affirmative defense in Alaska

2019The letter stated that she was “once again having to request a hearing on this matter.” In an October 23, 2017 superior court filing, which the Robinsons indicated was a “[s]tatus of complaint update,” they referred to this letter as a request for a second 4 See Pederson-Szafran v. Baily, 837 P.2d 124, 128 (Alaska 1992) (“The State asserts that its affirmative defense of failure to exhaust administrative remedies was not struck.”); Higgins v. Municipality of Anchorage, 810 P.2d 149, 150 (Alaska 1991) (“The trial court had denied the municipality’s affirmative defense that Higgins’s claim was b

1993Rather than require the plaintiff to prove his actual innocence in order to succeed, we hold that the defendant may raise the issue of the plaintiff’s actual guilt as an affirmative defense. 9 The attorney, or in this ease the State, as the party raising the affirmative defense, will thus have the burden of proof by a preponderance of the evidence as to the actual guilt of the plaintiff. 10 Morrow v. New Moon Homes, Inc., 548 P.2d 279, 294 (Alaska 1976) (“The party raising the affirmative defense generally bears the burden of proof as to that issue.”).

1995In Rollins v. Leibold, 512 P.2d 937, 940 (Alaska 1973), we stated: An affirmative defense can generally be defined as new matter not set forth in the complaint which constitutes a defense; or new matter which, assuming the complaint to be true, is a defense to it.

1988Cf., Alaska R.Civ.P. 8(c); Rollins v. Linbold, 512 P.2d 937, 940 (Alaska 1973) ("An affirmative defense can generally be defined as a new matter not set forth in the complaint which constitutes a defense; or a new matter which, assuming the complaint to be true, is a defense to it.") However, Koehring did not plead Earthmovers' independent negligence.

2022See AS 16.43.850(b)(1); (continued...) –5– 2723 A closer look at the defense of necessity and the trial court’s ruling Criminal defendants in Alaska may assert an affirmative defense of necessity to the extent permitted by common law, except when the defense is preempted or otherwise specifically delineated by the legislature.7 To prove the defense of necessity, a defendant must show by a preponderance of the evidence that: (1) the defendant committed the charged offense to prevent a significant evil; (2) there was no adequate alternative to the charged offense; and (3) the harm caused was not

2022See AS 16.43.850(b)(1); (continued...) –5– 2723 A closer look at the defense of necessity and the trial court’s ruling Criminal defendants in Alaska may assert an affirmative defense of necessity to the extent permitted by common law, except when the defense is preempted or otherwise specifically delineated by the legislature.7 To prove the defense of necessity, a defendant must show by a preponderance of the evidence that: (1) the defendant committed the charged offense to prevent a significant evil; (2) there was no adequate alternative to the charged offense; and (3) the harm caused was not

2017We therefore affirm the superior court’s dismissal of Giocondo’s complaint. 16 Abbott, 979 P.2d at 996-99 (applying federal equitable tolling doctrine to a plaintiff’s maritime claims). 17 Kaiser, 108 P.3d at 882 . 18 Cameron v. State, 822 P.2d 1362, 1365 (Alaska 1991). 19 Martin v. Mears, 602 P.2d 421, 428 (Alaska 1979) (quoting 5 CHARLES ALAN WRIGHT & ARTHUR R.

1987Martin v. Mears, 602 P.2d 421, 428 (Alaska 1979) (statute of frauds); Nizinski v. Currington, 517 P.2d 754 , 757 n. 6 (Alaska 1974) (absolute privilege for defamatory testimony by a witness in a judicial proceeding).

2010No. 5438, 2009 WL 250348 (Alaska App., Feb.4, 2009). [2] Id. at *2-*3. [3] Id. at *3. [4] Id. at *4 (Coats, C.J., dissenting). [5] Id. [6] Id. [7] State v. Garrison, 171 P.3d 91, 94 (Alaska 2007) (footnote omitted). [8] Id. [9] McGee v. State, 162 P.3d 1251, 1261 (Alaska 2007). [10] Bird v. Municipality of Anchorage, 787 P.2d 119, 120 (Alaska App.1990); see also AS 11.81.320 (adopting necessity as a justification to the extent permitted at common law and classifying it as an affirmative defense). [11] Cleveland v. Municipality of Anchorage, 631 P.2d 1073, 1078 (Alaska 1981) (quoting Nelson v.

2010No. 5438, 2009 WL 250348 (Alaska App., Feb.4, 2009). [2] Id. at *2-*3. [3] Id. at *3. [4] Id. at *4 (Coats, C.J., dissenting). [5] Id. [6] Id. [7] State v. Garrison, 171 P.3d 91, 94 (Alaska 2007) (footnote omitted). [8] Id. [9] McGee v. State, 162 P.3d 1251, 1261 (Alaska 2007). [10] Bird v. Municipality of Anchorage, 787 P.2d 119, 120 (Alaska App.1990); see also AS 11.81.320 (adopting necessity as a justification to the extent permitted at common law and classifying it as an affirmative defense). [11] Cleveland v. Municipality of Anchorage, 631 P.2d 1073, 1078 (Alaska 1981) (quoting Nelson v.

