Public Safety

Fourteen attorneys are in line to be the next Alaska Supreme Court justice.

Morgan Christen has already departed the state’s highest court after being appointed to the Ninth Circuit Court of Appeals.

The pool of applicants includes some familiar names in Alaska law and the courts. They include private attorneys Kevin Clarkson of Anchorage, Andy Harrington of Fairbanks, Daniel Westerburg of Homer, and Marc Wilhelm of Anchorage. Also applying are Anchorage attorneys William Callow, Peter Maasen, and Don McClintock.

Some of the notable judges who’ve applied include Charles Huguelet of Kenai, Michael McDonald of Fairbanks, Frank Pfiffner of Anchorage, Eric Smith of Palmer, and Joel Bolger, formerly of Valdez and Kodiak and now on the Alaska Court of Appeals. Also applying are administrative law judges Jeffery Friedman and Terry Thurbon.

Public hearing dates have not been set yet. But typically the Alaska Judicial Council will investigate the background of all the applicants, survey Bar members, and then interview each applicant.

Once at least two nominees are selected by the council, the Governor will have 45-days to make an appointment.

Supreme Court Chief Justice Walter Carpeneti announced on Wednesday that recently-retired justices Warren Matthews and Robert Eastaugh have volunteered to help hear cases as justices pro tem until an appointment is made.

Robert Dean Kowalski’s attorney entered a plea of ‘not guilty’ in Juneau Superior Court on Friday.

The 50-year old Montana inmate is being charged with first and second degree murder in connection with the death of his girlfriend in Yakutat over fifteen years ago. A jury trial is currently set for May 29th. But that date may get moved until later in the year because of the amount of evidence, a packed court calendar, and Kowalski already serving a sentence for a separate case in Montana.

Troopers believe that Kowalski stayed with 39-year old Sandra M. Perry at Yakutat’s Glacier Bear Lodge in July, 1996.

Troopers say that a man staying in the next room at the lodge reported hearing an argument, then a gunshot, followed by silence. Kowalski told Troopers that he armed himself with a shotgun after he and Perry heard a bear outside their room. But Kowalski said he tripped onto the bed and fell on top of Perry and the gun discharged when he got up.

Kowalski was never charged for Perry’s death. The prosecutor assigned to the case apparently determined that there was not enough evidence then to disprove Kowalski’s claim of an accidental shooting.

The Alaska Bureau of Investigation’s Cold Case Unit reviewed the Yakutat incident after Kowalski was convicted in Montana of killing another girlfriend there, 45-year-old Lorraine Kay Morin in March of 2008. The Kalispell Daily Inter Lake newspaper in Montana reported that the incident included the arrest of Kowalski after a 31-hour standoff at his home that involved SWAT teams from three jurisdictions. The gun used in the shooting was recovered from his home. Kowalski told investigators the gun accidentally went off as he was falling backward into a chair.

Kowalski’s bail was maintained at $1,000,000.

Public defender Eric Hedland has been initially assigned to the case.

Juneau Superior Court Judge Louis Menendez, who successfully defended a client accused of another shooting at another Yakutat lodge that very same year, will likely preside over the Kowalski trial.

The Alaska Court of Appeals has upheld a sentence for a Juneau man convicted for abducting and sexually assaulting a 15-year old girl.

Christopher Allen Scholes was sentenced to 70-years in prison for the crime that occurred in December 2008. Thirty-years out of the composite sentence was suspended.

Scholes’ defense argued before the Court of Appeals that it was excessive. That was partly based on Scholes’ prospects for eventual rehabilitation and his failure to take medication for his bipolar disorder before the crime was committed.

Superior Court Judge Pallenberg said during a sentencing hearing that it was a “horrible, brutal, savage attack,” and the “circumstances (of the crime) don’t justify it or excuse it.”

The composite sentence was a bit more than what prosecutors wanted, but it had more suspended time.

The victim’s parents said it wasn’t harsh enough. Her father called it a “Twinkie Defense,” noting that thousands of people with bipolar disorder don’t go around kidnapping and assaulting girls.

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: