P.2d 232 (Alaska 1978).

The procedures for exercising the right of peremptory disqualification in this section are governed in criminal matters solely by Crim. R. 25. Morgan v. State, 635 P.2d 472 (Alaska 1981).

To the extent that the waiver provisions of Crim. R. 25(d)(5) conflict with the five-day period of subsection (c), the provisions of the rule, and not those of the statute, must prevail. Main v. State, 668 P.2d 868 (Alaska Ct. App. 1983).

And is only rule to be consulted as to whether preemptive right properly exercised. —

Crim. R. 25(d), relating to change of judge as a matter of right, is the sole provision which may be consulted in determining whether the preemptive right was properly exercised and the effect of the preemption on the procedural and administrative functions of the court system. Gieffels v. State, 552 P.2d 661 (Alaska 1976), overruled in part, Miller v. State, 617 P.2d 516 (Alaska 1980); Padie v. State, 566 P.2d 1024 (Alaska 1977); Wamser v. State, 587 P.2d 232 (Alaska 1978).

It is not manifest that adherence to time requirement of Crim. R. 25(d) will work injustice. Wamser v. State, 587 P.2d 232 (Alaska 1978).

As to effect of subsequent promulgation of Crim. R. 25(d) on Channel Flying v. Bernhardt, 451 P.2d 570 (Alaska 1969), see Gieffels v. State, 552 P.2d 661 (Alaska 1976), overruled in part, Miller v. State, 617 P.2d 516 (Alaska 1980).

Proper interpretation of Crim. R. 25(d)(2) in conjunction with subsection (c) requires that the later date of the two given in the statute be controlling. Morgan v. State, 635 P.2d 472 (Alaska 1981).

Obvious purpose of five-day requirement is to avoid a waste of judicial time which would result if an affidavit of disqualification were not filed until the day of the trial, because this would mean that the case would have to be continued until another judge could be assigned, and the disqualified judge would probably not be ready at that time to start the trial of another action. Roberts v. State, 458 P.2d 340 (Alaska 1969); Hartford Accident & Indem. Co. v. State, 498 P.2d 274 (Alaska 1972).

The granting of the five-day period is to allow a party or his attorney an opportunity to investigate the judge to whom the case is assigned and, if necessary, file the requisite affidavit for disqualification, thus avoiding the waste of judicial time which would result if an affidavit for disqualification were not filed until the date of trial, because this would mean that the case would have to be continued until another judge could be assigned and the disqualified judge would not be ready at that time to start the trial of another action. Pope v. State, 480 P.2d 697 (Alaska 1971); McCracken v. State, 521 P.2d 499 (Alaska 1974).

The time limit for the exercise of the peremptory challenge is imposed to avoid the delay, calendaring disruption and waste of judicial time which would result if the notice were not filed until the date of trial. Riley v. State, 608 P.2d 27 (Alaska 1980).

Effect of filing timely affidavit. —

Once the affidavit is filed, the judge involved is without power or jurisdiction to take any further action in the proceeding. Pope v. State, 480 P.2d 697 (Alaska 1971).

If petitioners’ affidavit is timely filed, the judge involved is without power or jurisdiction to proceed further with the action. Hartford Accident & Indem. Co. v. State, 498 P.2d 274 (Alaska 1972).

Under this section the filing of a timely affidavit in compliance with the statute operates to bar the judge from proceeding any further in the matter other than transferring the case to another judge. Hartford Accident & Indem. Co. v. State, 498 P.2d 274 (Alaska 1972).

If a motion for peremptory disqualification was timely filed, then the trial judge erred in not automatically excluding himself from sitting on the case. McCracken v. State, 521 P.2d 499 (Alaska 1974).

Discretion if motion not timely filed. —

Subsection (c) gives the court discretion to grant a peremptory disqualification motion that is not timely filed if the court finds that good cause has been offered for the failure to timely file. McCracken v. State, 521 P.2d 499 (Alaska 1974).

Timely challenge. —

Where a plaintiff had notice as to the specific judge who would be hearing the case only when consolidation with another similar action was ordered, which consolidation plaintiffs of both cases opposed, and when assignment to the judge in question was ordered and the plaintiff objecting to the judge filed a peremptory challenge to the judge the day after being notified that the case was effectively reassigned to the judge by the consolidation, the challenge was timely under Civ. R. 42(c)(3). Tunley v. Municipality of Anchorage Sch. Dist., 631 P.2d 67 (Alaska 1980), amended, — P.2d — (Alaska 1981).

Motion not timely. —

When a party filed his motion nearly two weeks after he received notice that the case had been assigned to a certain judge, the party was not entitled to change judges as a matter of right. Levi v. State, 433 P.3d 1137 (Alaska 2018).

Failure to waive time requirements held not abuse of discretion. —

See Wamser v. State, 587 P.2d 232 (Alaska 1978).

Allegation of breakdown in attorney-client dialogue properly held not to satisfy good cause requirement of subsection (c). —

See McCracken v. State, 521 P.2d 499 (Alaska 1974).

Defense and state entitled to one peremptory challenge each. —

Under Crim. R. 25 and this section, the defense and the state are each entitled to only one peremptory challenge. Peterson v. State, 562 P.2d 1350 (Alaska 1977).

The “no more than two affidavits in an action” phrase in subsection (d) was added to limit peremptory challenges to two in total for any action. Peterson v. State, 562 P.2d 1350 (Alaska 1977).

Where there are several defendants in a criminal trial, each individual defendant is not entitled to one peremptory challenge, but rather the defense as a whole is entitled, as a matter of right, to but one peremptory challenge. Hawley v. State, 614 P.2d 1349 (Alaska 1980).

Although each side is entitled to only one peremptory challenge, Crim. R. 25(d)(1) does provide that where several defendants cannot agree on the judge to hear the case, the trial court, in the interest of justice, can give more than one change. However, where no showing of divergent interests or other cause was made requiring the judge, in the interests of justice, to grant additional challenges, there is no constitutional right to a peremptory challenge; and to allow each defendant a peremptory challenge would cause great delays and trial scheduling problems, it was not an abuse of discretion to limit the defense to one peremptory challenge. Hawley v. State, 614 P.2d 1349 (Alaska 1980).

Consolidation of actions. —

Where a plaintiff in a civil action has the suit consolidated with another similar action, the plaintiff has the right to a peremptory challenge of the judge hearing the consolidated suit, since the consolidation should not serve to deprive the plaintiff of this substantive right. Tunley v. Municipality of Anchorage Sch. Dist., 631 P.2d 67 (Alaska 1980), amended, — P.2d — (Alaska 1981).

What constitutes peremptory challenge. —

A notice of change of judge under Civ. R. 42(c) constitutes a peremptory challenge of a judge as authorized by the legislature in this section. Priest v. Lindig, 591 P.2d 1299 (Alaska 1979).

This section allows challenge to be effective without requiring actual proof of bias or interest. Gieffels v. State, 552 P.2d 661 (Alaska 1976), overruled in part, Miller v. State, 617 P.2d 516 (Alaska 1980).

Reassignment. —

There is no reason to treat a defendant whose case is quickly reassigned to another superior court judge differently from a defendant whose case reassignment is slightly delayed. Neither the fact that a criminal case is transferred from the superior court to the district court nor the timing of that transfer entitles a party to an additional challenge under AS 22.20.022(c) . McMullen v. State, 426 P.3d 1168 (Alaska Ct. App. 2018).

Waiver of right. —

Since the challenge could have been exercised at any time within five days of reassignment, even during trial, the failure to do so was a waiver of the right to a peremptory challenge to the trial judge, and it was not error for the court to refuse to grant a continuance of five days to permit appellant to ponder this matter at length. Pope v. State, 480 P.2d 697 (Alaska 1971).

The right to peremptorily challenge a judge is circumscribed by certain time requirements. If a party does not file a timely affidavit requesting disqualification, then the party is deemed to have waived the statutory right to peremptorily challenge a judge. Kvasnikoff v. State, 535 P.2d 464 (Alaska 1975).

The requirement in Civ. R. 42(c)(4) of a knowing waiver of the right to change a particular judge requires that waiver can be found only where the requisite participation occurs after the party is informed that the judge before whom he or she is appearing is the judge permanently assigned to hear the case or is assigned for trial. Any other interpretation would be inconsistent with the apparent reason for this scienter requirement and with the due process right to a fair and impartial trial judge which Alaska’s peremptory challenge provisions are designed to liberally ensure. Tunley v. Municipality of Anchorage Sch. Dist., 631 P.2d 67 (Alaska 1980), amended, — P.2d — (Alaska 1981).

Waiver under Civ. R. 42(c)(4)(i) and Crim. R. 25(d)(5) can be found only where the requisite participation occurs after the party is informed that the judge before whom he or she is appearing is the judge permanently assigned to hear the case or is assigned for trial, and where no party was aware during the respective pretrial stages which judge was assigned to try the case, to require a party to employ a peremptory challenge against a judge who may or may not preside at trial would defeat the purpose of this section. Smith v. State, 616 P.2d 863 (Alaska 1980).

Even though matters involving the merits of a case were heard by a given judge, that fact alone does not constitute a knowing waiver pursuant to Civ. R. 42(c)(4)(i) of a party’s right to challenge the judge because at the time the proceedings were held the party had not been advised that the trial of the case was assigned to that judge. Archer v. Eidelson, 616 P.2d 17 (Alaska 1980).

Husband waived any right to file a change of judge request where he had notice of the fact that the j would be presiding over the trial no later than a trial call, yet he failed to timely file a change of judge request, a complaint letter to the presiding judge far exceeded the five-day deadline, and he had participated in the trial. Greene v. Greene, — P.3d — (Alaska Oct. 24, 2018) (memorandum decision).

“Assigned to a judge”. —

An action is not “assigned to a judge” within the meaning of subsection (c) until it has been assigned to a particular judge and a reasonable attempt has been made to notify the parties before the court of that assignment. Hartford Accident & Indem. Co. v. State, 498 P.2d 274 (Alaska 1972).

Assignment of cases in multi-judge court is administrative matter committed to the discretion of the presiding judge. Hartford Accident & Indem. Co. v. State, 498 P.2d 274 (Alaska 1972).

Notice of case assignment. —

A method should be devised and utilized to make assignment of cases to judges sufficiently in advance of trial or hearing, with notice of the assignment being given to the parties, so that the parties can be afforded their rights under this section without interfering with the scheduled hearing or trial dates. Pope v. State, 480 P.2d 697 (Alaska 1971); Hartford Accident & Indem. Co. v. State, 498 P.2d 274 (Alaska 1972).

Notice to child of judge assigned. —

If the child is given early notice of the superior court judge assigned to his case, the filing of an affidavit pursuant to this section should not unduly delay the children’s proceedings. In re G.K., 497 P.2d 914 (Alaska 1972).

Appeal from denial of motion. —

Given the special nature of the disqualification right, designed to insure all litigants a fair trial before an impartial and unbiased judge, and the unnecessary expense of the trial which both the state and the defendant are put through when an erroneous denial of such a motion is made, it is appropriate to allow a defendant to preserve this right by filing an appeal from the denial of a change of judge motion. Morgan v. State, 635 P.2d 472 (Alaska 1981).

Procedure on appeal. —

The procedures provided in Appellate Rule 216 govern expedited appeals from denials of peremptory challenges in criminal cases. Morgan v. State, 635 P.2d 472 (Alaska 1981).

Collateral references. —

Disqualification of judge in proceedings to punish contempt against or involving himself or court of which he is a member. 64 ALR2d 600; 37 ALR4th 1004; 3 ALR Fed. 420.

Time for asserting disqualification. 73 ALR2d 1238.

Laws governing judicial recusal or disqualification in state proceeding as violating federal or state constitution. 91 ALR5th 437.

Sec. 22.20.030. Power of judicial officers.

A judicial officer may

preserve and enforce order in the immediate presence of the court and in the proceedings before the court, when engaged in the performance of a duty imposed by law on the judicial officer;
compel obedience to the lawful orders of the court, as provided by law;
compel the attendance of persons to testify in a pending proceeding in the cases and manner provided by law;
administer oaths in a proceeding pending before the court and in all other cases where it may be necessary in the exercise of the powers and the performance of the duties of the judicial officer;
take and certify the proof and acknowledgment of a conveyance of real property, or any other written instrument authorized or required to be proved or acknowledged;
take and certify the acknowledgment of satisfaction of a judgment in any court;
take and certify an affidavit or deposition to be used in any court of justice or other tribunal of the state.

