Alaska Employment Law

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An employment opinion, and two other opinions that may be of interest to the employment bar; and a Comment

Set-aside criminal convictions and licensing: In State, Bd. of Nursing v. Platt, 2007 WL 3121603 (Alaska Oct. 26, 2007), the Supreme Court reversed the Superior Court (Charles Huguelet) and held that the Nursing Board may properly consider a felony conviction (forgery) that has been set aside, even where the applicant (here, a Nurse Aide) had successfully completed an SIS probationary period.  The court held that a set-aside conviction is still a “conviction” for purposes of the statute that authorizes the Board to deny licensing to any person who “has been convicted of a crime . . ..”  (Emph. added.)

The court also held that substantial evidence supported the Board’s finding that Platt’s forgery conviction  (before she started nursing) “related to the qualifications, functions, or duties of a certified nurse aide,” because Platt’s forgeries arose from her abuse of dependent relationships, which could be replicated in the duties of a nurse aide. 

Mark Osterman of Kenai represented Platt.  David Brower of the Juneau AG’s Office represented the Board.

A recent AEL post discussed licensing and moral turpitude.

Right of privacy, undisclosed tape recordings, and legal ethics: In State, Alaska Office of Victims’ Rights, 2007 WL 3121660 (Alaska Oct. 26, 2007), the Court invalidated various aspects of the 1996 Victim Rights Act that interfere with criminal defense investigations without adequate justification, including restrictions on undisclosed tape recordings of victims and witnesses.  In the course of the opinion, the court stated:

Although undisclosed recording is not unethical for lawyers, a lawyer may not represent that an interview is not being recorded when in fact it is.   ABA Comm. on Ethics and Prof’l Responsibility, Formal Opin. 01-422 (2001).  . . . The Ethics Committee of the Alaska Bar Association, which had previously adopted the American Bar Association’s 1974 opinion, followed the lead of the American Bar Association and in 2003 issued a new ethics opinion reflecting the current views of the American Bar Association.  Alaska Bar Ass’n, Ethics Opinion No.2003-1, Undisclosed Recording of Conversations by Lawyer (2003).

(Citations omitted.) 

Comment: It is striking that neither the majority nor the dissent (Fabe) addresses the public/private status of the party intruding on the witness/victim privacy.  In both Luedtke v. Nabors Alaska Drilling, Inc., 768 P.2d 1123, 1129-30 (Alaska), and Miller v. Safeway, Inc., 102 P.3d 282, 289 (Alaska 2004), the Court had stressed that the Privacy clause of the Alaska Constitution restrains only state action, and not the actions of, for instance, a private employer.   

In the Victims Right case, the persons seeking to make undisclosed recordings were private parties (private counsel for criminal defendants), though certainly private parties who were engaged in a public proceeding in which the state had compelled their clients to participate.  Ironically, the State here advocated for a broad reading of the privacy clause. 

Instead of holding that the Privacy clause was irrelevant to the balancing, the majority of the Court held that the victim/witness’ admitted privacy interests were outweighed by those of the criminal defendants.   

Susan Orlansky of Feldman, Orlansky & Sanders in Anchorage represented Murtagh, et al.  Robert Blasco of Robertson, Monagle & Eastaugh in Juneau represented the Victims’ Rights Office.

Allocation of punitive damages, excessiveness of punitive damages:  In a third opinion, the Court upheld the constitutionality of AS 09.17.020(j), which allocates 50 % of punitive damages to the State, but also held that the State’s portion must be reduced, pro rata, by the plaintiff’s fees and costs.  In so doing, the Court used this tool of statutory construction: 

Because the statutory language is ambiguous, we apply equitable consideration to determine whether to apply a pro rata deduction of costs to the state’s share of the award.  If the state is not required to pay its pro rata share of the litigation costs, it efffectively receives the windfall of a judgment in its favor without incurring any costs.  In order to ensure that the state is not unjustly enriched at the expense of litigants, we read AS 09.60.080 to require a pro rata deduction of costs from the state’s share of the punitive damages award.

The Court also held that the nearly 30:1 ratio of punitives to compensatories was not disqualifying, given that a) “punitive damages may sometimes be the only appropriate damages recoverable for spoliation, especially when the jury finds no liability for the underlying claims,” and b) the criminal penalties for evidence tampering (up to $1,000,000) were “well above” the punitive damages awarded here ($150,000). 

The case is State v. Carpenter, 2007 WL 3121658 (Alaska Oct. 26, 2007). 

Ray Brown and Linda O’Bannon of Dillon & Findley in Anchorage, and Jack McGee of Juneau represent the plaintiff.  Leslie Longenbaugh and Merrill Lowden of Simpson, Tillinghast in Juneau represent the defendants.  Jason Mogel of the Anchorage AG’s Office represented the State.