Crime & Courts

Southeast tribal officials are welcoming a decision by a state judge that’s based on their inherent right of self-governance. The latest opinion specifies that their jurisdiction includes the issuance of child support orders that the State of Alaska has, so far, refused to honor.

“I was just delighted,” said attorney Holly Handler who argued the case for the Central Council of Tlingit and Haida Indian Tribes of Alaska. CCTHITA is the sovereign tribal government for over 27,000 Tlingit and Haida Indians worldwide.

“The Tribe has been waiting for sometime to get a decision in this case,” said Handler.

Tribal court orders specifying the garnishment of income tax refunds, unemployment benefits, and Permanent Fund Dividends were ignored by the State of Alaska. Tribal courts had issued the orders for either child support, or for reimbursement of benefits paid out by the Temporary Assistance to Needy Families program, the tribe’s version of the Alaska Temporary Assistance Program.

CCTHITA filed the suit in January 2010. Oral arguments were held last April. Superior Court Judge Philip Pallenberg of Juneau issued the 16-page opinion on Tuesday, October 25 which referred to the recent State v. Native Village of Tanana opinion and the pivotal John v. Baker opinion issued by the Alaska Supreme Court in 1999. Justices ruled then that tribes had the sovereign authority to adjudicate custody of tribal children in their own courts, but they did not specifically touch on the issue of child support. Judge Pallenberg, however, writes that child custody and support are naturally intertwined. In State courts, for example, both issues are considered at the same time. Pallenberg considers monetary support as an integral part of any custody determination and a paramount duty that any parent has to their children.

“It’s not charting any strange and bizarre territory,” said Handler. “It’s really a direct application of John v. Baker to child support cases.”

David Voluck, chief judge for the Sitka Tribe of Alaska and family law magistrate for the CCTHITA, calls it a strong and solid opinion that’s based on centuries of precedent, principles, and legal reasoning of federal Indian law.

“Every other facet of family law that impacts a child — it is agreed — can fall under the inherent sovereighty of a tribal court,” said Voluck. “So it really makes no sense to argue that the financial support (or) the child support, that’s different.”

Voluck says he hears as many as thirty cases a month. He says he can recall at least ten cases that he’s heard where a poor working relationship between the tribe and the State has affected support for the family.

Attorneys who defended the State did not respond to inquiries seeking comment. But — among their claims outlined in briefing documents — the Central Council has no jurisdiction under Alaska’s version of the Uniform Interstate Family Support Act, the law that allows recognition of support orders from different states.

Judge Pallenberg’s opinion notes an amendment by the Legislature two years ago that stemmed from federal welfare reform legislation; the Uniform Interstate Family Support Act included a ‘tribe’ as part of the definition of a ‘state.’

Jessie Archibald, a staff attorney for the Tribal Child Support Unit, says the tribe’s child support order should be processed just as any state child support case is processed. The Tribal Child Support Unit has handled about 500 cases since its inception four years ago.

“Initially, there was just a small number of cases,” said Archibald. “As we’ve grown, there are more and more cases.”

State of Alaska Child Support Division Director John Mallonee says they are still reviewing the opinion. He declined to immediately comment on it or any potential impacts on his division’s operations. He referred further questions to the State Department of Revenue’s Commissioner’s office.

Additional related claims still must be decided in the case before a final judgment is issued. Since state attorneys did not respond for comment, it’s unknown whether they plan to eventually appeal.

The telephone survey was conducted between April and June of this year. Respondents were limited to English-speaking adult women, who live in the City and Borough of Juneau. Andre Rosay with the University of Alaska Anchorage Justice Center analyzed the data, and says despite those limitations, the survey had a relatively large sample size.

“Our original goal was, I think 550 respondents, and we were able to collect data from 600,” says Rosay.

While he thinks the result is a fairly conservative estimate of the amount of domestic violence and sexual assault in Juneau, Rosay says the survey was designed to get accurate information.

“We identify the survey as a survey of health and injury, and then we slowly get into more serious forms of victimization,” Rosay says. “So, we’ll begin with psychological aggression, then we’ll move on to coercive control, eventually we’ll talk about physical violence, and then towards the end of the interview, we ask about sexual violence.”