History. (§§ 54-2-3, 54-2-5, 54-2-6 ACLA 1949)

Notes to Decisions

Power to punish for contempt is highest exercise of judicial power. United States v. Pratt, 3 Alaska 400 (D. Alaska 1907), aff'd, Leber v. United States, 170 F. 881, 3 Alaska Fed. 366 (9th Cir. Alaska 1909).

It is not incident to mere exercise of judicial functions. United States v. Pratt, 3 Alaska 400 (D. Alaska 1907), aff'd, Leber v. United States, 170 F. 881, 3 Alaska Fed. 366 (9th Cir. Alaska 1909).

But must be expressly conferred. —

The power to punish for contempt cannot be upheld upon inferences and implications, but must be expressly conferred by law. United States v. Pratt, 3 Alaska 400 (D. Alaska 1907), aff'd, Leber v. United States, 170 F. 881, 3 Alaska Fed. 366 (9th Cir. Alaska 1909).

Hence, notary has no power to punish for disobedience. —

A notary public sitting as an examiner to take the deposition of a witness in Alaska is not a court, and has no power to punish a witness who disobeys a subpoena to appear and give testimony. United States v. Pratt, 3 Alaska 400 (D. Alaska 1907), aff'd, Leber v. United States, 170 F. 881, 3 Alaska Fed. 366 (9th Cir. Alaska 1909).

But must report such disobedience to court. —

United States v. Pratt, 3 Alaska 400 (D. Alaska 1907), aff'd, Leber v. United States, 170 F. 881, 3 Alaska Fed. 366 (9th Cir. Alaska 1909).

Stated in

Larson v. State, 564 P.2d 365 (Alaska 1977).

Collateral references. —

Inherent power of court to compel appropriation or expenditure of funds for judicial purposes. 59 ALR3d 569.

Manner or extent of examination of witnesses by trial judge. 6 ALR4th 951.

Sec. 22.20.035. Powers of judicial employees.

The clerk of a court, and a deputy clerk designated by order of a court, may exercise the powers of judicial officers specified in AS 22.20.030 (4)-(7), and other powers authorized by law.

History. (§ 1 ch 23 SLA 1967)

Notes to Decisions

Deputy clerk of district court qualifies as officer at common law. Larson v. State, 564 P.2d 365 (Alaska 1977).

The description of the duties and powers of a deputy clerk of a district court, including his responsibility as the custodian of the records of criminal proceedings and his power to collect money from the public, indicates a public trust was reposed in him. Larson v. State, 564 P.2d 365 (Alaska 1977).

The position of deputy clerk involves a delegation of some of the judicial functions of government and, therefore, possesses the primary characteristic of a public office. Larson v. State, 564 P.2d 365 (Alaska 1977).

Cited in

Beckley v. State, 443 P.2d 51 (Alaska 1968).

Sec. 22.20.037. Employment of judicial employees.

Judicial employees shall be employed subject to classification and wage plans based on the merit principle and adapted to the special needs of the judiciary, as determined by the administrative director of the Alaska Court System. Except as otherwise provided by law, all employees of the Alaska Court System and the judicial council are subject to the general state laws regarding leave, retirement, and travel.
This section does not deprive employees of the judiciary of the right to participate in the state employees retirement system, a group insurance plan, or any other program, benefits, or rights provided by law or personnel rule for state employees in the classified service.
The administrative director of the Alaska Court System shall conduct a salary survey annually to ensure that employees of the Alaska Court System receive salaries consistent with those paid to employees in the classified and partially exempt state service.
The administrative director of the Alaska Court System shall file a travel and compensation report with the legislature by January 31 of each year. The report must contain detailed information for the previous calendar year of the salaries, per diem, travel expenses, relocation expenses, and any additional allowances for
1. each justice of the supreme court;
2. each judge of the court of appeals; and
3. the administrative director of the Alaska Court System.

History. (§ 2 ch 78 SLA 1971; am § 1 ch 83 SLA 1999; am §§ 25 — 27 ch 8 SLA 2011)

Administrative Code. —

For leave rules, see 2 AAC 8.

Effect of amendments. —

The 2011 amendment, effective May 10, 2011, substituted “the Alaska Court System” for “courts” in the first sentence in (a) and near the beginning of (c), substituted “Alaska Court System” for “court system” near the beginning and at the end of (d), and made a stylistic change.

Opinions of attorney general. —

Application to judicial and permanent legislative employees of the general laws of the state covering leave, including the Department of Administration’s regulation on terminal leave, does not infringe upon the power of the judicial and legislative branches to supervise, hire, or discharge personnel, or the power to determine employee salaries. April 9, 1985 Op. Att’y Gen.

Article 2. Attorneys.

Sec. 22.20.040. Appearance.

An action or proceeding may be prosecuted or defended by a party in person or by attorney. However,
1. the United States shall appear by an attorney in all cases; and
2. a corporation, either public or private, shall appear by an attorney in all cases unless an exception to the corporation’s appearance by an attorney has been explicitly made by law.
When a party appears by attorney, the written proceedings shall be in the name of the attorney, who is the sole representative of the client as between the client and the adverse party.

History. (§ 54-6-1 ACLA 1949; am § 3 ch 99 SLA 1992)

Notes to Decisions

Assignment of claims held inappropriate. —

Corporation could not assign its claims against the Alaska Department of Revenue to the corporation’s business owners after the superior court dismissed the claims because the corporation was unrepresented to counsel; the assignment of claims was an inappropriate attempt to circumvent paragraph (a)(2) of this section. Roberts v. State, 162 P.3d 1214 (Alaska 2007), cert. denied, 552 U.S. 1101, 128 S. Ct. 924, 169 L. Ed. 2d 732 (U.S. 2008).

Representation of corporate party.—

Because the members of a limited liability company could not represent the corporate successor to the company in litigation, the procedural leniency otherwise afforded to self-represented litigants was not available so that the members' appeal could not be construed as an appeal on behalf of successor. Daggett v. Feeney, 397 P.3d 297 (Alaska 2017).

Essence of the rule is that, unlike individual persons, corporations do not have the right of self-representation, but AS 22.20.040 does not require an incorporated law firm to obtain outside counsel to represent it in court, however advisable that may be; the statute simply means a lay person cannot represent the law firm. Boiko v. Kapolchok, 426 P.3d 868 (Alaska 2018).

Applied in

Pister v. State, Dep't of Revenue, 354 P.3d 357 (Alaska 2015).

Quoted in

Murat v. F/V Shelikof Strait, 793 P.2d 69 (Alaska 1990); Lane v. Ballot, 330 P.3d 338 (Alaska 2014); Cozzetti v. Madrid, — P.3d — (Alaska Dec. 13, 2017).

Collateral references. —

4 Am. Jur. 2d, Appearance, § 1 et seq.

6 C.J.S., Appearances, § 1 et seq.

Propriety and effect of law students acting as counsel in court suit. 3 ALR4th 358.

Power of court to change counsel appointed for indigent, against objections of accused and original counsel. 3 ALR4th 1227.

Sec. 22.20.050. Authority to bind client, receive money or property, and give discharge.

An attorney may
1. bind the attorney’s client in any of the proceedings in an action or proceeding by agreement filed with the clerk or entered upon the journal of the court, and not otherwise;
2. receive money or property claimed by the client in an action or proceeding during its pendency, or within three years after judgment, and, upon the payment or delivery of it, discharge the claim or acknowledge satisfaction of the judgment.
However, this section does not prevent a party from employing a new attorney to issue execution upon a judgment, or to take the other proceedings prescribed by law for its enforcement, and when the party does so the authority of the former attorney ceases.

History. (§ 54-6-2 ACLA 1949)

Revisor’s notes. —

In 1993, the word “to” was deleted preceding “discharge” in (a)(2) of this section to correct a manifest error in the 1962 codification.

Notes to Decisions

Proceedings are within exclusive control of attorney. —

All the proceedings in court to enforce the remedy, to bring the claim, demand, cause of action, or subject matter of the suit to hearing, trial, determination, judgment, and execution, are within the exclusive control of the attorney. Bonnifield v. Thorp, 71 F. 924, 1 Alaska Fed. 414 (D. Alaska 1896), dismissed, 83 F. 1022, 1 Alaska Fed. 530 (9th Cir. Alaska 1898).

And may not be impaired without client’s consent. —

The cause of action, the claim or demand sued upon, the subject matter of the litigation, are within the exclusive control of the client; and the attorney may not impair, compromise, settle, surrender, or destroy them without the client’s consent. Bonnifield v. Thorp, 71 F. 924, 1 Alaska Fed. 414 (D. Alaska 1896), dismissed, 83 F. 1022, 1 Alaska Fed. 530 (9th Cir. Alaska 1898).

Attorney may admit facts and consent to judgment. —

In the absence of evidence to the contrary, an attorney has power on the trial of a cause in open court to admit facts and consent to judgment. Harniska v. Dolph, 133 F. 158, 2 Alaska Fed. 304 (9th Cir. Alaska 1904).

Attorney may admit facts and consent to judgment. —

Fact of appellant’s conviction was not genuinely disputed, as his trial counsel stipulated to the fact of conviction when the judge asked his assistant to retrieve the criminal case file. Lane v. Ballot, 330 P.3d 338 (Alaska 2014).

Quoted in

Alaska-Canadian Corp. v. Ancow Corp., 434 P.2d 534 (Alaska 1967).

Cited in

State v. Aleut Corp., 541 P.2d 730 (Alaska 1975); Saxton v. Splettstoezer, 557 P.2d 1126 (Alaska 1976).

Sec. 22.20.060. Appearance of attorney without authority.

If it is alleged by a party for whom an attorney appears that the attorney does so without authority, and the allegation is verified by the affidavit of the party, the court may, if it finds the allegation true, at any stage of the proceedings, relieve the party for whom the attorney has assumed to appear from the consequences of the attorney’s act.

History. (§ 54-6-3 ACLA 1949)

Notes to Decisions

Presumption of authority. —

An appearance in court by an attorney for a client carries with it the presumption of authority to appear. Bonnifield v. Thorp, 71 F. 924, 1 Alaska Fed. 414 (D. Alaska 1896), dismissed, 83 F. 1022, 1 Alaska Fed. 530 (9th Cir. Alaska 1898).

Employment of counsel where resolution authorized institution of legal proceedings. —

Where a resolution adopted at a stockholders’ meeting authorized the institution of legal proceedings, the general manager of the corporation was clearly authorized to act thereon, regardless of whether the general manager was such de facto or de jure, and the employment of counsel by the general manager was valid. Port Chilkoot Co. v. Heinmiller, 12 Alaska 200 (D. Alaska 1948).

Cited in

In re Person's Estate, 7 Alaska 626 (D. Alaska 1927); State v. Aleut Corp., 541 P.2d 730 (Alaska 1975).

Sec. 22.20.070. Requiring proof of authority.

The court may, on motion of either party, and on showing reasonable grounds therefor, require the attorney for an adverse party to produce or prove the authority under which the attorney appears, and until the attorney does so may stay all proceedings by the attorney on behalf of the party for whom the attorney assumes to appear.

History. (§ 54-6-4 ACLA 1949)

Notes to Decisions

Presumption of authority. —

Not overcome by affidavit where counteraffidavit asserting authority presented. —

The presumption of authority is not overcome by affidavit of opposing counsel, challenging authority, if the attorney appearing presents counteraffidavit, asserting authority. Bonnifield v. Thorp, 71 F. 924, 1 Alaska Fed. 414 (D. Alaska 1896), dismissed, 83 F. 1022, 1 Alaska Fed. 530 (9th Cir. Alaska 1898).

Burden of proof. —

The burden of proof rests upon the person who denies the authority under which an attorney appears. Bonnifield v. Thorp, 71 F. 924, 1 Alaska Fed. 414 (D. Alaska 1896), dismissed, 83 F. 1022, 1 Alaska Fed. 530 (9th Cir. Alaska 1898).

Cited in

State v. Aleut Corp., 541 P.2d 730 (Alaska 1975).

Sec. 22.20.080. Compelling attorney to deliver over money or papers.

When an attorney refuses to deliver over money or papers to a person from or for whom the attorney has received them in the course of professional employment, whether in a judicial proceeding or not, a court may, by order, require the attorney to do so within a specified time or show cause why punishment for a contempt should not be imposed on the attorney.

History. (§ 54-6-7 ACLA 1949)

Notes to Decisions

This section is addressed to attorney-client relationship. In re Estate of Jackson, 129 F. Supp. 541, 15 Alaska 516 (D. Alaska 1955).

