*1 BAKER, Appellant, Grant C. ALASKA,University

UNIVERSITY OF Fairbanks,

of Alaska and Frank

Williams, Appellees.

No. S-9108.

Supreme Court of Alaska.

4,May Baker, se,

Grant C. pro Anchorage. Paul Eaglin, B. University of Alaska Office Counsel, the General Fairbanks, Ap- pellees. MATTHEWS, Before Justice, Chief EASTAUGH, BRYNER, CARPENETI, Justices.

OPINION CARPENETI, Justice.

I. INTRODUCTION Grant Baker was unlawfully terminated from his non-tenured engineering professor- ship at Alaska, Fairbanks (UAF) in 1998. After the court in Fairbanks held that the termination violated contractual and remanded the case to UAF for a damages determination, UAF for a damages determination, UAF ad- ministratively awarded Baker damages. Baker, who had then moved to *2 a response to appeal in administrative in the appeal filed an Anchorage, by UAF. motion was award the argued that He there. court administrative UAF fraught that the and inadequate appeal was The administrative a also filed Baker ad unfair. the had been As process UAF. problems created with he that requirement charged the with relief was plea agency, UAF ministrative adminis- for the costs maintaining the the and preparing litiga- E. Mary record, protracted Judge that arguing Superior Court trative record.1 follow and the costs failed to expenses, had living that UAF tion, ordinary found Greene rejected it im- UAF's made and doing in so termination rules the the with associated pre- instead entirety. Judge of Greene prepay the in its him possible for and by Baker prepared re- superior court substituted the record. paring and preparation, The record appeal attorney. his his plea and dismissed jected this it, sub with the associated practice Because motion prosecute. the failure ex litigation Baker's relief, stantially increased plea for Baker's denying in erred court penses. appeal. his of the dismissal we reverse Judge before eventually prevailed Baker AND PROCEEDINGS II FACTS rights his contractual Greene, that who found non-retention the because been violated had engineer- non-tenured was a Baker Grant timely no- untimely. Because was notice Alaska, University of at the ing professor the to utilize UAF have forced would tice spring 1998 the end of the After Fairbanks. Judge system, grievance applicable formerly fishing. semester, commercial went Baker entitled held that Greene found that August, he returning in Upon sys- the former under proceeding grievance him a notice mailed had administration UAF that determined then Judge Greene tem. budget constraints cited that non-retention to at least contractually entitled was Baker Under his non-retention. the reason and one appointment continuing year of one contract, the non-reten- Baker's the terms and remanded appointment of terminal year under contract remain he would tion meant of dam- a determination case to UAF after employment, year for a terminal ages. filed a Baker rehired. not be he would which was Baker remand, ruled that UAF, On with grievance inter- (plus salary for his damages Baker's heard council grievance A UAF benefits, moving retirement, and est), from the opinion despite an case claims other Baker's denied expenses. UAF it that office Counsel's Alaska General damages. council grievance jurisdiction. no had the UAF appealed Baker recommended favor in Baker's found Anchorage. in decision aca- another at least be retained that he damages amount argued He ten- with dean consult year, demic ad that UAF's inadequate and was awarded any the non-retention faculty before ured unfair. had been process ministrative negative faculty, and non-tenured by private counsel represented initially was removed evaluations performance himself represented later appeal, but Interim file. The UAF personnel cash exhausted when ree- council's rejected the grievance Provost credit.2 whole, finding that Baker's ommendations motions of various months After several not violated were contractual indi- record, sought an regarding a lawsuit filed Baker then non-retention. sig- exception After gency Fairbanks. superior court adminis- preparing the costs of prepay the place, discovery had taken pretrial nificant Despite UAF's appeal. for the trative lawsuit converted unpaid he asked when remained 604(b)(1). R.App. P. 1. See attorney's fees that he affied 2. Baker $50,000, which costs of any failure to rebut of the factual assertions contends the superior indigeney affidavit, erred not relieving him of pre court denied his motion. requirement when he made a factu then prosecution dismissed for lack of based al showing of indigence. But on his failure to provide 604(b)(1)(B){iv) for and provide a standard *3 administrative record. superior The or superior test for the apply when it also awarded in attorney's fees to considers motions for hardship relief; in UAF. appeals. stead, it establishes appellant the shall pay transcript and file costs and III. STANDARD OF REVIEW may required to make payment: advance ordinarily We review the dismissal of In the agreement absence of an between an prose failure to parties the or an order of the court to the cute under the abuse of discretion standard.3 contrary, all reasonable costs incurred in case, however, This requires an examination connection with preparing transcript of Alaska Rule Appellate of Procedure and the copy court's agency of the file shall 604(b)(1)(B)(iv). When interpreting ap be borne appellant. The preparing pellate court, rule of we exercise our inde agency may require payment advance of 4 pendent judgment "adopt the rule of the costs as reasonably estimated law persuasive that is most in light prece agency.6 5 dent, reason, policy." Nothing in this suggests rule that a court's IV. discretion to relax the DISCUSSION rule's pay- advance ment requirement hinges on a strict showing Superior The Court Erred in Dismissing indigence. The recognizes rule general Appeal Failure to Prosecute. judicial authority to enter an order "to the court dismissed ap- contrary" of the usual payment advance ar- peal prosecute for failure to Appellate under rangement, places no restrictions on the Rule 511.5 because he did not power court's to exercise that authority. for the costs of preparing the administrative This vests court with broad transcript and appeal, record for required discretion upon a showing of by Appellate 604(b)(1)(B)iv). Rule any good reason to avoid rigidly enforcing question before us is whether advance requirement. While court should have accommodated Baker's re- indigence certainly is relief, sufficient for it is quests for relief from this re- not in all necessary. cases quirement. emphasize We this case 2. Appellate 604(b)(1)(B)(iv) Rule allows does not require us to determine whether court to deviate or- Baker should be absolved of duty dinary procedure upon a showing of for preparing the record and transcript, just good cause. whether he must in advance. 