Crime & Courts

The lawsuit between a Juneau gun shop and the family of a painter murdered at the Fred Meyer store may’ve been the highest-profile case considered by the Alaska Supreme Court on Tuesday. But it wasn’t the only significant case considered by justices. They also heard an appeal of a dismissed suit that centered on the tumultuous and controversial tenure of Hoonah’s former police chief.

Jefferson Hankla is no longer on the job. Questions were initially raised about his alleged lack of experience and judgment for the job. Then, his year-and-a-half long term resulted in complaints and accusations that divided the community before he eventually resigned in September of 2009.

Three female dispatchers, including one who says she was sexually harassed by Hankla on a regular basis, and a former police officer who says he was the subject of retaliation, filed suit against Hankla and the City of Hoonah. But that case never made it to trial.

Attorney Doug Mertz says that was a mistake.

“There is liability unless they can show that he was not a supervisor, or we can show that — essentially — she reasonable thought he was a supervisor,” says Mertz.

Mertz says complaints about sexual harassment at the Hoonah Police Department were ignored and an outside auditor’s report that called for end to the pornography in the police department was also ignored. A sexual harassment policy in the employee handbook was never distributed. The Mayor’s file of complaints against Hankla and Hankla’s own personnel file both disappeared.

Three of the plantiffs in the case include Annette McLaughlin, Karen Mills, and Carole Welsh who alleged that Hankla repeatedly harassed her by asking to see her breasts. On her last day on the job, Welsh alleged that Hankla — as chief — harassed her one last time as she turned in her timecard.

Lieutenant William Mills alleged that he was forced to resign from his Hoonah job and take a position in Craig.

Mertz says the evidence included “allegations that (Hankla) spread around the community, the fact that he subjected Lt. Mills’ mother to a complaint to the Postal authorities, a criminal complant, that was unfounded.”

Attorney Jan Levy, arguing for Hankla and the City of Hoonah, says the former chief is not individually liable either as an employer or co-worker under the Alaska Human Rights Act. The harassment allegedly started while Hankla was a patrolman and then when he was a chief during Welsh’s last day on the job. That prompted the Justice Craig Stowers to quiz Levy on the legal distinction between a superior or senior employee, and a supervisor.

“If it were the case that harassing conduct is something that affects terms of employment, if that’s enough to make you a supervisor, (then) any co-worker can affect the terms of someone else’s employment by harassing them,” says Levy.

Later, justices pointed out separate instances in Welsh’s affidavit and deposition in which she was told to consider all the patrol officers as her supervisors.

Levy’s co-counsel Vance Sanders countered Mills’ involuntary and constructive discharge claim. Sanders says Mills never said during a deposition that he was harassed, wages were never affected, there were no physical threats or demeaning comments, and there were no changes in hours or conditions that would indicate intolerable work conditions.

Sanders suggested looking to Mills’ resignation letter in which he had nothing negative to say about the department.

“That notice was a three-week notice that he gave to the Hoonah Police Department,” says Sanders who says Mills was only required to give two-weeks notice.

Mertz, on rebuttal, claimed that the retaliation against Mills’ family and friends included Hankla threatening to file a career-crippling complaint against Mills to the Alaska Police Standards Council.

Justices took all of the arguments under advisement. The Hoonah case was one of several considered by the Alaska Supreme Court in Juneau this week.

One of the justices may draft the opinion which may then be circulated among his or her colleagues on the bench. They may then add a concurring or dissenting opinion and continuing circulating it before it’s released to the public. That could take anywhere from six-months to a year.

Chief Justice Walter Carpeneti Wednesday took the opportunity of his final address to the legislature to ask lawmakers to consider some alternatives to the judicial system that have developed in the state. He referred to a new concept – called Smart Justice – that considers the possible result of every action taken by the justice system.

Chief Justice Carpeneti told legislators that the justice system at all levels, in every case, needs to consider the cost of its actions on the system’s resources, on public safety and on the potential of all citizens.

“In practice, it means making criminal justice decisions that reserve our most costly response to crime – prison time – for those cases where less costly alternatives will not effectively protect the public or rehabilitate the perpetrator.”

The major point of the address was a call to include the judiciary in tailoring prison or treatment sentences to offenders. He said that many people presume a judge is able to consider risk and rehabilitation when sentencing a convict.

“Indeed, under our current law, judges are generally required to take an offender’s prospects for rehabilitation into account. But the modern reality of the sentencing process is much different from the assumption. Under our state’s presumptive sentencing laws, in place since 1978, the judge’s role in sentencing is actually quite limited.”

He says the reality of a vast majority of cases allows judges only to approve or disapprove a sentence already worked out between prosecution and defense attorneys. He called it “superficial control,” and said that he often felt like an observer in the case, not a participant.

“The old adage of “if you can do the crime, you can do the time” is appealing on a gut level, and it has driven our criminal justice thinking for many years. It sounds tough, it rings true, and it seems only fair. But as we now know, the idea that jail time is the fitting response to every crime, or even to most crimes, has become an expensive and a possibly unnecessary proposition.”