It may be invoked only by applying for order to show cause. In re Estate of Jackson, 129 F. Supp. 541, 15 Alaska 516 (D. Alaska 1955).

Stated in

Miller v. Paul, 615 P.2d 615 (Alaska 1980).

Sec. 22.20.090. Court order to deliver over money or papers.

If an attorney claims a lien upon the money or papers under AS 34.35.430 , the court, in making an order under AS 22.20.080 , shall

impose, as a condition of making the order, that the client give security, in form and amount to be directed, to satisfy the lien when determined in an action;
summarily inquire into the facts on which the claim of a lien is founded, and determine it; or
direct the trial of the controversy by a jury, or refer it, and upon the verdict or report determine it as in other cases.

History. (§ 54-6-8 ACLA 1949)

Notes to Decisions

Security for release of files. —

In cases where the attorney did not terminate the relation, the client cannot compel the attorney, or former attorney, to deliver up papers or documents on which the attorney has a retaining lien, unless the client pays the amount due the attorney, or furnishes adequate security for the payment of what may be due or subsequently found to be due the attorney. Miller v. Paul, 615 P.2d 615 (Alaska 1980).

Where the adequacy of the lien is not contested, courts have provided for a lien against the eventual proceeds of a lawsuit as security for turning over files in an attorney’s possession. Miller v. Paul, 615 P.2d 615 (Alaska 1980).

In determining what constitutes adequate security for relinquishment, the trial court should consider a number of factors and set forth the basis for the decision. Miller v. Paul, 615 P.2d 615 (Alaska 1980).

Factors to be weighed in determining what security, if any, should be required for release of files should include, among others (a) whether there was just cause for discharging the attorney; (b) whether the attorney initiated the withdrawal; (c) the client’s ability to provide security or to pay the fee; (d) the importance of the files to the client; (e) the ethical obligations of an attorney; (f) whether the fee is disputed, and, if so, the reasonable amount of any lien to be charged; (g) whether the amount due the attorney is contingent or fixed; and (h) whether part of the sum due is for costs advanced by the attorney which may justify reimbursement before ordering release of the files. Miller v. Paul, 615 P.2d 615 (Alaska 1980).

A trial court may exercise its discretion in determining whether it is just to require a client’s home to be encumbered as a condition for release of an attorney’s files under certain circumstances. However, only in an extreme case would the requirement of encumbering a home be justified. Under AS 09.35.090 (now see AS 09.38.010 ), the Alaska legislature has, with certain exceptions, exempted homesteads from judicial sale, evincing a policy in favor of preserving rights to a homestead. Miller v. Paul, 615 P.2d 615 (Alaska 1980).

Quoted in

In re Sea Catch, Inc., 36 B.R. 226 (Bankr. D. Alaska 1983).

Article 3. Commissioner of Public Safety.

Administrative Code. —

For civilian process servers, see 13 AAC 67.

Sec. 22.20.100. Duty of the commissioner in the supreme court.

The commissioner is the executive officer of the supreme court and shall serve and execute all process issued by the supreme court or a justice of the supreme court, and shall attend the supreme court, and has the authority necessary for the execution of these duties.

History. (§ 2 ch 95 SLA 1960; am § 21 ch 71 SLA 1972)

Administrative Code. —

For civilian process server application and licensing requirements, see 13 AAC 67, art. 1.

For examination procedures, see 13 AAC 67, art. 2.

For standards of professional conduct, see 13 AAC 67, art. 3.

For disciplinary guidelines, see 13 AAC 67, art. 4.

For administrative hearings, see 13 AAC 67, art. 5.

For state employees as process servers, see 13 AAC 67, art. 6.

Sec. 22.20.110. Duty of the commissioner in the court of appeals, the superior court, and district courts.

When required by the supreme court, and except as otherwise provided in AS 18.66.160 , the commissioner shall serve and execute all process issued by the court of appeals, the superior court, and the district courts; attend to and wait upon grand and petit juries; maintain order; attend the sessions of the courts; and exercise the power and perform the duties concerning all matters within the jurisdiction of the courts as may be assigned. The commissioner is the executive officer of the court of appeals, the superior court, and district courts.

History. (§ 3 ch 95 SLA 1960; am § 17 ch 12 SLA 1980; am § 2 ch 27 SLA 1986; am § 37 ch 64 SLA 1996)

Administrative Code. —

For civilian process server application and licensing requirements, see 13 AAC 67, art. 1.

For examination procedures, see 13 AAC 67, art. 2.

For standards of professional conduct, see 13 AAC 67, art. 3.

For disciplinary guidelines, see 13 AAC 67, art. 4.

For administrative hearings, see 13 AAC 67, art. 5.

For state employees as process servers, see 13 AAC 67, art. 6.

Effect of amendments. —

The 2018 amendment, effective June 19, 2018, added (s).

Sec. 22.20.120. General authority and duty of the commissioner.

The authority necessary for the lawful performance of the duties of execution of service of process, seizure and detention of property, the sale of property forfeited or levied upon, and arrest of persons, in connection with civil matters, is vested in the commissioner. Any court of the state issuing any process may direct the process for execution of service to the commissioner or the designee of the commissioner.

History. (§ 4 ch 95 SLA 1960; am § 22 ch 71 SLA 1972)

Administrative Code. —

For civilian process server application and licensing requirements, see 13 AAC 67, art. 1.

For examination procedures, see 13 AAC 67, art. 2.

For standards of professional conduct, see 13 AAC 67, art. 3.

For disciplinary guidelines, see 13 AAC 67, art. 4.

For administrative hearings, see 13 AAC 67, art. 5.

For state employees as process servers, see 13 AAC 67, art. 6.

Sec. 22.20.130. Assistance for commissioner.

The commissioner shall be assisted in the execution of the authority and duty vested by AS 22.20.100 — 22.20.140 by members of the division of state troopers or Alaska state constabulary who the commissioner designates. The commissioner is responsible on official bond for the acts of all persons designated under this subsection. The persons designated under this subsection have the same authority and duty granted to the commissioner and are subject to orders of the courts of the state in the same manner as the commissioner. They are responsible to the commissioner and to the courts, and shall be executive officers of the courts. In order to be designated under this section, the commissioner may require the person to submit the person’s fingerprints and the fees required under AS 12.62.160 for criminal justice information and a national criminal history record check. The commissioner may obtain a report of criminal justice information under AS 12.62 and a national criminal history record check under AS 12.62.400 .
The commissioner has the responsibility of providing sufficient personnel to effectively execute the authority and duty vested by AS 22.20.100 — 22.20.140 , and shall adopt the necessary regulations within the Department of Public Safety for the efficient direction, control, and discipline of the members designated by the commissioner under this section.

History. (§ 5 ch 95 SLA 1960; am § 10 ch 117 SLA 1968; am § 16 ch 79 SLA 2004)

Sec. 22.20.140. Definitions.

In AS 22.20.100 — 22.20.140 ,

“commissioner” means the commissioner of public safety;
“district courts” includes sessions presided over by a magistrate;
“process” means any summons, writ, process, order, or subpoena.

History. (§ 1 ch 95 SLA 1960; am § 34 ch 8 SLA 1971)

Article 4. Judicial Council.

Cross references. —

For constitutional provisions governing the judicial council, see art. IV, sec. 8, Constitution of the State of Alaska. For collection of settlement information by the Judicial Council, see AS 09.68.130 .

Sec. 22.20.200. DNA evidence information.

The judicial council shall periodically review and distribute information relevant to the technical, legal, and scientific use of deoxyribonucleic acid (DNA) profiles in criminal proceedings to

judges and magistrates;
the Department of Law;
the Public Defender Agency;
the office of public advocacy.

History. (§ 1 ch 10 SLA 1995)

Sec. 22.20.210. Staff and support for criminal justice commission.

History. (§ 35 ch 83 SLA 2014, as amended by § 177 ch 36 SLA 2016)

Sec. 22.20.220. Prison inmate characteristics information.

The judicial council shall design and implement a project for the purposes of studying risk factors related to criminal activity, informing the legislature’s policy and funding decisions related to primary crime prevention, and improving primary crime prevention strategies in the state. Under the project, the Department of Corrections shall transmit information about offenders sentenced to serve terms of incarceration of 30 days or more, and the judicial council shall analyze the information and provide to the legislature the judicial council’s conclusions and recommendations in the report required under (b) of this section. The judicial council shall, in consultation with the Justice Center at the University of Alaska, the Department of Corrections, and other relevant entities or state agencies, create a list of the types of information and inmate characteristics the Department of Corrections shall collect for the project and may revise the list when necessary to meet project goals. The information may include data relating to adverse childhood experiences, mental health and substance abuse history, education, income, and employment of inmates. The Department of Corrections shall adopt policies establishing procedures for collecting the information identified in the list required under this subsection and providing the information to the judicial council. The procedures may provide for the collection of the information as part of the risk assessment program established under AS 33.30.011(a)(7) . Requirements for collection of information under this subsection terminate on July 1, 2024. In this subsection, “primary crime prevention” means intervention programs and strategies designed to reduce crime risk factors among the general population and prevent crime from happening.
The judicial council shall prepare an annual report summarizing the information collected and analyzed under (a) of this section. The judicial council shall
1. provide a summary in the form of tables, charts, graphs, or other formats that are easily understood;
2. include a review of the data and the judicial council’s interpretations, findings, and conclusions related to the information collected;
3. describe any changes in the types of information collected during the preceding fiscal year;
4. make the report required under this subsection available to the public; the judicial council may not publish or present individually identifiable information relating to an inmate;
5. include, when possible, information from the previous fiscal year, comparisons to previous fiscal years, and cumulative information;
6. not later than February 14 of each year, submit the report to the senate secretary and the chief clerk of the house of representatives and notify the legislature that the report is available; and
7. present the summary and analysis to the legislature within 10 days after the convening of the next regular session of the legislature following the submission of the report.

History. (§ 41 ch 1 4SSLA 2017)

Delayed repeal of section. —

Under sec. 74, ch. 1, 4SSLA 2017, this section is repealed February 14, 2025.

Sec. 22.20.220. Prison inmate characteristics information.

History. (§ 41 ch 1 4SSLA 2017)

Article 5. Administrative Director.

Sec. 22.20.300. Administrative director.

The chief justice of the supreme court shall, with the approval of the supreme court, appoint an administrative director to serve at the pleasure of the supreme court and to supervise the administrative operations of the Alaska Court System.

History. (§ 15 ch 50 SLA 1959; am § 31 ch 32 SLA 1971; am § 28 ch 8 SLA 2011)

Revisor’s notes. —

Formerly AS 22.05.150 . Renumbered in 1998.

Effect of amendments. —

The 2011 amendment, effective May 10, 2011, substituted “Alaska Court System” for “judicial system.”

Sec. 22.20.310. Court system report.

The administrative director of the Alaska Court System shall, not later than March 15 of each year, make available to the public and file with the senate secretary and the chief clerk of the house of representatives a report regarding the Alaska Court System. The report must include

a profile of the Alaska Court System and its justices, judges, and magistrates;
a summary description of the administration of the court system, including detailed descriptions of its facilities, programs, and personnel;
average, mean, minimum, and maximum time periods between initial receipt and final disposition of cases classified by courts and by each justice, judge, and magistrate;
information identifying each justice, judge, or magistrate who has had salary withheld under the authority of AS 22.05.140(b) , AS 22.07.090(b) , AS 22.10.190(b) , or AS 22.15.220(c) and the number of times and the time periods of the occurrences;
other information and data relevant to aiding the public and the legislature in understanding the organization, administration, caseload, disposition of cases, and accomplishments of the court system;
the travel expenses and per diem for each justice, judge, or magistrate for the previous calendar year.

History. (§ 1 ch 41 SLA 2001; am § 29 ch 8 SLA 2011)

Effect of amendments. —

The 2011 amendment, effective May 10, 2011, inserted “of the Alaska Court System” near the beginning of the first paragraph.

Sec. 22.20.320. Information systems guidelines and plan.

The administrative director of the Alaska Court System shall establish information systems guidelines and prepare a short-range and long-range information systems plan for the court system. The guidelines and plan must be consistent with the telecommunications information guidelines and plan adopted by the commissioner under AS 44.21.350 — 44.21.390 and must be adapted to the special needs of the judicial branch as determined by the administrator of the Alaska Court System.

History. (E.O. No. 113 § 2 (2005); am § 30 ch 8 SLA 2011)

Revisor’s notes. —

Enacted as AS 44.21.360; renumbered in 2005.