Rosay says past domestic violence and sexual assault surveys have been skewed by using legal definitions. This survey addressed specific behaviors.

“We didn’t ask respondents if they were a victim of an assault, instead we asked them, ‘Have your romantic or sexual partners kicked you? Have your romantic or sexual partners hit you with a fist or something hard?'” Rosay says.

The results were weighted to represent the number of women over the age of 18 in Juneau – about 11,700, according to the last Census. Based on those estimates more than 47 percent of women in the Capital City have experienced domestic violence and 35 percent have experienced sexual violence in their lifetime. Estimates for just the past year were shocking: 12 percent of women in Juneau were physically abused by a partner, and one percent were sexually assaulted or raped. Overall, Rosay says 55 percent of women in Juneau have been victims of either domestic abuse or sexual violence, or both.

“Our neighbors, our friends, our co-workers, our mothers, daughters, people that we care about and people that we love,” says Rosay.

Regional surveys like the one in Juneau have been done in Anchorage, Fairbanks and Bristol Bay this year, patterned after a 2010 statewide survey. However, Rosay cautions against comparing data from any of the studies.

“Because you’re talking about different types of assaults that are committed against different types of people, and that are perpetrated by different types of offenders,” Rosay says. “But what I can tell you, is that in all of the regions that we have studied this year, we are finding very high, unacceptably high, rates of violence against adult women.”

Alaska Council on Domestic Violence and Sexual Assault Executive Director Lauree Morton says the surveys will provide a baseline for futures studies to be conducted every five years.

“To give some time for community strategies to go into effect,” Morton says.

In Juneau, one of those strategies has been developed by AWARE, a nonprofit domestic violence and sexual assault prevention center. It’s a plan called “Pathways to Prevent Violence.” AWARE Executive Director Saralyn Tabachnick says three of the four pathways are at least in part targeted at young children and teens.

“I think that’s critically important. To give healthy messages early on and to repeat them early on,” Tabachnick says.

The Juneau Police Department also has taken an active role in fighting crimes against women. Julia Erickson is JPD’s police crisis intervention specialist, a social worker position created two years ago to follow up with victims of domestic or sexual abuse.

“To make sure that they get the resources that they need to support them through the court process, through getting into safe shelter, getting a protective order, whatever needs to be done to ensure their safety, and to stop the re-victimization of women,” says Erickson.

The survey of Juneau women was paid for as part of a legislative appropriation to the state Council on Domestic Violence and Sexual Assault. It also received support from Governor Sean Parnell’s Choose Respect initiative.

Phone Numbers:

AWARE’s Juneau Crisis Line: (907) 586-1090

AWARE’s Toll-free Crisis Line: 1-800-478-1090

JPD Police Crisis Intervention Specialist: (907) 586-0618

Alaska Council on Domestic Violence and Sexual Assault: (907) 465-4356

The next hearing in a case of three Arksansas teenagers accused of murdering a young Juneau man is not scheduled for another two months.

Arkansas court records indicate that a December 12th hearing has been scheduled for motions in the case.

Sixteen year old Timothy Tyler Norwood, 16-year old Clinton Lavon Ross, and 17-year old Richard Shelby Whybark have each been charged with second degree murder. They’re accused of beating 19-year old Kevin Thornton of Juneau to death last July in the Malvern, Arkansas-area.

Attorneys for the boys say the cases should be split up and proceedings should either continue in juvenile court or be dismissed. But — in their response — prosecutors argued against severing the cases between the three remaining defendants. They also argued against dismissal or transfer of the teenagers to juvenile court and maintained that their prosecution is still constitutional under Arkansas law.

A former Juneau attorney and judge who recently passed away had played an early role in keeping the Capitol in Juneau and upholding the rights of Alaskans in pivotal cases.

Robert Boochever passed away Oct. 9, 2011 at the age of 94.

Robert Boochever was a former New York resident and Army Captain who met his future wife, Army nurse Connie Maddox, while serving in Newfoundland. With his Cornell law degree already in hand before World War II, he started work in Juneau as an assistant U.S. Attorney, a federal prosecutor in a small town during territorial days. After roughly a year, he went into private practice, remaining with the same law firm in Juneau — Faulkner, Banfield, Boochever, and Doogan — for 25 years.