He said the presumptive sentencing laws were written before there were studies and techniques available to predict criminal activity or to rehabilitate offenders. Carpeneti quoted the Chief Justice of the Missouri Supreme Court.

“There is a better way. We need to move from anger-based sentencing that ignores cost and effectiveness to evidence-based sentencing that focuses on results.”

Senate Judiciary Chairman Hollis French said the speech reinforced some of the work done in the legislature. He said his focus has been on reviewing the increasing number of non-violent offenders who are put in prison.

Nearly six years after the murder of Simone Kim in Juneau, the question of whether the gun shop should be held liable is now up to the Alaska Supreme Court.

Oral arguments were held Tuesday in the civil suit that followed the criminal case. The lawsuit largely turns on PLCAA, Protection of Lawful Commerce in Arms Act, the federal law which shields gun manufacturers and dealers from liability stemming from criminal or unlawful use of a firearm. Exceptions include a seller accused of negligence, negligent entrustment, or breaking any other laws on the sale of firearms.

Jonathon Lowy of the Brady Center to Prevent Gun Violence alleged that it was an illegal sale or just another one of the 200 guns that were sold off the books at Rayco Sales in Juneau.

“To put that in context, ninety-percent of gun dealers have zero guns missing from inventory,” says Lowy.

Former Nevada resident Jason Coday arrived in Juneau in August of 2006. He stopped in Rayco Sales, left $200 on the counter, and walked out with a .22 Ruger rifle while store owner Ray Coxe was preoccupied elsewhere. No Form 4473 was filled out by Coday. No background check.

As part of the argument that it was an off-the-books sale, Lowy contrasted apparent discrepancies in Coxe’s statements. Was the store busy? Or was Coday really the only customer left?

“There’s only one customer in the store. Coxe is personally attending to him,” alleges Lowy. “(Coday) looks strange.”

Kim, who sent money home to his parents in Anchorage, was working as a painter on the Fred Meyer expansion project. Kim apparently did not know Coday, but Coday was convicted at trial of walking up to Kim and firing four shots at point blank range.

Kim’s sister and parents filed a wrongful death lawsuit against Coday and Coxe, alleging negligence, including inadequate security measures, a store employee leaving a customer alone with a weapon, no background check, no firearms transaction record, and a malfunctioning video survelliance system. Coday eventually defaulted out and the suit against Coxe was dismissed about a year-and-a-half ago.

Tony Sholty, arguing for Ray Coxe, says the rifle was simply taken or stolen. It was not purchased or sold. He says without additional facts to support that, then it would be only speculation or conjecture to say that it was purchased. Sholty was quizzed repeatedly by Supreme Court Justice Craig Stowers on the issue until the judge came up with a hypothetical instance about his purchase of Sholty’s pen on the courtroom podium.

“Do you think that a reasonable person in the jury would conclude that I purchased your pen for five-dollars?” asked Justice Stowers.

“A reasonable person would think that you may have thought you were buying the pen,” Sholty answered. “A reasonable person wouldn’t have to think that I was intending to sell you the pen for five-dollars.”

The Brady Center’s Jonathon Lowy also says that PLCAA doesn’t bar Kims’ general negligence claim. But Lael Harrison, arguing for Coxe, says that’s not what Congress intended.

“Particularly (with) the exceptions for negligent entrustment and negligence per se,” said Harrison. “It doesn’t make sense that there would be exceptions for those two particular types of negligence unless Congress intended that all other types of negligence be barred.”

Lowy also argues the PLCAA violates the Tenth Amendment. Not so, says Ben Kingsley of the U.S. Department of Justice.

“The basic point is that this is a pre-emption statute,” said Kingsley. “Under the supremacy clause, Congress can pre-empt state law and change the substantive law as it applies to the individual citizens of a state.“

He says the law’s constitutionality on that and other claims has already been upheld in most other jurisdictions.

“Congress can, in some sense, commandeer the state judiciary to apply federal law when federal law governs,” said Kingsley. “And that’s what this statute does.”

During a long rebuttal, Lowy mentioned that Alaska’s would be the first state Supreme Court to consider the constitutionality of the law. And he also questions other intrepetations of the law.

“Under Coxe’s view of the law, he could literally place guns on the sidewalk in front of his store,” said Lowy. “Have a tin cup, and say ‘contribute money if you’d like’ for the guns. And that would be completely legal because there is no knowing sale.”

Arguments in the case were viewed by about thirty students from Juneau-Douglas High School teacher Gary Lehnhart’s U.S. History class. After a chance meeting with Kingsley before Tuesday’s hearing, Lehnhart says he invited him into his class to discuss the case, and Kingsley told them what he’d argue before justices.

Justices took all of Tuesday’s arguments under advisement. Typically, justices take as much as nine-months to draft and circulate an opinion amongst themselves before it is released.

Other cases heard by justices included a lawsuit that stemmed from alleged sexual harassment at the Hoonah Police Department, and an appeal of issues in a Juneau couples’ divorce.

Previous related stories on this case:
Family appeals suit against Juneau gun retailer
Coday murder trial continues

Video of oral arguments on Feb. 28, 2012:

There’s one less defendant in the state’s lawsuit against builders of the fast ferries.