Effect of amendments. —

The 2011 amendment, effective May 10, 2011, substituted “the Alaska Court System” for “courts” near the beginning and at the end of the section.

Article 6. Public Administrators.

Sec. 22.20.410. Appointment.

When authorized by the supreme court, the presiding judge in each judicial district shall appoint a person to act as public administrator of the estates of deceased persons.

History. (§ 1 ch 216 SLA 1970; am § 1 ch 55 SLA 1975; am § 19 ch 83 SLA 1981; am § 12 ch 55 SLA 1984; am § 14 ch 103 SLA 1996)

Revisor’s notes. —

Formerly AS 22.15.310 . Renumbered in 1998.

Sec. 22.20.420. Administration of decedents’ estates.

When letters of administration are issued to a public administrator by the superior court in the district, the public administrator is the legal custodian of and shall administer the estates of deceased persons who leave property within the district. Letters of administration shall be issued to the public administrator when (1) administration of a decedent’s estate is required by law, and (2) a period of 30 days has elapsed from the date of death with no letters testamentary or letters of administration having been applied for and issued to any other person entitled by law to administer the estate of the deceased person. Except as otherwise provided in AS 22.20.410 — 22.20.440 , a public administrator shall administer estates as other administrators, and has all the rights and authority, and is subject to all the duties and liabilities of other administrators.

History. (§ 1 ch 216 SLA 1970; am § 15 ch 103 SLA 1996)

Revisor’s notes. —

Formerly AS 22.15.320 . Renumbered in 1998, at which time “AS 22.20.410 — 22.20.440 ” was substituted for “AS 22.15.310 — 22.15.340 ” to reflect the renumbering.

Sec. 22.20.430. Bond.

Before entering upon the duties of a public administrator, the public administrator shall execute and file with the administrative director of the Alaska Court System a surety bond in the form and amount to be determined by rule of the supreme court. The costs of the bond shall be paid by the court system.

History. (§ 1 ch 216 SLA 1970; am § 31 ch 8 SLA 2011)

Revisor’s notes. —

Formerly AS 22.15.330 . Renumbered in 1998.

Effect of amendments. —

The 2011 amendment, effective May 10, 2011, substituted “Alaska Court System” for “court system.”

Sec. 22.20.440. Compensation.

A public administrator is entitled to annual compensation in an amount to be determined by the supreme court and is not entitled to fees as other administrators.

History. (§ 1 ch 216 SLA 1970)

Revisor’s notes. —

Formerly AS 22.15.340 . Renumbered in 1998.

Chapter 25. Retirement and Death Benefits.

Cross references. —

For group life and health insurance for public officers and employees, see AS 39.30.090 . For employment benefits for judicial employees, see AS 22.20.037 .

Administrative Code. —

For judicial retirement system, see 2 AAC 37, art. 1.

Legislative history reports. —

For governor’s transmittal letter for ch. 92, SLA 2004 (SB 232), making a series of amendments to this chapter to ensure compliance with federal Internal Revenue Service changes that maintain the retirement system as a qualified plan, see 2003 Senate Journal 1722 — 1723.

For governor’s transmittal letter for ch. 20, SLA 2007 (SB 123), proposing needed corrections and clarifications of statutes enacted as part of the 2005 legislation establishing defined contributions retirement plans and making related amendments to defined benefit retirement plans, some of which apply to judicial retirement and health care benefits authorized by this chapter, see 2007 Senate Journal 567 — 570.

Sec. 22.25.010. Mandatory and voluntary retirement of justices and judges.

A justice or judge shall be retired on the date that the justice or judge reaches the age of 70. A justice or judge is eligible for retirement pay with five or more years of service at the time of retirement as a justice or judge.
A justice or judge may be retired for incapacity as provided in this section. A justice or judge is eligible for retirement pay with two or more years of service at the time of retirement for incapacity. The effective date of retirement under this subsection is the first day of the month coinciding with or after the date that the governor files written notice with the commissioner of administration that a designated justice or judge was retired for incapacity. A duplicate copy of the notice shall be filed with the judicial council.
A justice or judge who served for a period of five years may file with the governor a written application for retirement which contains a sworn statement of service and a sworn statement of the incapacity of the justice or judge to efficiently perform the judicial duties. When an application is filed, the governor shall appoint a board of three persons to inquire into the circumstances, and may, upon the board’s recommendation, retire the justice or judge. The effective date of the retirement shall be as provided in (b) of this section.
A justice or judge may voluntarily retire at any time and shall have a vested right to accrued retirement pay if the justice or judge has served five or more years. Retirement pay may not commence until the justice or judge has reached age 60; except that an actuarially equivalent retirement pay may be commenced after the justice or judge has reached age 55 or upon 20 years’ service as a justice or judge. The provisions of (b) of this section are an exception to this rule. A justice or judge desiring to retire under this subsection shall file with the governor a notice of that desire, together with a sworn statement of the facts establishing eligibility to retire. The governor shall certify those facts to the commissioner of administration and declare, in writing, the eligibility or ineligibility for retirement of the justice or judge. If a justice or judge is eligible to receive retirement pay at the time of retirement, the retirement pay shall commence on the first day of the month coinciding with or after the date the written declaration of the governor is filed with the commissioner of administration. If a justice or judge is not eligible to receive retirement pay at the time of retirement, the retirement pay shall commence on the first day of the month the justice or judge reaches age 60 or the month the justice or judge becomes eligible for an actuarial equivalent if application was made for this option.
[Repealed, § 16 ch 83 SLA 1967.]
In the computation of service for retirement under this chapter, the time served by a justice or judge of any court is added to the time served, if any, on any other court. All service rendered by a justice or judge, including service as a magistrate or deputy magistrate, before July 1, 1967, shall be included in the computation.
[Repealed, § 47 ch 59 SLA 2002.]

History. (§ 1 ch 102 SLA 1963; am §§ 6 — 10, 16 ch 83 SLA 1967; am § 1 ch 160 SLA 1972; am § 2 ch 196 SLA 1976; am § 18 ch 12 SLA 1980; am § 12 ch 38 SLA 1987; am § 47 ch 59 SLA 2002)

Administrative Code. —

For judicial retirement system, see 2 AAC 37, art. 1.

Opinions of attorney general. —

The standards for determining incapacity must be sufficiently strict that the judicial retirement system continues to serve as an incentive encouraging judges and justices to continue in state service at least until age 60. Dec. 27, 1982 Op. Att’y Gen.

The three-person panel appointed by the governor under (c) should probably not include the attorney general or any of his employees since their duties would include defending against a justice’s appeal of an adverse finding. There is no reason why any other state employee who has no personal interest in the outcome could not be appointed to the panel, unless the appointment conflicted with the individual’s duties or with a statute or regulation applicable to that employee. It is suggested that the panel include at least one doctor and one private attorney or former judge or justice. Dec. 27, 1982 Op. Att’y Gen.

Notes to Decisions

Applicability of benefits to same-sex couples. —

Employee benefits programs, which included the benefits for retirees from the state judiciary described in this chapter, were held violative of the rights of same-sex couples under Alaska Const. art. XII, § 6, where programs covered married public employees but not domestic partners. Alaska Civ. Liberties Union v. State, 122 P.3d 781 (Alaska 2005).

Collateral references. —

Mandatory retirement of public officer or employee based on age. 81 ALR3d 811.

Sec. 22.25.011. Contributions of judges and justices.

Each justice and judge appointed after July 1, 1978, is a member under the judicial retirement system as of the date of the justice’s or judge’s appointment and shall contribute seven percent of the base annual salary received by the justice or judge to the judicial retirement system. Contributions shall be made for all creditable service under this chapter up to a maximum of 15 years. This contribution is made in the form of a deduction from compensation, at the end of each payroll period, and is made even if the compensation paid in cash to the justice or judge is reduced below the minimum prescribed by law. The contributions shall be deducted from the justice’s or judge’s compensation before the computation of applicable federal taxes and shall be treated as employer contributions under 26 U.S.C. 414(h)(2). A member may not have the option of making the payroll deduction directly in cash instead of having the contribution picked up by the employer. Each justice and judge is considered to consent to the deduction from compensation. Payment of compensation less the deduction constitutes a full discharge of all claims and demands for the services rendered by the justice or judge during the period covered by the payment, except as to the benefits provided for under this chapter. The contributions shall be credited to the judicial retirement fund established in accordance with AS 22.25.048 .

History. (§ 7 ch 80 SLA 1978; am § 30 ch 137 SLA 1982; am § 17 ch 59 SLA 2002; am § 15 ch 92 SLA 2004)

Cross references. —

For a provision relating to a limitation of the base annual salary for a justice or judge first employed in the judicial retirement system on or after July 1, 1996, see AS 22.25.020 .

Editor’s notes. —

Section 32, ch. 12, SLA 1980 provides: “A judge of the court of appeals is not required to contribute to the retirement system under AS 22.25.011 if, at the time of his appointment to the court of appeals, he holds a judicial office to which the retirement benefits of AS 22.25 apply and to which he was appointed before July 1, 1978.”

Opinions of attorney general. —

Only a justice or judge who was appointed for the first time after July 1, 1978 must contribute to the retirement system. May 18, 1982 Op. Att’y Gen.

Public employees’ retirement system and teachers’ retirement system contribution rates may be increased for individuals who became members of the systems before the effective date of the rate increases, if the increases are accompanied by comparable enhancements to benefits. April 20, 2000 Op. Att’y Gen.

Notes to Decisions

Constitutionality. —

The establishment of a class of justices and judges appointed after July 1, 1978 is not a violation of equal protection. Hudson v. Johnstone, 660 P.2d 1180 (Alaska 1983).

Sec. 22.25.012. Retirement benefits of administrative director.

An administrative director of the Alaska court system appointed under art. IV, sec. 16, Constitution of the State of Alaska, is a member under the judicial retirement system as of the date of the administrative director’s appointment and is entitled to retirement benefits under this chapter on the terms and conditions applicable to a superior court judge appointed after July 1, 1978, except that an administrative director may receive retirement benefits only with service as administrative director for 10 or more years.
An administrative director who vacates the office of administrative director for any reason and who has not at that time accrued 10 years of credited service under this chapter is entitled to a refund of contributions to the judicial retirement system together with interest.
An administrative director who withdraws from the judicial retirement system under (b) of this section is eligible for membership in the public employees’ retirement system (AS 39.35) and shall receive credited service in that system for service rendered as administrative director. To be eligible for membership in the public employees’ retirement system under this subsection, the administrative director must contribute to the public employees’ retirement system
1. the amount that would have been contributed if the administrative director had been a member during the period of the membership in the judicial retirement system; and
2. any contributions for service as administrative director refunded from the public employees’ retirement system at the time the administrative director became a member of the judicial retirement system.

History. (§ 7 ch 146 SLA 1980; am § 16 ch 92 SLA 2004)

Sec. 22.25.020. Retirement pay.

Except as provided in AS 22.25.023(b) , a retired justice or judge eligible for retirement pay shall receive from the date of eligibility until death monthly retirement pay equal to five percent per year of service, to a maximum of 75 percent, of the monthly salary authorized for justices and judges, respectively, at the time each retirement payment is made. For a justice or judge who was first employed in this retirement system on or after July 1, 1996, base annual salary does not include remuneration in excess of the limitations set out in 26 U.S.C. 401(a)(17) (Internal Revenue Code).

History. (§ 1 ch 102 SLA 1963; am § 11 ch 83 SLA 1967; am § 21 ch 68 SLA 2000; am § 18 ch 59 SLA 2002)

Sec. 22.25.021. Distribution requirements.