Boochever was active in a variety of local and statewide professional, civic, and community activities, ranging from the consolidation of the City and Borough of Juneau governments to drafting of a comprehensive plan, chairman of the first planning commission, even helping to create a road for a new ski area. Some of the various other organizations he participated in were the Boy Scouts (even though he had no sons), Explorer’s Club, St. Ann’s Hospital board, and the Juneau chapter of the American Red Cross.

“When my mom and dad first came to Juneau, there was just a whole group of young energetic people moving into the area,” said daughter Barbara Lindh. “They all worked really hard to make Juneau a vibrant community.”

Lindh says one especially important cause for her dad was making sure that the capital remained in Juneau. That included a debate with Representative Earl Hillstrand and some of the countless cases he advocated as a lawyer. He argued against an improperly-drafted referendum calling for a constitutional convention and against a citizen’s initiative that would have moved the capital.

“He was so, so disappointed. He just couldn’t believe it,” remembered Lindh when her dad was contacted about the Alaska Supreme Court’s decision in that case.

Boochever was named to the Alaska Supreme Court by Governor Bill Egan in 1972, although he initially applied to be one of the Court’s first justices shortly after Statehood.

He also had a hand in pivotal cases as a jurist. Alaska Supreme Court Justice Craig Stowers, who clerked for Boochever 25 years ago, suggests his work on the Alaska Supreme Court may be more notable than his later work on the Ninth Circuit Court of Appeals.

“Way back then, they were addressing issues of first impression even more frequently than we are today,” said Stowers. “Many of his decisions that he authored, I think, have really stood the test of time and have made a huge contribution to the law in Alaska, and the rights that people enjoy and just the way business is conducted on a day-by-day basis.”

For example, Boochever wrote the concurrence opinion in Ravin, the precedent-setting case on Alaskans’ right to privacy in the home.

Boochever also wrote the opinion in the Aguchak case in which a Scammon Bay couple were denied their due process rights. A department store filed a small claims action over an unpaid bill for a snowmachine and freezer in Anchorage, rather than in the rural court district in which the couple resided.

There are also the Glass opinions. Those are the basis for why officers now must always apply for a warrant from a judge before they record your conversations as evidence in a criminal case.

“I think my dad exemplified what the law and the judicial system should be,” said Lindh.

Then in 1980, President Carter named Boochever to the Ninth Circuit Court of Appeals. The largest federal appeals court received 13-percent of its cases from Alaska even though, until Boochever, no Alaskan sat as a judge on the panel.

Boochever has been variously called a gentleman with a warm heart, brilliant, meticulous, and demanding – at least while he was a judge when he frequently asked probing questions.

There are also untold young attorneys in the state who benefited from his mentorship, like Stowers who talked about his experience last week.

In 1986, about the same time that Stowers worked for him as a clerk in Juneau, Boochever began the move to Pasadena, California and was named senior judge on the appeals court – a designation that usually entails a reduced case load.

Boochever’s wife Connie was an advocate for the arts in Alaska, and he wrote poetry and told stories. He was also a tennis player, avid fishermen, bird viewer, and outdoorsman.

Boochever is survived by his four daughters which have remained in Alaska.

“To make the best of it, he just took us out like we were sons,” said Lindh as she described some of the fly-fishing and other family outdoor excursions.

Boochever’s daughters include an art teacher, a music and literature teacher, ski instructor, and public relations consultant. And then there are eleven grandchildren — including Olympic skier Hilary Lindh – and three great-grandchildren.

Boochever’s family says he passed away peacefully October 9th at his home in Pasadena. They had just celebrated his 94th birthday several days earlier.
In addition to any family memorial services, the Ninth Circuit Court of Appeals also has tentative plans to honor Judge Robert Boochever.

The Alaska Marine Highway System says the engines being used in their two fast ferries are defective and builders of the ships knew it when they delivered the ships only six years ago. But the ferries’ builders say it’s not their fault, and they shouldn’t be obligated to replace the engines when the warranty doesn’t cover it.

Judge Philip Pallenberg enters the courtroom lugging a stack of files and documents easily a foot high. He’s about to get handed a few more accordian folders that will extend that by several more inches.

