Alaska Employment Law

Discussion of ”Ten Things I Learned the Summer of 2007″ at yesterday’s Employment Law Section meeting raised several issues.

Attorney fees under AS 09.60.070.  First, what is the burden of proof regarding the “serious criminal offense - preponderance, or proof beyond a reasonable doubt?  The statute doesn’t address that, but I would suggest that the standard is the ordinary civil one - preponderance.  While the statute arguably incorporates the Title 11 elements of the identified offenses, burden of proof is not an element of the crime, but something imposed by the Constitution.  

Rob Schmidt’s discussion of Jurgens v. City of North Pole suggests to me that the Constitution would not compel a burden higher than preponderance.  Application of the Matthews v. Eldridge test would not favor protecting the party who’s perpetrated a “serious criminal offense” over the victim.  Given legislative freedom to set the burden of proof for entitlement to full fees, and given the legislature’s failure to address the issue in AS 09.60.070, I suspect that the default civil standard of preponderance would prevail. 

Second, who is the decisionmaker on the issue of the commission of the criminal offense?  I would think it would be the judge, who makes other decisions about Rule 82 foundational requirements (prevailing party) and enhancements (complexity, etc.).    Avoidance of jury confusion would also support the assignment of this task to the judge - why belabor, and possibly confuse the jury with an interrogatory/special verdict about the presence of a criminal offense when such a finding is unnecessary to resolution of the merits?  This consideration would be even weightier if the court were to require a heightened burden of proof.  As with other Rule 82 kinds of issues, I assume the judge should make an explicit finding in support of full fees under AS 09.60.070.

Note that full fees are awardable against “the offender.”  AS 09.60.070(a).  Note, too, that an insurer of the responsible offender is liable for only Rule 82 fees.  AS 09.60.070(b).   The statute does not expressly address the liability of the offender’s employer.  But a plaintiff thinking of using AS 09.60.070 against an employer must consider whether the criminal offense is sufficiently related to the scope of employment that the employer remains liable on the merits.  It’s hard to imagine that the employer would be liable for full fees triggered by its employee’s conduct if (the employer) it had prevailed on the merits.   A claim of physically aggressive sexual harassment on the job by a supervisor would seem to fit this requirement and present the best case for a full fee award against an employer under the statute.

Section 1981 Claims against ANCSA Employers.  The District of Alaska case that may need to address this issue is Conitz v. Teck Cominco Alaska, Inc., Case No. 4:06-cv-0015-RRB.