The entire interest of a member must be distributed or must begin to be distributed not later than the member’s required beginning date.
If a member dies after the distribution of the member’s interest has begun but before the distribution has been completed, the remaining portion of the interest shall continue to be distributed at least as rapidly as under the method of distribution being used before the member’s death.
If a member has made a distribution election and dies before the distribution of the member’s interest begins, distribution of the member’s entire interest shall be completed by December 31 of the calendar year containing the fifth anniversary of the member’s death. However, if any portion of the member’s interest is payable to a designated beneficiary, distributions may be made over the life of the designated beneficiary or over a period certain not greater than the life expectancy of the designated beneficiary, commencing on or before December 31 of the calendar year immediately following the calendar year in which the member died, and, if the designated beneficiary is the member’s surviving spouse, the date distributions are required to begin may not be earlier than the later of December 31 of the calendar year (1) immediately following the calendar year in which the member died, or (2) in which the member would have attained 70 1/2 years of age, whichever is earlier. If the surviving spouse dies after the member but before payments to the spouse have begun, the provisions of this subsection apply as if the surviving spouse were the member. An amount paid to a child of the member will be treated as if it were paid to the surviving spouse if the amount becomes payable to the surviving spouse when the child reaches the age of majority.
If a member has not made a distribution election before the member’s death, the member’s designated beneficiary must elect the method of distribution not later than December 31 of the calendar year (1) in which distributions would be required to begin under this section, or (2) that contains the fifth anniversary of the date of death of the member, whichever is earlier. If the member does not have a designated beneficiary or if the designated beneficiary does not elect a method of distribution, distribution of the member’s entire interest must be completed by December 31 of the calendar year containing the fifth anniversary of the member’s death.
For purposes of (c) of this section, distribution of a member’s interest is considered to begin (1) on the member’s required beginning date, or (2) if the designated beneficiary is the member’s surviving spouse and the surviving spouse dies after the member but before payments to the spouse have begun, on the date distribution is required to begin to the surviving spouse. If distribution in the form of an annuity irrevocably commences to the member before the required beginning date, the date distribution is considered to begin is the date that the distribution actually commences.
Notwithstanding any contrary provisions of this chapter, the requirements of this section apply to all distributions of a member’s interest and take precedence over any inconsistent provisions of this chapter.
All distributions required under this section are determined and made in accordance with 26 U.S.C. 401(a)(9) and regulations adopted under that statute, including any minimum distribution incidental benefit requirement.
Unless otherwise specified, the provisions of this section apply to calendar years beginning on or after January 1, 1989.
In this section,
1. “designated beneficiary” means the individual who is designated as the beneficiary under the system in accordance with 26 U.S.C. 401(a)(9) and regulations adopted under that statute;
2. “required beginning date” means the first day of April of the calendar year following the calendar year in which the member either attains 70 1/2 years of age or actually retires, whichever is later.

History. (§ 19 ch 59 SLA 2002)

Sec. 22.25.022. Rollover distributions and rollover contributions.

A distributee may elect, at the time and in the manner prescribed by the administrator, to have all or part of an eligible rollover distribution paid directly to an eligible retirement plan specified by the distributee in the direct rollover.
The system does not accept contributions of eligible rollover distributions.
In this section,
1. “direct rollover” means the payment of an eligible rollover distribution by the system to an eligible retirement plan specified by a distributee who is eligible to elect a direct rollover;
2. “distributee” means a member or a beneficiary who is the surviving spouse of the member or an alternate payee;
3. “eligible retirement plan” means
  1. an individual retirement account described in 26 U.S.C. 408(a);
  2. an individual retirement annuity defined in 26 U.S.C. 408(b);
  3. an annuity plan described in 26 U.S.C. 403(a);
  4. a qualified trust described in 26 U.S.C. 401(a);
  5. on and after January 1, 2002, an annuity plan described in 26 U.S.C. 403(b);
  6. on or after January 1, 2002, a governmental plan described in 26 U.S.C. 457(b); or
  7. on or after January 1, 2008, a Roth IRA described in 26 U.S.C. 408A;
4. “eligible rollover distribution” means a distribution of all or part of a total account to a distributee, except for
  1. a distribution that is one of a series of substantially equal installments payable not less frequently than annually over the life expectancy of the distributee or the joint and last survivor life expectancy of the distributee and the distributee’s designated beneficiary, as defined in 26 U.S.C. 401(a)(9);
  2. a distribution that is one of a series of substantially equal installments payable not less frequently than annually over a specified period of 10 years or more;
  3. a distribution that is required under 26 U.S.C. 401(a)(9);
  4. the portion of any distribution that is not includable in gross income; however, a portion under this subparagraph may be transferred only to an individual retirement account or annuity described in 26 U.S.C. 408(a) or (b), to a qualified plan described in 26 U.S.C. 401(a) or 403(a), or to an annuity contract described in 26 U.S.C. 403(b), that agrees to separately account for amounts transferred, including separately accounting for the portion of the distribution that is includable in gross income and the portion of the distribution that is not includable in gross income; and
  5. other distributions that are reasonably expected to total less than $200 during a year.

History. (§ 19 ch 59 SLA 2002; am §§ 44 — 46 ch 20 SLA 2007)

Sec. 22.25.023. Limitation on benefits; maximum annual compensation.

Notwithstanding any other provisions of this chapter, the projected annual benefit provided by this chapter and the benefit from all other defined benefit plans required to be aggregated with the benefits from this system under the provisions of 26 U.S.C. 415 may not increase to an amount in excess of the amount permitted under 26 U.S.C. 415 at any time. In the event that any accrued benefit of a member exceeds the limitation of 26 U.S.C. 415 for a limitation year, the system shall make any necessary remedial action to correct an excess accrued benefit. The provisions of 26 U.S.C. 415, and the regulations adopted under that statute, as applied to qualified defined benefit plans of governmental employers are incorporated as part of the terms and conditions of the system. This subsection shall apply to any member of this system.
In this subsection, for system fiscal years beginning on or after January 1, 1998, and for purposes of 26 U.S.C. 415(b)(3) and the regulations adopted under that statute, “salary” includes any amount that is contributed by the employer under a salary reduction agreement and that is not includable in the member’s gross income under 26 U.S.C. 125, 132(f)(4), 402(e)(3), 402(h), or 403(b) and is limited to compensation that is actually paid to a member during the determination period, which is the fiscal year of the system.

History. (§ 19 ch 59 SLA 2002)

Sec. 22.25.025. Administration; federal qualification requirements.

The commissioner of administration is responsible for the administration of the judicial retirement system. The system is intended to qualify as a governmental plan established and maintained by the government of this state for the state’s employees, as permitted under 26 U.S.C. 414(d). The commissioner shall publish an information handbook for the system at intervals as the commissioner considers appropriate.
An amendment to this chapter does not provide a person with a vested right to a benefit if the Internal Revenue Service determines that the amendment will result in disqualification of the plan under the Internal Revenue Code.

History. (§ 8 ch 146 SLA 1980; am § 20 ch 59 SLA 2002; am § 17 ch 92 SLA 2004)

Administrative Code. —

For judicial retirement system, see 2 AAC 37, art. 1.

Sec. 22.25.027. Regulations.

The commissioner of administration may adopt regulations to implement this chapter. Regulations adopted by the commissioner under this chapter relate to the internal management of state agencies and their adoption is not subject to AS 44.62 (Administrative Procedure Act).
Notwithstanding (a) of this section, a regulation adopted under this chapter shall be published in the Alaska Administrative Register and Code for informational purposes. Each regulation adopted under this chapter must conform to the style and format requirements of the drafting manual for administrative regulations that is published under AS 44.62.050 .
At least 30 days before the adoption, amendment, or repeal of a regulation under this chapter, the commissioner of administration shall provide notice of the action that is being considered. The notice shall be
1. posted in public buildings throughout the state;
2. published in one or more newspapers of general circulation in each judicial district of the state;
3. mailed to each person or group that has filed a request for notice of proposed action with the commissioner of administration; and
4. furnished to each member of the legislature and to the Legislative Affairs Agency.
Failure to mail notice to a person as required under (c)(3) of this section does not invalidate an action taken by the commissioner of administration.
The commissioner may hold a public hearing on a proposed regulation.
A regulation adopted under this chapter takes effect 30 days after adoption by the commissioner of administration.
Notwithstanding the other provisions of this section, a regulation may be adopted, amended, or repealed, effective immediately, as an emergency regulation by the commissioner of administration. For an emergency regulation to be effective the commissioner of administration must find that the adoption, amendment, or repeal of the regulation is necessary for the immediate preservation of the orderly operation of the judicial retirement system. The commissioner of administration shall, within 10 days after adoption of an emergency regulation, give notice of the adoption under (c) of this section. An emergency regulation adopted under this subsection may not remain in effect more than 90 days unless the commissioner of administration complies with the procedures set out in this section and adopts the regulation as a permanent regulation.
In this section, “regulation” has the meaning given in AS 44.62.640(a) .

History. (§ 8 ch 146 SLA 1980; am § 2 ch 35 SLA 1984)

Revisor’s notes. —

Minor word changes were made in subsection (h) in 1984.

Administrative Code. —

For judicial retirement system, see 2 AAC 37, art. 1.

For employment-related benefits for same-sex partners of state employees and retirees under the state’s retirement systems, see 2 AAC 38.

For major medical insurance, see 2 AAC 39, art. 3.

Sec. 22.25.030. Survivors’ benefits.

Upon the death of a justice or judge who has served for at least two years, the surviving spouse is entitled to receive survivors’ benefits equal to one-half of the monthly retirement pay the justice or judge would thereafter have been entitled to receive if retired at the time of death. If at death the justice or judge was not yet entitled to retirement pay, or was or would have been entitled to less than 60 percent of the monthly salary authorized for the office, the surviving spouse is entitled to monthly survivors’ benefits equal to 30 percent of the salary authorized for justices or judges, respectively, at the time each monthly payment is made.
To be eligible for the survivors’ benefits, the surviving spouse must have been married to the justice or judge for at least one year immediately preceding the death of the justice or judge. The benefits continue until the death of the surviving spouse.
If there is no surviving spouse, or if the surviving spouse does not meet the requirements of (b) of this section, or upon the death of the surviving spouse, the surviving dependent child or children of the justice or judge are entitled to receive, in equal shares, 50 percent of the amount of the survivors’ benefits specified under (a) of this section.
The surviving child or children are entitled to the survivors’ benefits under (c) of this section during the period of their dependency. Dependency exists with respect to any child of a justice or judge who is either (1) a minor under the laws of Alaska, (2) under the age of 23 and is a student attending on a full-time basis an accredited educational or technical institution recognized by the state Department of Education and Early Development, or (3) so mentally or physically incapacitated as to be unable to provide for self care.
If there are both an eligible surviving spouse and surviving dependent children, but who reside in separate households, the surviving spouse and dependent children will share equally in the benefits payable under (a) of this section.
The rights of a surviving spouse or dependent child under this section are subject to the rights of a previous spouse or a dependent under a qualified domestic relations order.
If there is no surviving spouse or surviving dependent child entitled to benefits under this section or if after payment of all survivors’ benefits due under this section, less than the amount of contributions made by the justice or judge to the system under AS 22.25.011 and interest credited has been paid, the difference between the amount of contributions and the amount of benefits paid shall be paid to the designated beneficiary of the justice or judge. If there is no designated beneficiary or if no designated beneficiary survives the justice or judge, the balance of the contributions and interest credited shall be paid to the
1. surviving spouse; or, if there is none surviving,
2. surviving children in equal parts; or, if there is none surviving,
3. surviving parents in equal parts; or, if there is none surviving,
4. justice’s or judge’s estate.

History. (§ 1 ch 102 SLA 1963; am § 12 ch 83 SLA 1967; am § 2 ch 160 SLA 1972; am §§ 8, 9 ch 82 SLA 1986; am §§ 20, 21 ch 117 SLA 1986; am § 20 ch 106 SLA 1988; am § 21 ch 59 SLA 2002)

Revisor’s notes. —

In 1999, “Department of Education” was changed to “Department of Education and Early Development” in (d) of this section in accordance with § 89, ch. 58, SLA 1999.

Sec. 22.25.033. Claim for survivor’s benefits.

A person claiming entitlement to benefits payable under this chapter as a consequence of a justice’s or judge’s death shall provide the commissioner of administration with a marriage certificate, divorce or dissolution judgment, or other evidence of entitlement. Documents establishing entitlement may be filed with the commissioner immediately after a change in the justice’s or judge’s marital status. If the commissioner does not receive notification of a claim before the date 10 days after the justice’s or judge’s death, the person claiming entitlement is not entitled to receive from the Department of Administration any benefit already paid by the commissioner under this chapter.

History. (§ 21 ch 106 SLA 1988)

Sec. 22.25.035. Rights under a qualified domestic relations order.

A former spouse who was married to a justice or judge for at least one year shall be treated as a spouse or surviving spouse under this chapter to the extent required by a qualified domestic relations order. Rights under the order do not take effect until the order is filed with the administrator.

History. (§ 22 ch 117 SLA 1986; am § 22 ch 106 SLA 1988)

Administrative Code. —

For judicial retirement system, see 2 AAC 37, art. 1.

Notes to Decisions

Cited in

Laing v. Laing, 741 P.2d 649 (Alaska 1987).

Sec. 22.25.040. Refund of contributions. [Repealed, § 16 ch 83 SLA 1967.]