1. Appellate 604(b)(1)(B)(iv) ordi- Appellate 604(b)(1)(B)(iv) does narily requires advance payment not indigence, mention any or other substan the administrative factor, rec- tive in granting discretion supe to the ord, but provide a standard rior court to issue an order relieving an relieving appellant this appellant requirement . But we recently have princi reaffirmed the 3. Rule 511.5 allows an "involve of a civil interpretation rule, we appeal to be prosecute. dismissed for failure to independent exercise our judgment"). State, Geczy See Resources, v. Dep't Natural (Alaska 1996) 924 P.2d 103, 104 (citing Cowitz Ha, 5. Guin v. (Alaska 591 P.2d 1284 n. 6 Alaska Workers' Bd., 721 P.2d Comp. 638 n. 1979). (Alaska 1986)). 2 4. Ford v. Municipality Anchorage, 604(b)(1)(B)(iv). R.App. 813 P.2d P. Cf. (Alaska 1991) 655 (holding that in cases that Also, his expenses. cover his loans to secure account" party's bank "the size of ple These income. exceeded expenses often opportu party's [that] "foreclose not should in- they were inter frivolous: Accordingly, we were not expenses heard."8 nity to be moving his part, curred, most 604(b)(1)(B)Gv) to allow pret Rule Anchorage to ob- Fairbanks family from prepay appellant to relieve illegal termi- following his Good tain employment cause.9 good ment and to cover the in Fairbanks nation a factual consists context in this cause litigation. a substantial appellant of showing specific cir turn hardship. nowWe Alas- fifth, University of And case. cumstances relationship be- employee. Given ka substan- case, the existence showed it is reasonable parties in this tween support re- hardship tial court relieved that had the to conclude sufficient *4 604(b)(1)(B)(iv) pre- in was UAF requirement, lief from recov- in terms of protect itself position to a in the preparation of record ering the costs interpretation our Based on dispute. prevailed event UAF has Baker 604(b)(1)(B){iv), that conclude we hardship good cause of substantial existence establish These cireumstances shown showing of relief grant support to His affidavit relief. is sufficient to pre- necessary to inability to raise prepayment. from costs, the submis- pay preparation record No First, illegally terminated. with consistent financial statement of a sion con- illegality of UAE's disputes the one now to affidavit, of UAF the failure and proceedings. instigated these duct that hardship of substantial the existence refute in first admin- Second, conduct UAF's relief from today that to our conclusion lead increase a substantial appeal caused istrative granted. have been should failed to UAF expenses. litigation in Baker's in- only on focused preparation, on record own rules its follow relevant consider other did not come and rejection court's resulting in the Consid- making its determination. factors substitu- entirety and the in its record UAF's us to leads relevant factors of all eration his Baker and by prepared a record tion of that substantial Baker showed conclude expense to additional attorney at substantial pre-payment his hardship precluded financial Baker. costs, and that preparation of record showing. university not rebut in attor did more Third, cost him case (over paid in $50,000) was than he ney's fees v. holding in Jordan our argues that ($48,464).10 damages But UAF case. in this eontrols Jordan11 holding of Jor and the facts misconstrues admin- Fourth, second time Baker's Jordan, Baker appellant Unlike in- dan. underway, he had was istrative attorney an pay for ability to the state his not ask that precluded did debt that curred employee who 865, defending as an his was he 872 Corp., P.2d Progressive 986 Peter 7. who, as a wrongfully terminated been litigation-pre- had result, 1999) potential (Alaska (examining hardship financial substantial discovery expensive cluding appointing effect prepayment. warranting relief involving plaintiffs of "mod- litigation master in Co., Penney (quoting v. J.C. Malvo means" est 1973))). 575, (Alaska pay 587 512 P.2d certainly to hire was 10. rights as help his attorney him defend to an clearly UAF's harmed 587). employee; he was Malvo, at P.2d (quoting 512 Id. at 873 8. Also, contrary the dissent's illegal conduct. assertion, choice may had much not have only the circumstances We decide 9. for the rec- funds set aside he could to whether prepayment, not from warrant case attorney's paying his preparation instead ord pay of rec- the cost underlying obligation to subject to an may have been fees Those fees. Accordingly, preparation under Rule ord 34.35.430. attorney's under AS lien on relied indigency standards criminal this case. relevance limited are of dissent 1999). (Alaska crime; 1258 983 P.2d charged no with Additionally, was or costs. Baker merely the costs. The costs amounted to some sought relief from $3,500. that he Some weeks later he received a prepay Jordan, costs. In lump sum settlement of approximately we appellant concluded that the was not indi University. This was gent because "the Jordans had addition to his regular annual salary of more $300,000 in marital assets" and $50,000. that "suffi cient assets existed for [him] to for an obligation prepa- attorney without encumbering the family ration costs actively litigated. Baker's contrast, By home." the Baker family had many counsel filed pleadings subject on this greater amount assets, of debt than and no and the court made separate three non-essential assets that could be encum rulings-on 20, May 23, June September liquidated bered or litigation costs. 15, 1998, all affirming that Baker had the importantly, More Baker appears to have obligation to prepay had necessary monthly expenses that were at costs. After attorney withdrew in to, Octo- equal least exceeded, and at times 1998, ber of Baker made still another motion family's monthly income. Finally, Baker was seeking waiver of his prepayment obligation. unable to private secure lines of credit. This was denied on December These 1998. Fi- facts distinguish Baker's situation nally, on March facts underlying holding our in Jor *5 entered an order giving days Baker ten dan. Accordingly, more Jordan does not control prepay to request the costs. This order for hardship relief. warned Bak- er that if the costs were paid by not then an superior The court failed to consider indi order of dismissal would be entered. Baker cators of substantial hardship other than did pay not 21, costs and April on Baker's salary. Record evidence shows that the court dismissed appeal in a five-page faced substantial hardship. financial order explaining the history of this case. erred finding he was not entitled to relief from the requirement my opinion In the court did not abuse its preparation record costs be prepaid.13 discretion in declining to relieve Baker of his obligation to prepay costs. The record V. CONCLUSION shows that Baker had adequate income to prepay improperly preparation record denied Bak- costs. er relief He from the received income of prep- more than prepayment during aration pendency appeal 604(b)(1)(B)(iv), Further, which court. led to the dis- had adequate missal of appeal budget time to without addressing of the costs. the merits More eighteen Because the elapsed months erred in this regard, time we he was first REVERSE and notified of his obligation to REMAND for proceedings on pay merits. until appeal was dismissed. His nonpayment seems to have resulted from

