State v. Dupere

Jul 11, 1986
S-620, S-640
Reporters:
,
Before:
Rabinowitz

OPINION ON REHEARING

PER CURIAM.

The State petitions for rehearing from our decision in State v. Dupere, 709 P.2d 493 (Alaska 1985), urging us to reconsider our statement that Dupere would still ‍​​​​​‌​‌‌​‌​​‌‌‌‌​​‌‌‌‌​​​​​​‌​​‌‌‌‌‌​‌‌‌‌​‌​​‌‌‌‌​​​​​​​‌‌‌​​‌​‌‌‌‌​​‌​​‌‌​‌​​‌‌‌​‌‌‌​‌​‌​‌‌​‌‌‍have a “right to a de novo trial under AS 09.50.-250 if he disagreed with the administrative decision and brought suit within thirty days of the decision.” Id. at 497. We granted the petition and now modify our opinion.

The statement quoted above is inconsistent with our holding in State v. Lundgren Pacific Construction, 603 P.2d 889 (Alaska 1979). In Lundgren we ‍​​​​​‌​‌‌​‌​​‌‌‌‌​​‌‌‌‌​​​​​​‌​​‌‌‌‌‌​‌‌‌‌​‌​​‌‌‌‌​​​​​​​‌‌‌​​‌​‌‌‌‌​​‌​​‌‌​‌​​‌‌‌​‌‌‌​‌​‌​‌‌​‌‌‍held that former Appellate Rule 45 1 applied to a claim filed in superior court after an adjudication before a contract claims review board and that such an action should be treated as an appeal of an agency decision. Id. at 892-93. Therefore, we take this opportunity to modify our opinion in this case as follows:

It ‍​​​​​‌​‌‌​‌​​‌‌‌‌​​‌‌‌‌​​​​​​‌​​‌‌‌‌‌​‌‌‌‌​‌​​‌‌‌‌​​​​​​​‌‌‌​​‌​‌‌‌‌​​‌​​‌‌​‌​​‌‌‌​‌‌‌​‌​‌​‌‌​‌‌‍would be inefficient to annul the results of the trial and send Dupere back to the administrative level. Although Dupere would have been required to develop the facts of the claim during the administrative proceeding, the superior court would have had the discretion to order a trial de novo under Alaska Appellate Rule 609. 2

Notes

1

. Former ‍​​​​​‌​‌‌​‌​​‌‌‌‌​​‌‌‌‌​​​​​​‌​​‌‌‌‌‌​‌‌‌‌​‌​​‌‌‌‌​​​​​​​‌‌‌​​‌​‌‌‌‌​​‌​​‌‌​‌​​‌‌‌​‌‌‌​‌​‌​‌‌​‌‌‍Appellate Rule 45 is now found in Appellate Rules 602 and 604. These rules govern the time, notice, and record of an appeal.

2

. This passage replaces the sentence at 709 P.2d at 497 which reads:

It would be inefficient to annul the results of the trial and send Dupere back to the administrative level, since ‍​​​​​‌​‌‌​‌​​‌‌‌‌​​‌‌‌‌​​​​​​‌​​‌‌‌‌‌​‌‌‌‌​‌​​‌‌‌‌​​​​​​​‌‌‌​​‌​‌‌‌‌​​‌​​‌‌​‌​​‌‌‌​‌‌‌​‌​‌​‌‌​‌‌‍he would still have the right to a de novo trial under AS 09.50.250 if he disagreed with the administrative decision and brought suit within thirty days of the decision. AS 44.77.040(c).