Sec. 22.25.041. Refund of contributions.

Except as provided in (c) of this section, a justice or judge who vacates office for any reason and who has not then accrued five years of creditable service under this chapter is entitled to receive a refund of the total amount of contributions, including principal and interest payments on indebtedness, together with interest credited on the amount. To receive credit for an earlier period of service under AS 22.25.010(f) , a justice or judge who has received a refund of contributions and who returns to active service shall repay in full, before appointment to retirement, the refunded contributions with interest at the prevailing rate.
A justice or judge whose contributions have been involuntarily refunded because of a levy under AS 09.38.065 or because of a federal tax levy may repay the amount levied together with accrued interest whether or not the justice or judge is on active service. Repayments shall be made under (a) of this section.
A justice or judge whose rights to a refund are subject to a qualified domestic relations order is entitled to receive a refund of the total amount of contributions, together with interest credited on the amount, only if the present spouse of the justice or judge, if any, and each person entitled under the order consent to the refund in writing on a form provided by the administrator. The administrator may waive written consent from the person entitled to benefits under the order if the administrator determines that the person cannot be located or for other reasons established by regulation. The administrator may waive written consent from the spouse if the administrator determines that
1. the justice or judge was not married to the spouse during any period of the justice’s or judge’s employment under this chapter;
2. the spouse has no right to benefits under this chapter because of the terms of a qualified domestic relations order;
3. the spouse cannot be located;
4. the justice or judge and spouse have been married for less than two years and the justice or judge establishes that they are not cohabiting; or
5. another reason established by regulation exists.
Except as provided in this subsection and in AS 29.45.030(a)(1) , amounts held in the system on behalf of a justice or judge or other person who is or may become eligible for benefits under the system are exempt from Alaska state and municipal taxes and are not subject to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, or charge of any kind, either voluntary or involuntary, before they are received by the person entitled to the amount under the terms of the system, and any attempt to anticipate, alienate, sell, transfer, assign, pledge, encumber, charge, or otherwise dispose of any right to amounts accrued in the system is void. However,
1. the right of a justice or judge to receive benefits or the contributions and interest may be assigned
  1. under a qualified domestic relations order; or
  2. to a trust or similar legal device that meets the requirements for a Medicaid-qualifying trust under AS 47.07.020(f) and 42 U.S.C. 1396p(d)(4);
2. a justice or judge may elect to have the taxable portion of the qualifying distributions transferred directly to another qualified plan or an individual retirement account that accepts the transfer.

History. (§ 7 ch 80 SLA 1978; am § 3 ch 89 SLA 1988; am §§ 22, 23 ch 68 SLA 2000)

Administrative Code. —

For judicial retirement system, see 2 AAC 37, art. 1.

Sec. 22.25.045. Appropriations. [Repealed, § 42 ch 146 SLA 1980.]

Sec. 22.25.046. Employer contributions.

The state court system shall contribute to the judicial retirement system at the rate established by the commissioner of administration. The contribution rate shall be based on the results of an actuarial valuation of the judicial retirement system. The results of the actuarial valuation shall be based on actuarial methods and assumptions adopted by the commissioner of administration.
The contribution rate shall be a percentage which, when applied to the covered compensation of all active members of the judicial retirement system, will generate sufficient money to support, along with contributions from members, the benefits of the judicial retirement system.
Employer contributions shall be separately computed for benefits provided by AS 22.25.090 and shall be deposited in the Alaska retiree health care trust established under AS 39.30.097(a) .

History. (§ 8 ch 146 SLA 1980; am § 47 ch 20 SLA 2007)

Administrative Code. —

For judicial retirement system, see 2 AAC 37, art. 1.

Effect of amendments. —

The 2007 amendment, effective June 7, 2007, added subsection (c).

Sec. 22.25.048. Judicial retirement trust fund; accounting and investment.

The commissioner of administration shall establish a judicial retirement trust fund for the judicial retirement system in which the assets of the system are deposited and held. The trust fund is subject to the restrictions of (h) of this section. The commissioner shall maintain accounts and records for the system.
All income of the judicial retirement fund and all disbursements made from the fund shall be credited or charged, whichever is appropriate, to the following accounts:
1. an individual account that contains the mandatory contributions collected from a person under AS 22.25.011 ;
2. an account that is credited with the contributions of the state court system;
3. a retirement reserve account; and
4. an expense account for the judicial retirement system that shall be credited with funds transferred from the account described in (2) of this subsection.
The Alaska Retirement Management Board is the fiduciary of the fund and has the same powers and duties under this section in regard to the judicial retirement trust fund as are provided in AS 37.10.220 .
Within one year following retirement, an amount actuarially determined as necessary to pay fully for the benefits to be received by a person under this chapter shall be transferred first from the individual account described in (b)(1) of this section and, after the individual contributions have been exhausted, then from the court system account described in (b)(2) of this section, into the retirement reserve account described in (b)(3) of this section.
The contributions of the court system to the retirement reserve account shall contain the actuarially determined amount necessary to fully fund the pension, death benefits, and other benefits paid under the judicial retirement system to a person under this chapter.
The investment income of the judicial retirement fund shall be allocated in proportion to the balances of assets first to the retired reserve account described in (b)(3) of this section and then to the account described in (b)(2) of this section.
The account described in (b)(4) of this section is charged with all disbursements representing the administrative expenses incurred by the judicial retirement system. Expenditures from this account shall be included in the budget of the governor for each fiscal year.
The corpus or income of the assets held in trust as required by the system may not be diverted to or used for other than the exclusive benefit of the members or their beneficiaries.
If the judicial retirement system is terminated,
1. a member whose contributions have not been refunded, regardless of the member’s employment status at the date of the termination of the system, shall be considered fully vested in the member’s adjusted accrued retirement benefits as of the date of the termination of the system; and
2. if all liabilities are satisfied, any excess assets arising from erroneous actuarial computation shall revert to the employer.

History. (§ 31 ch 137 SLA 1982; § 10 ch 82 SLA 1986; am §§ 14, 15 ch 141 SLA 1988; am § 6 ch 31 SLA 1992; am §§ 22, 23 ch 59 SLA 2002; am § 18 ch 92 SLA 2004; am § 50 ch 9 FSSLA 2005)

Notes to Decisions

Cited in

Hudson v. Johnstone, 660 P.2d 1180 (Alaska 1983).

Secs. 22.25.050 — 22.25.070. Financing and administration; contributions; transfer of contributions. [Repealed, § 16 ch 83 SLA 1967.]

Sec. 22.25.080. Tax exemption.

Benefits paid under this chapter are exempt from state and municipal income taxes.

History. (§ 4 ch 160 SLA 1972)

Sec. 22.25.090. Medical benefits.

Except as provided in (c) of this section, the following persons are entitled to major medical insurance coverage:
1. a person receiving a monthly benefit under this chapter;
2. the spouse of a person receiving a monthly benefit under this chapter;
3. a natural or adopted child of a person receiving a monthly benefit under this chapter, if the child is a dependent child under (f) of this section.
Except as provided in (c) of this section, major medical insurance coverage takes effect on the same date as retirement benefits begin and stops when the retired person or survivor is no longer eligible to receive a monthly benefit. The coverage for persons age 65 or older is the same as that available for persons under 65 years of age. The benefits payable to those persons age 65 or older supplement any benefits provided under the federal old age, survivors, and disability insurance program. The medical premium and optional insurance premiums owed by a retired person or survivor shall be deducted from the benefit payable to the retired person or survivor before payment of the benefit.
Receipt under a qualified domestic relations order of a monthly benefit from the system does not entitle a person or the person’s spouse or child to insurance coverage under (a) of this section. However, a member’s former spouse who receives a monthly benefit under a qualified domestic relations order is entitled to receive major medical insurance coverage if the former spouse
1. elects the coverage within 60 days after the first monthly benefit paid under the order is mailed first class or otherwise delivered; and
2. pays the premium established by the administrator for the coverage.
The administrator shall inform members who have requested appointment to retirement that the health insurance coverage available to retired members may be different from the health insurance coverage provided to employees. The administrator shall also notify those members of time limits for selecting optional health insurance coverage and whether the election is irrevocable. A member who has requested appointment to retirement shall indicate in writing on a form provided by the administrator that the member has received the information required by this subsection and whether the member has chosen to receive optional health insurance coverage.
On and after July 1, 2007, benefits under this section shall be provided in part by the Alaska retiree health care trust established under AS 39.30.097(a) .
In this section, “dependent child” means an unmarried child of a justice, judge, or administrative director of the Alaska Court System who is dependent on the justice, judge, or administrative director for support and who is either (1) less than 19 years old, or (2) less than 23 years old and registered at and attending on a full-time basis an accredited educational or technical institution recognized by the Department of Education and Early Development. The age limits set out in this subsection do not apply to a child who is totally and permanently disabled.

History. (§ 4 ch 245 SLA 1976; am § 32 ch 137 SLA 1982; am §§ 23 — 25 ch 117 SLA 1986; am § 2 ch 14 SLA 1992; am § 24 ch 68 SLA 2000; am § 48 ch 20 SLA 2007; am § 32 ch 8 SLA 2011)

Revisor’s notes. —

In 1999, “Department of Education” was changed to “Department of Education and Early Development” in (c) [now (f)] of this section in accordance with § 89, ch. 58, SLA 1999. In 2008, former subsection (c) was relettered as (f), former subsections (d) — (f) were relettered as (c) — (e), respectively, and internal references in subsections (a) and (b) were conformed.

Administrative Code. —

For major medical insurance, see 2 AAC 39, art. 3.

Effect of amendments. —

The 2011 amendment, effective May 10, 2011, inserted “of the Alaska Court System” in the first sentence in (f).

Opinions of attorney general. —

Pre-funding of the medical component of public employees’ retirement system and teachers’ retirement system benefits, to the extent that pre-funding would be considered an accrued benefit, may not be discontinued for members who were employed during the period that statutes required pre-funding; however, funding of medical benefits may be set at less than 100% funding for new members. April 20, 2005 Op. Att’y Gen.

Sec. 22.25.100. Exemption of retirement funds and benefits.

Employee contributions and other amounts held in the judicial retirement system and benefits payable under this chapter are exempt from garnishment, execution, and levy as provided in AS 09.38 (Alaska Exemptions Act).

History. (§ 2 ch 65 SLA 1991)

Sec. 22.25.110. Special rules for treatment of qualified military service.

Notwithstanding any contrary provisions of this chapter, with respect to qualified military service, contributions shall be made and benefits and service credit shall be provided in accordance with 26 U.S.C. 414(u).
To the extent required by 26 U.S.C. 401(a)(37), if a member dies while performing qualified military service, as defined in 38 U.S.C. 43, the survivors of the member are entitled to any additional benefits that would have been provided to the survivors under the plan had the member resumed employment and then terminated employment on account of death. For purposes of this subsection, periods of qualified military service are not included in calculations of credited service.
Consistent with and to the extent required by 26 U.S.C. 414(u)(12), a member receiving differential wage payments from an employer shall be treated as employed by that employer, and the differential wage payment shall be treated as compensation for purposes of applying the limits on annual additions under 26 U.S.C. 415(b). For purposes of this subsection, “differential wage payment” means any payment that
1. is made by an employer to an individual with respect to any period during which the individual is performing service in the uniformed services, as defined in 38 U.S.C. 43, while on active duty for a period of more than 30 days; and
2. represents all or a portion of the wages the individual would have received from the employer if the individual were performing service for the employer.

History. (§ 24 ch 59 SLA 2002; am § 4 ch 102 SLA 2014)

Cross references. —

For governor's transmittal letter for ch. 102, SLA 2014, adding subsections (b) and (c) to this section, see 2014 Senate Journal 1469 — 1470.

Effect of amendments. —

The 2014 amendment, effective July 29, 2014, added (b), retroactive to January 1, 2007; added (c), retroactive to January 1, 2009.

Editor's notes. —

Under sec. 11, ch. 102, SLA 2014, subsection (b) is retroactive to January 1, 2007, and subsection (c) is retroactive to January 1, 2009.

Subsections (b) and (c) of this section, as introduced by the governor and passed by the legislature, refer to 38 U.S.C. 43 but this statute does not exist. It is possible that this reference was intended to refer to 38 U.S.C. 4301 — 4335.

Sec. 22.25.800. Pension forfeiture.

The provisions of AS 37.10.310 apply to pension benefits under this chapter.

History. (§ 10 ch 47 SLA 2007)

Sec. 22.25.900. Definitions.