FABE, Justice, not choices participating. he made that were spurred not strict economic necessity. He pay decided to MATTHEWS, Justice, Chief dissenting. litigate to whether he had an obligation to Grant Baker filed this ap- prepay, rather than simply to prepay. And peal on August August On he decided to use the lump sum 1997, he was notified that he would be liable which he received during pendency costs and pay to counsel and reduce the debt on require could his credit cards.1 Both Baker and his attor Id. at 1263. we do not reach presented the other issues Baker. 13. Since we remand to the court for an 1. The record reveal how the $48,000 appeal on the solely merits based on the failure was allocated attorney's as between fees to relief from the requirement, costs and credit card debt. But in March of have he would ney knew easily he could costs purpose funds aside set have payment. lump sum financial substantial measure One to relief litigant entitle will

hardship which normal inability to because in Criminal contained is eligi are crime accused Defendants 39.1. total if their counsel court-appointed ble sufficient not are resources financial ex household "allowable after for counsel are autho Courts deducted.2 are penses" household "allowable assume rized equal are expenses" guidelines poverty adjusted federal family of For household.3 defendant's Anchor size-living family

five-Baker's has annu $24,400.4 Baker figure is age, this exceeding this far resources financial al action a civil pursuing is And amount. hard It is benefit. financial personal a more why he should see hardship than financial standard relaxed crime. accused

those reasons, hold I would the above For its discere- abuse not did *6 of his obli- declining to relieve tion pay in advance gation record. INC., Appellant, INDUSTRIES,

ALPINE Appellee. FEYK,

Lori

No. S-9169. Alaska.

Supreme Court 11, 2001.

May 39.1(b)(1). P. Alaska R.Crim. 2. See spent, $48,000 had been after the attor- indicating that total affidavit filed an were 39.1(h)(2). ney's fees and P. R.Crim. 3. See $15,000 re- $50,000, about this sum no more indicates unpaid. This mained Bulletin 'See Admin. paid was available at least attorney, obligations. meet