Superior Court Judge Philip Pallenberg says he received notice of a bankruptcy filing by Derecktor Shipyards of Connecticut. That means the state’s case against them is put on hold indefinitely. But the case against the builders of the engines for the vessels is still expected to go to trial in September. Derecktor employees can testify as witnesses, but they are no longer defendants. At least for now.

The sudden turn of events seemed to catch all the attorneys off-guard during a Monday hearing in Juneau Superior Court. Even Judge Pallenberg admitted, that in this circumstance with multiple defendants in a civil suit, he had not encountered it before.

MTU Friedrichshafen and MTU Detroit Diesel, German builders of the engines and American company that did the engine repairs for the fast vehicle ferries Chenega and Fairweather, abruptly cancelled depositions in the case that were scheduled to start this week. Attorney Jon Dawson said they needed to get a handle on “where they were in the process.” Attorneys Dana Burke and Micheal Lessmeier, representing the State and the Alaska Marine Highway System, were worried that the stay would become a mechanism for other parties to to be uncooperative in the discovery process and delay a trial. Dawson said he took umbrage at that, and said that they were being cooperative.

Adding to the complications, Derecktor’s legal representative in Alaska, retired Superior Court Judge Douglas Serdahaly, who is a lawyer experienced in other maritime and fishing cases, abruptly pulled out last week. The motion to withdraw was filed under seal known only to Judge Pallenberg. It was open to speculation that it was because of either some unknown conflict by Serdahaly or the developing bankruptcy. The lack of Alaska representation may hobble Derecktor’s efforts to defend their interests should they emerge from bankruptcy.

Multiple media outlets (one noted here) in the Northeast have reported on last month’s bankruptcy filing for Derecktor’s Bridgeport, Connecticut operation. A weak economy and lack of funds is blamed. Liabilities may range from $1 million to $10 million with the shipyard landlord second on the creditor list. Bridgeport Port Authority says it’s owed $387,000. Derecktor had just emerged from a 2008 bankruptcy about five months ago.

In a hearing in Juneau Superior Court last October that played out much like a naval skirmish, all the parties in the fast ferry case argued over interpretations of warranty and liability law, whether the engines were defective at the start, and whether the builders already knew that. An opinion has yet to be issued from that hearing. But because the State’s claims against Derecktor are intertwined with those filed against MTU, it’s unclear if that opinion will now ever be signed and issued.

The state essentially alleges the engines were not up to the task and the manufacturers tried to hide that fact. In filings made in November, state attorneys say the original design and construction contract specified a hundred-thousand hours for the high-performance diesel engines to power the high-speed catamarans. That comes out to about 25 years at about 4,000 hours a year. According to court documents, the State and Alaska Marine Highway System say that the hundred-thousand hour, 25-year specification was later deleted from the subsequent purchase order contract by Derecktor and MTU, and that both companies denied any obligation for a 25-year service life. The state is trying to add new charges including tortious abetment and breach of implied warranty.

The next hearing in the case is set for April 24th.

The FBI is warning of a so-called “Grandma Scam” in Juneau.

Con artists are again targeting senior citizens, posing as a family member who is stranded, has been in a car accident and needs money, according to Eric Gonzalez, the supervisory special agent for the FBI in Alaska.

“In each case, the caller claimed to have broken their nose and that’s why they sound differently. And then they asked the senior citizen to please send them money to handle either legal fees or medical fees, and the sums are usually about 25-hundred dollars,” Gonzalez says.

Gonzalez says in most instances, the caller sounds believable and has personal information about the family, often easy to find these days on Facebook.

“That’s really an easy way social-engineer some information. Usually you call a person up, pretend to be someone and try to elicit information from them. Now you just go to Facebook and you can learn all about a person; you can look at family photos,” Gonzalez says. “So with Facebook and these social media platforms the person who’s using those things need to make sure they understand not only the privacy rules of that platform, but also the privacy settings for their accounts.”

The FBI has had several reports of the calls in Juneau recently. Gonzalez says if anyone gets such a call, just hang up.

The scam is similar to one that often hits people’s email.

Prosecutors have charged three people for fraudulent collection of Alaska Permanent Fund dividends.

Kenneth Wilson Comfort II, 49, was indicted by a Juneau grand jury on Friday on charges of unsworn falsification and second degree attempted theft. Both of the charges are felonies and specifically focus on Comfort’s alleged untruthful disclosure of his absences on his 2011 PFD application. Comfort’s next court appearance is scheduled for March 8.

Also indicted on Friday were Slimane Benarroudj, 50, and Kheira Benarroudj, 37, on a total of eleven felony counts of unsworn falsification, scheme to defraud, theft, and attempted theft. The indictment alleges that the Benarroudjs made false statements on dividend applications for themselves and their four children dating back to 2008. The amount allegedly stolen was at over $41,000, including the Alaska Energy Rebates that were distributed during one year. Warrants in the amount of $50,000 and $10,000 were issued for each of the Benarroudjs.

Based on electronic court records, both Comfort and the Benarroudjs had recently resided in the Anchorage area.