In this chapter, unless the context otherwise requires,

“actuarial equivalent” means the adjustment necessary to obtain equality in value of the aggregate expected payments under two different forms of pension payments, considering expected mortality and interest earnings on the basis of assumptions, factors, and methods specified in regulations issued under the system that are formally adopted by the Alaska Retirement Management Board that clearly preclude employer discretion in the determination of the amount of any justice’s, judge’s, or member’s benefit;
“judge” means a judge of the court of appeals, a superior court judge, or a district court judge;
“justice” means a supreme court justice;
“member” means an administrative director of the Alaska Court System who is eligible to participate in the system, a justice, or a judge;
“qualified domestic relations order” means a divorce or dissolution judgment under AS 25.24, including an order approving a property settlement, that
1. creates or recognizes the existence of an alternate payee’s right to, or assigns to an alternate payee the right to, receive all or a portion of the member contributions and interest or benefits payable with respect to a justice or judge;
2. sets out the name and last known mailing address, if any, of the justice or judge and of each alternate payee covered by the order;
3. sets out the amount or percentage of the justice’s or judge’s benefit, or of any survivor’s benefit, to be paid to the alternate payee, or sets out the manner in which that amount or percentage is to be determined;
4. sets out the number of payments or period to which the order applies;
5. sets out the plan to which the order applies;
6. does not require any type or form of benefit or any option not otherwise provided by this chapter;
7. does not require an increase of benefits in excess of the amount provided by this chapter, determined on the basis of actuarial value;
8. does not require the payment, to an alternate payee, of benefits that are required to be paid to another alternate payee under another order previously determined to be a qualified domestic relations order.

History. (§ 26 ch 117 SLA 1986; am § 25 ch 68 SLA 2000; am § 25 ch 59 SLA 2002; am § 19 ch 92 SLA 2004; am § 51 ch 9 FSSLA 2005)

Administrative Code. —

For judicial retirement system, see 2 AAC 37, art. 1.

Notes to Decisions

Cited in

Laing v. Laing, 741 P.2d 649 (Alaska 1987).

Chapter 28. Contributory Judicial Retirement System.

[Rejected by referendum, effective October 14, 1976.]

Chapter 30. Judicial Conduct.

Sec. 22.30.010. Commission on Judicial Conduct.

The Commission on Judicial Conduct shall consist of nine members as follows: three persons who are justices or judges of state courts, elected by the justices and judges of the state courts; three members who have practiced law in this state for 10 years, appointed by the governor from nominations made by the governing body of the organized bar and subject to confirmation by a majority of the members of the legislature in joint session; and three citizens who are not judges, retired judges, or members of the state bar, appointed by the governor and subject to confirmation by a majority of the members of the legislature in joint session. Commission membership terminates if a member ceases to hold the position that qualified that person for appointment. A person may not serve on the commission and on the judicial council simultaneously. A quorum of the commission must include at least one person who is a justice or judge, at least one person appointed by the governor who has practiced law in the state for 10 years, and at least one citizen member who is not a justice, judge, or member of the state bar. The commission shall elect one of its members to serve as chairman for a term prescribed by the commission. A vacancy shall be filled by the appointing power for the remainder of the term.

History. (§ 1 ch 213 SLA 1968; am § 23 ch 71 SLA 1972; am § 1 ch 160 SLA 1984; am § 2 ch 135 SLA 1990)

Cross references. —

For constitutional provisions regarding Commission on Judicial Conduct, see Alaska Const., art. IV, § 10.

Opinions of attorney general. —

Although the governor may request additional nominations after receiving a name in nomination, neither the Alaska Constitution nor the Alaska Statutes require the Board to submit more than one name in nomination for an attorney seat on the Commission on Judicial Conduct unless the governor first rejects the initial nomination. July 26, 1993 Op. Att’y Gen.

The plain meaning of the by-laws of the Alaska Bar Association clearly establish that an inactive member is not qualified to serve as a public member of the commission. The person serving in that capacity should be notified that the automatic termination provisions of this section have taken effect as of the date of this memorandum. Aug. 24, 1992 Op. Att’y Gen.

Collateral references. —

46 Am. Jur. 2d, Judges, § 1 et seq.

48A C.J.S., Judges, § 78 et seq.

Sec. 22.30.011. Powers and duties of the commission.

The commission shall on its own motion or on receipt of a written complaint inquire into an allegation that a judge
1. has been convicted of a crime punishable as a felony under state or federal law or convicted of a crime that involves moral turpitude under state or federal law;
2. suffers from a disability that seriously interferes with the performance of judicial duties and that is or may become permanent;
3. within a period of not more than six years before the filing of the complaint or before the beginning of the commission’s inquiry based on its own motion, committed an act or acts that constitute
  1. wilful misconduct in office;
  2. wilful and persistent failure to perform judicial duties;
  3. conduct prejudicial to the administration of justice;
  4. conduct that brings the judicial office into disrepute; or
  5. conduct in violation of the code of judicial conduct; or
4. is habitually intemperate.
After preliminary informal consideration of an allegation, the commission may exonerate the judge, informally and privately admonish the judge, or recommend counseling. Upon a finding of probable cause, the commission shall hold a formal hearing on the allegation. A hearing under this subsection is public. Proceedings and records pertaining to proceedings that occur before the commission holds a public hearing on an allegation are confidential, subject to the provisions of AS 22.30.060(b) .
A judge appearing before the commission at the hearing is entitled to counsel, may present evidence, and may cross-examine witnesses.
The commission shall, after a hearing held under (b) of this section,
1. exonerate the judge of the charges; or
2. refer the matter to the supreme court with a recommendation that the judge be reprimanded, suspended, removed, or retired from office or publicly or privately censured by the supreme court.
[Repealed, § 3 ch 135 SLA 1990.]
[Repealed, § 3 ch 135 SLA 1990.]
If the commission exonerates a judge, a copy of the proceedings and report of the commission may be made public on the request of the judge.
If a judge has been publicly reprimanded, suspended, or publicly censured under this section and the judge has filed a declaration of candidacy for retention in office, the commission shall report to the judicial council for inclusion in the statement filed by the judicial council under AS 15.58.050 each public reprimand, suspension, or public censure received by the judge
1. since appointment; or
2. if the judge has been retained by election, since the last retention election of the judge.

History. (§ 1 ch 58 SLA 1981; am §§ 2 — 4 ch 160 SLA 1984; am § 13 ch 38 SLA 1987; am §§ 3 — 5, 11 ch 135 SLA 1990)

Cross references. —

For the power of the Commission on Judicial Conduct, see art. IV, sec. 10, Constitution of the State of Alaska.

Notes to Decisions

Former paragraph (d)(3) unconstitutional. —

Alaska Const., Art. IV, § 10 only empowers the commission to recommend sanctions to the Alaska Supreme Court, not to impose them; and therefore former paragraph (d)(3) of this section, repealed in 1990, which empowered the commission to reprimand a judge publicly, was in conflict with the constitution. In re Inquiry Concerning A Judge, 762 P.2d 1292 (Alaska 1988).

This section does not expressly authorize public admonishment as sanction. Inquiry Concerning a Judge, 822 P.2d 1333 (Alaska 1991)(see 1990 amendment).

Private reprimand. —

Judge’s self-validation of reduced fare tickets through a defunct airline created an appearance of impropriety which warranted the sanction of a private reprimand. In re Inquiry Concerning A Judge, 788 P.2d 716 (Alaska 1990).

Although the court found no actual impropriety on the part of the judge, a public reprimand was appropriate in light of the substantial harm caused by the appearance of impropriety that he created and the compelling need to foster public confidence in our judicial system’s ability to protect against favoritism. In re Johnstone, 2 P.3d 1226 (Alaska 2000).

Public censure upheld. —

Pursuant to paragraph (d)(2), a judge was properly subject to public censure for pre-signing judicial orders and allowing the prosecution to decide the particulars for out-of-custody defendants without judicial supervision, administrative failure that resulted in a lack of prosecution in a significant number of criminal cases under Crim. R. 45, improper ex parte communications and presiding over a matter where the judge should have disqualified himself, and inappropriate sexual statements to female court employees in the workplace. In re Landry, 157 P.3d 1049 (Alaska 2007).

Removal from office. —

District court judge was removed after he engaged in improper ex parte communications with an assistant district attorney. The judge’s mental state was intentional, his behavior during the disciplinary process was deceptive, and the judge had been previously sanctioned for a similar ex parte communication with the prosecution. In re Cummings, 292 P.3d 187 (Alaska 2013).

Appearance of impropriety. —

During a criminal jury trial arising out of domestic violence allegations, the presiding district court judge passed a note to a state trooper while the judge made a comment about fishing; the note constituted an ex parte communication, and the judge’s comment created the appearance of impropriety. The appearance of impropriety continued when the judge, who had initially recused himself, continued to preside over the matter before declaring a mistrial. In re Cummings, 211 P.3d 1136 (Alaska 2009).

Jurisdiction to investigate. —

The commission may investigate alleged wrongdoing by an active judge as long as a complaint is filed or inquiry commenced within six years of the alleged actions and retains its jurisdiction over retired judges. In re Johnstone, 2 P.3d 1226 (Alaska 2000).

Quoted in

State v. Jeffery, 170 P.3d 226 (Alaska 2007); In re Disciplinary Matter Involving Dooley, 376 P.3d 1249 (Alaska 2016).

Collateral references. —

Confidentiality of proceedings or reports of judicial inquiry board or commission. 5 ALR4th 730.

Sec. 22.30.015. Term of office.

The term of office for a commission member is four years.

History. (§ 1 ch 312 SLA 1968; am § 56 ch 59 SLA 1982)

Sec. 22.30.020. Employment and compensation generally.

The commission may employ officers, assistants, and other employees that it considers necessary for the performance of the duties and exercise of the powers conferred upon the commission; it may arrange for and compensate medical and other experts and reporters, may arrange for the attendance of witnesses, including witnesses not subject to subpoena, and may pay from funds available to it all expenses reasonably necessary for effectuating the purposes of § 10, art. IV, Constitution of the State of Alaska. The attorney general shall, if requested by the commission, act as its counsel generally or in any particular investigation or proceeding. The commission may employ special counsel from time to time when it considers it necessary.

History. (§ 1 ch 213 SLA 1968)

Notes to Decisions

Attorney’s fees not directly provided for. —

The statutory scheme implementing the constitutional provision mandating a Commission on Judicial Qualifications does not directly provide for attorney’s fees. In re Robson, 500 P.2d 657 (Alaska 1972).

But arguably they might be treated as expense. —

Arguably attorney’s fees might be treated as an expense “reasonably necessary for effectuating the purpose of the judicial qualifications section of the Alaska Constitution.” In re Robson, 500 P.2d 657 (Alaska 1972).

Prevailing judge may be allowed reasonable attorney’s fees. —

In order to effectuate a judge’s right of counsel and not to be forced to appear as his or her own attorney, a judge prevailing in a proceeding before the Commission on Judicial Qualifications may, in the discretion of the commission, be allowed reasonable attorney’s fees. In re Robson, 500 P.2d 657 (Alaska 1972).

Sec. 22.30.030. Travel expenses and per diem.

Each member of the commission shall be allowed travel expenses and per diem as provided by AS 39.20.180 , but may not receive compensation for services.

History. (§ 1 ch 213 SLA 1968)

Sec. 22.30.040. Preparation of budget.

The commission shall be responsible for preparing and presenting to the legislature its proposed annual budgets.

History. (§ 1 ch 213 SLA 1968; am § 5 ch 160 SLA 1984)

Sec. 22.30.050. Validity of acts of the commission.

An act of the commission is not valid unless concurred in by a majority of the members serving on the commission at the time the act is taken.

History. (§ 1 ch 213 SLA 1968; am § 6 ch 160 SLA 1984)

Notes to Decisions

Appropriate standard to be applied in regard to commission proceedings is that of clear and convincing evidence. In re Hanson, 532 P.2d 303 (Alaska 1975).

Sec. 22.30.060. Rules and confidentiality.

The commission shall adopt rules implementing this chapter and providing for confidentiality of proceedings.
All proceedings, records, files, and reports of the commission are confidential and disclosure may not be made except
1. upon waiver in writing by the judge at any stage of the proceedings;
2. if the subject matter or the fact of the filing of charges has become public, in which case the commission may issue a statement in order to confirm the pendency of the investigation, to clarify the procedural aspects of the proceedings, to explain the right of the judge to a fair hearing, or to state that the judge denies the allegations; or
3. upon filing of formal charges, in which case only the charges, the subsequent formal hearing, and the commission’s ultimate decision and minority report, if any, are public; even after formal charges are filed, the deliberations of the commission concerning the case are confidential.