“I think the state fired the opening salvo in this naval battle,” said Pallenberg. “So, I think the state should go first.”

October 7th’s skirmish in Juneau Superior Court was over the engines installed in the state’s fast ferries Fairweather and Chenega, relatively new ships with diesel-powered jet drives that push the catamarans at a nice 32-knot clip. That’s about twice the speed of the ferry system’s standard mono hulls.

State attorney Dana Burke is leading the attack for the ferry system. But he runs out of time during oral arguments to carefully cite excerpts of contract documents and internal memos. Burke says manufacturers of the fast ferries knew the engines were defective, almost as soon as they were installed. He said they breached warranties that called for repairs and – if necessary – replacement of the engines. For both ships, all eight engines have been valued at $20 million.

“And we cannot wait,” said Burke. He said both the Fairweather and Chenega are in danger of being decertified from passenger service in the very near future.

Burke wants the ship and engine builders’ liability extended to the engines’ defects, especially when they admitted to using the wrong kind of coolant (that accelerated corrosion in the engines).

Burke said that MTU instructed the state to stop using Power Cool 3000 because it might degrade a layer of molybdenum in the crank case cylinder bores.

David McMahon representing Robert Derecktor Incorporated said the state was not entitled to any more rights after expiration of a standard year-and-a-half warranty.

“These two vessels have been operated on an uninterrupted basis since they went into operation,” said Burke.

But Derecktor Shipyard is only one of the parties in the state’s lawsuit. The state’s real target is MTU Friedrichshafen and MTU Detroit Diesel, the German company that built the engines and the American company that did the subsequent repairs.

Jon Dawson, who has already been prepared for a response, said they already have a potential repair of an interstitial ring that they’ve been trying to install.

“Scare mongering and hyperbole aside, the principle issue in this case involves only one component of these engines: the engine block,” said Dawson.

Dawson said there are clear factual issues at what caused the faster-than-expected deteroriation; instead of the coolant – perhaps the Alaska environment, improper maintanence by ferry crews, even excessive vibration caused by a misaligned installation by the shipyard.

“You can’t wave a wand and resolve this wear issue when you don’t know what’s causing it,” said Dawson.

Dawson also says the engine warranty was assigned to Derecktor – the general contractor, not the final buyer of the vessels, or in this case, the state ferry system. And it did not include replacement of the entire engine, beyond the engine block.

But the plantiffs always have the last word in any courtroom argument.

“Something’s wrong with these engines. They’re lemons,” said Burke. “These were defective beyond delivery and someone is responsible.”

October 7th’s hour-and-twenty minute oral arguments focused not on any factual disputes, but primarily arcane and esoteric interpretations of liability and warranty law. It will be sometime before Judge Philip Pallenberg issues an opinion.

Prosecutors have filed their response motions in a case centering on three Arksansas teenagers accused of murdering a young Juneau man, but it’s unclear when the judge will consider the motions or next hold a hearing in the case.

16-year old Timothy Tyler Norwood, 16-year old Clinton Lavon Ross, and 17-year old Richard Shelby Whybark have each been charged with second degree murder. They’re accused of beating 19-year old Kevin Thornton to death in July in the Malvern area.

Attorneys for the boys say the cases should be split up and proceedings should either continue in juvenile court or be dismissed.

In series of responses filed late Monday, deputy Hot Spring County prosecuting attorney Richard Garrett argued against severing the cases between the three remaining defendants. He points to Arkansas state rules governing severance, such as whether there are conflicting defenses or antagonistic defendants, or whether the evidence favors one defendent more than another. A new standard is whether the judge or jury may be unable to distinquish the evidence between each offense and defendant. Garrett believes that the case does not meet those rules.

In another set of duplicated response motions, Garrett also argued against dismissal or transfer of the teenagers to juvenile court and maintained that their prosecution is still constitutional under Arkansas law. In part, he argues that prosecution of the three teenagers as adults is still valid because of the seriousness of the alleged crime, its aggressive or violent nature against a person, and the culpability of the defendant.

Hot Spring County court officials say the next hearing in the case has not been scheduled yet.

There was a fourth boy, a 14-year old, initially reported as allegedly involved in the encounter, but prosecutors have dropped charges against him.