History. (§ 1 ch 213 SLA 1968; am § 7 ch 160 SLA 1984; am § 6 ch 135 SLA 1990)

Opinions of attorney general. —

The Commission’s statutory obligation of confidentiality does not preclude it from sharing confidential information with another state agency if the requesting agency is authorized to have access to the confidential information and the access is consistent with a legitimate purpose, unless the constitutional right to privacy is implicated, and provided that the requesting agency maintains the confidentiality of the information. Jan. 1, 1992 Op. Att’y Gen.

The statutory change seeking to give the Ombudsman access to confidential records of every state agency will override the Commission’s statutory confidentiality requirement if the ombudsman’s investigation is authorized by the statutes governing his activities, the information sought is reasonably related to that investigation, and the disclosure does not violate the privacy interests of anyone who is protected by the statute. Jan. 1, 1992 Op. Att’y Gen.

The ombudsman was clearly prohibited from obtaining sealed court records, but that protection may not apply to ancillary material. His efforts to review a matter pending before a court could violate his regulation prohibiting him from investigating matters that were subject of a judicial proceeding. Jan. 1, 1992 Op. Att’y Gen.

There are two primary choices as legal procedures for challenging an ombudsman’s subpoena of confidential information: to bring a declaratory judgment action in advance of the subpoenas (see AS 24.55.240 — 24.55.260 limiting legal action involving the ombudsman) or to move to quash the subpoenas when they arrive. The former type of action may be employed to test the jurisdiction of the ombudsman in the matters he proposes to investigate as well as the questions of privilege and privacy which are usually raised in a motion to quash. Jan. 1, 1992 Op. Att’y Gen.

Notes to Decisions

Ultimate authority in disciplinary matters. —

Alaska Const., art. IV, § 10 vests in the supreme court the ultimate authority in disciplinary matters affecting the judiciary. In re Hanson, 532 P.2d 303 (Alaska 1975).

Combination of judicial and investigative functions in the commission under Commission Rule 5(a) did not violate due process rights under either the federal constitution or Alaska’s Constitution. In re Hanson, 532 P.2d 303 (Alaska 1975).

The dual function of the commission, in and of itself, did not result in a biased or partial tribunal. In re Hanson, 532 P.2d 303 (Alaska 1975).

Option under Commission Rule 9 is not offensive to due process. —

Due process is not offended by the commission’s having the option under Commission Rule 9 to hear the matter itself or to refer the charges to a master for a hearing. In re Hanson, 532 P.2d 303 (Alaska 1975).

The commission should have the option of referral to a master where the particular matter requires extensive testimony or specialized fact-finding. On the other hand, where the commission wishes to handle the matter without appointment of a master, there is no legal impediment to proceeding in such a manner. In re Hanson, 532 P.2d 303 (Alaska 1975).

Quoted in

In re Robson, 500 P.2d 657 (Alaska 1972).

Collateral references. —

Confidentiality of proceedings or reports of judicial inquiry board or commission. 5 ALR4th 730.

Sec. 22.30.066. Inquiry.

The commission may subpoena witnesses, administer oaths, take the testimony of any person under oath, and require the production for examination of documents or records relating to its inquiry under AS 22.30.011 .
In the course of an inquiry under AS 22.30.011 into judicial misconduct or the disability of a judge, the commission may request the judge to submit to a physical or mental examination. If the judge refuses to submit to the examination, the commission shall determine the issue for which the examination was required adversely to the judge.

History. (§ 2 ch 58 SLA 1981; am § 8 ch 160 SLA 1984)

Collateral references. —

Confidentiality of proceedings or reports of judicial board or commission. 5 ALR4th 730.

Sec. 22.30.068. Minority reports.

A member of the commission who believes that the commission failed to impose an appropriate disciplinary measure after a hearing under AS 22.30.011(b) may submit a report recommending a different disciplinary measure. The report shall accompany the majority report and may be submitted by the member to the chief justice of the supreme court, the attorney general, and the chair of the senate and house judiciary committees.

History. (§ 7 ch 135 SLA 1990)

Sec. 22.30.070. Disqualification, suspension, removal, retirement, and censure of judges.

A judge is disqualified from acting as a judge, without loss of salary, while there is pending (1) an indictment or an information charging the judge in the United States with a crime punishable as a felony under Alaska or federal law, or (2) a recommendation to the supreme court by the commission for the removal or retirement of the judge.
On recommendation of the commission, the supreme court may reprimand, publicly or privately censure, or suspend a judge from office without salary when in the United States the judge pleads guilty or no contest or is found guilty of a crime punishable as a felony under state or federal law or of a crime that involves moral turpitude under state or federal law. If the conviction is reversed, suspension terminates, and the judge shall be paid the judge’s salary for the period of suspension. If the judge is suspended and the conviction becomes final, the supreme court shall remove the judge from office.
On recommendation of the commission, the supreme court may (1) retire a judge for disability that seriously interferes with the performance of duties and that is or may become permanent, and (2) reprimand, publicly or privately censure, or remove a judge for action occurring not more than six years before the commencement of the judge’s current term which constitutes wilful misconduct in the office, wilful and persistent failure to perform duties, habitual intemperance, conduct prejudicial to the administration of justice, or conduct that brings the judicial office into disrepute. The effective date of retirement under (1) of this subsection is the first day of the month coinciding with or after the date that the supreme court files written notice with the commissioner of administration that the judge was retired for disability. A duplicate copy of the notice shall be filed with the judicial council.
A judge retired by the supreme court shall be considered to have retired voluntarily. A judge removed by the supreme court is ineligible for judicial office for a period of three years.
A supreme court justice who has participated in proceedings involving a judge or justice of any court may not participate in an appeal involving that judge or justice in that particular matter.

History. (§ 1 ch 213 SLA 1968; am §§ 3, 4 ch 58 SLA 1981; am § 14 ch 38 SLA 1987; am §§ 8, 9 ch 135 SLA 1990)

Notes to Decisions

Supreme court has ultimate authority. —

Alaska Const., art. IV, § 10 and subsection (c) unambiguously establish the supreme court of Alaska as the body entrusted with the ultimate dispositive decision in a judicial qualifications matter. In re Hanson, 532 P.2d 303 (Alaska 1975).

And is to exercise independent judgment in determining sanction. —

Normally considerable weight will be accorded to a given recommendation from the Commission on Judicial Qualifications, if supported by an adequate factual basis. Nevertheless, both § 10, art. IV, of the state constitution and item (2) of subsection (c) clearly establish that the supreme court of Alaska is to exercise its independent judgment in determining as appropriate sanction, if any, as to any recommendation made by the commission. In re Robson, 500 P.2d 657 (Alaska 1972).

It would be tantamount to an abdication of its constitutional and statutory obligations if the supreme court were to automatically adopt the sanction recommendations of the Commission on Judicial Qualifications. In re Robson, 500 P.2d 657 (Alaska 1972).

The supreme court’s scope of review in a judicial qualifications proceeding should be that of an independent evaluation of the evidence. In re Hanson, 532 P.2d 303 (Alaska 1975).

Appearance of impropriety. —

Review of commission recommendation is broader than substantial evidence test. —

Under the discretionary grant to the supreme court under Alaska Const., art. IV, § 10 and item (2) of subsection (c), its review of a particular recommendation by the commission is necessarily broader than the substantial evidence criterion adopted for review of findings of fact made by the commission. In re Robson, 500 P.2d 657 (Alaska 1972).

Which is employed in reviewing findings of fact. —

Regarding the scope of review which the supreme court should exercise in reviewing findings of fact of the Commission on Judicial Qualifications, there is no reason to depart from the substantial evidence test which has heretofore been employed in reviewing matters coming to the supreme court from administrative agencies and other governmental bodies. In re Robson, 500 P.2d 657 (Alaska 1972).

Duties of supreme court in cases under item (2) of subsection (c). —

In every case concerning the suspension, removal, retirement or censorship of a judge, the supreme court must insure that procedural due process has been accorded the judicial officer proceeded against and that requisite findings of fact have been made and are supported by substantial evidence. The supreme court is further obligated to decide whether the commission’s recommended sanction is justified by the record and is in accord with the objectives of the commission as reflected in the relevant constitutional and statutory provisions. In re Robson, 500 P.2d 657 (Alaska 1972).

No separate hearing on question of appropriateness of sanction. —

Neither considerations of procedural due process nor the rules of procedure of the commission provide for separate hearing on the question of the appropriateness of any given sanction. In re Hanson, 532 P.2d 303 (Alaska 1975).

Censure held appropriate sanction. —

See In re Robson, 500 P.2d 657 (Alaska 1972); In re Hanson, 532 P.2d 303 (Alaska 1975).

Supreme court sanction decision made of record. —

Where the actions of a judge were serious enough infractions to justify its following the censure recommendation of the Commission on Judicial Qualifications, the supreme court was of the opinion that given the necessity for the creation of such a commission and the need for enforcement of standards of judicial conduct and canons of judicial ethics, these ends were more fully served by making of record its sanction decision. In re Robson, 500 P.2d 657 (Alaska 1972).

By making its sanction part of the public record, the supreme court believed that the public’s confidence would be maintained, both in the workings of the commission and in the ability of the judicial branch of government to insure its continued integrity. In re Robson, 500 P.2d 657 (Alaska 1972).

Cited in

In re Johnstone, 2 P.3d 1226 (Alaska 2000).

Sec. 22.30.080. Definitions.

In this chapter,

“commission” means the Commission on Judicial Conduct provided for in § 10, art. IV, Constitution of the State of Alaska and this chapter;
“judge” means a justice of the supreme court, a judge of the court of appeals, a judge of the superior court, or a judge of the district court who is the subject of an investigation or proceeding under § 10, art. IV, Constitution of the State of Alaska and this chapter, including a justice or judge who is serving in a full-time, part-time, permanent, or temporary position.

History. (§ 1 ch 213 SLA 1968; am § 19 ch 12 SLA 1980; am § 9 ch 160 SLA 1984; am § 10 ch 135 SLA 1990)

Notes to Decisions

“Judge.” —

The definition of “judge” in subsection (2) includes individuals who were acting in a judicial capacity at the time the alleged misconduct occurred. In re Johnstone, 2 P.3d 1226 (Alaska 2000).

Chapter 35. Miscellaneous Provisions.

Sec. 22.35.010. Geographic cost-of-living adjustment. [Repealed, § 19 ch 47 SLA 2013.]

Sec. 22.35.020. Copies of records for child support purposes.

If a copy of a court record is requested by the child support services agency created in AS 25.27.010 or a child support agency of another state, the official custodian of the record shall provide the requesting agency with a copy of the record, including any social security number that the record might contain. If the requested record is maintained by the court system in an electronic data base, the record may be supplied by providing the requesting agency with a copy of the electronic record and a statement certifying its contents. A requesting agency receiving otherwise confidential information under this section may use it only for child support purposes authorized by law.

History. (§ 11 ch 132 SLA 1998)

Revisor’s notes. —

In 2004, “child support enforcement agency created in AS 25.27.010 ” was changed to “child support services agency created in AS 25.27.010 ” in this section in accordance with § 12(a), ch. 107, SLA 2004.

Sec. 22.35.030. Records concerning criminal cases resulting in acquittal or dismissal.

The Alaska Court System may not publish a court record of a criminal case on a publicly available website if 60 days have elapsed from the date of acquittal or dismissal and

the defendant was acquitted of all charges filed in the case;
all criminal charges against the defendant in the case have been dismissed and were not dismissed as part of a plea agreement in another criminal case under Rule 11, Alaska Rules of Criminal Procedure;
the defendant was acquitted of some of the criminal charges in the case and the remaining charges were dismissed; or
all criminal charges against the defendant in the case have been dismissed after a suspended entry of judgment under AS 12.55.078 .

History. (§ 2 ch 1 SLA 2016; am § 100 ch 36 SLA 2016)

Cross references. —

For a statement of legislative intent regarding this section, see sec. 1, ch. 1, SLA 2016 in the 2016 Temporary and Special Acts.

Effective dates. —

Section 4, ch. 1, SLA 2016 makes this section effective October 1, 2016.

Editor's notes. —

Under sec. 3, ch. 1, SLA 2016, paragraphs (1) -- (3) of this section apply "to criminal charges concluded on or after the effective date of this Act by dismissal or by acquittal of the defendant."