2009Still v. Cunmingham, 94 P.3d 1104, 1116-17 (Alaska 2004) (provision of the Equal Credit Opportunity Act, 15 U.S.C. § 169le(d), rather than Rule 82 governed award of fees where a violation of the federal act was established as an affirmative defense); Hayer v. Nat'l Bank of Alaska, 619 P.2d 474, 476 (Alaska 1980) (award of fees under the Federal Truth and Lending Act, 15 U.S.C. § 1640 (a2)(8), should have been made in favor of debtors who established a violation of the act and were entitled to a partial set-off).

2009Still v. Cunningham, 94 P.3d 1104, 1116-17 (Alaska 2004) (provision of the Equal Credit Opportunity Act, 15 U.S.C. § 1691e(d), rather than Rule 82 governed award of fees where a violation of the federal act was established as an affirmative defense); Hayer v. Nat'l Bank of *257 Alaska, 619 P.2d 474, 476 (Alaska 1980) (award of fees under the Federal Truth and Lending Act, 15 U.S.C. § 1640 (a)(3), should have been made in favor of debtors who established a violation of the act and were entitled to a partial set-off). 61.

1980This court further explained the burden of proof requirement in Dolchok v. State, 519 P.2d 457, 458 (Alaska 1974): Subdivision (b) means that once evidence of insanity is introduced, the burden is on the state to prove sanity beyond a reasonable doubt. [2] The defense must come forth with "some evidence" supporting the defense of insanity before the burden of proof shifts to the state. [3] The "some evidence" test requires that there be "more than a scintilla, but less than that which would compel a reasonable doubt as a matter of law." [4] In this case, although the court made no specific fin

1980This court further explained the burden of proof requirement in Dolchok v. State, 519 P.2d 457, 458 (Alaska 1974): Subdivision (b) means that once evidence of insanity is introduced, the burden is on the state to prove sanity beyond a reasonable doubt. 2 The defense must come forth with “some evidence” supporting the defense of insanity before the burden of proof shifts to the state. 3 The “some evidence” test requires that there be “more than a scintilla, but less than that which would compel a reasonable doubt as a matter of law.” 4 In this case, although the court made no specific findings

2019The letter stated that she was “once again having to request a hearing on this matter.” In an October 23, 2017 superior court filing, which the Robinsons indicated was a “[s]tatus of complaint update,” they referred to this letter as a request for a second 4 See Pederson-Szafran v. Baily, 837 P.2d 124, 128 (Alaska 1992) (“The State asserts that its affirmative defense of failure to exhaust administrative remedies was not struck.”); Higgins v. Municipality of Anchorage, 810 P.2d 149, 150 (Alaska 1991) (“The trial court had denied the municipality’s affirmative defense that Higgins’s claim was b

2001In Shaw v. State, 861 P.2d 566 , 572 & n. 9 (Alaska 1993), we held "guilt-in-fact" to be an affirmative defense that, like the "traditional defenses" of assumption of risk and comparative negligence, focuses on "how plaintiffs might be responsible for their own injuries." See also Ardinger v. Hummell, 982 P.2d 727, 735-36 (Alaska 1999) (noting that we have applied public policy rationale for barring recovery only in cases involving serious criminal conduct that intentionally threatened safety of others, such as homicide, rape, and arson). [54] See Wilson, 627 P.2d at 631 . [55] Id. [56] See id

2019Generally, once an instruction is warranted, the necessity defense is an affirmative defense that the defendant must prove by a preponderance of the evidence.5 But in McGee, the Alaska Supreme Court held that, in the context of a criminal mischief case where the defendant places necessity at issue, the State bears the burden of proving beyond a reasonable doubt that the defendant had no reasonable ground for believing that his actions were necessary.6 The McGee court noted that, under Alaska law, the offense of criminal mischief requires proof that a person intentionally damaged the property o

2010No. 5438, 2009 WL 250348 (Alaska App., Feb.4, 2009). [2] Id. at *2-*3. [3] Id. at *3. [4] Id. at *4 (Coats, C.J., dissenting). [5] Id. [6] Id. [7] State v. Garrison, 171 P.3d 91, 94 (Alaska 2007) (footnote omitted). [8] Id. [9] McGee v. State, 162 P.3d 1251, 1261 (Alaska 2007). [10] Bird v. Municipality of Anchorage, 787 P.2d 119, 120 (Alaska App.1990); see also AS 11.81.320 (adopting necessity as a justification to the extent permitted at common law and classifying it as an affirmative defense). [11] Cleveland v. Municipality of Anchorage, 631 P.2d 1073, 1078 (Alaska 1981) (quoting Nelson v.

1983In Barrett v. Byrnes, 556 P.2d 1254, 1255 (Alaska 1977), this court held that when an affirmative defense was raised for the first time after the plaintiff had rested her case, it could not be said to have been tried by her “implied consent.” Similarly, here we hold that the guaranty issue was not tried at all in this case.

1983See, e.g., Barrett v. Byrnes, 556 P.2d 1254, 1254-55 (Alaska 1977); Kupka v. Morey, 541 P.2d 740 , 754 n. 39 (Alaska 1975).

2022See AS 16.43.850(b)(1); (continued...) –5– 2723 A closer look at the defense of necessity and the trial court’s ruling Criminal defendants in Alaska may assert an affirmative defense of necessity to the extent permitted by common law, except when the defense is preempted or otherwise specifically delineated by the legislature.7 To prove the defense of necessity, a defendant must show by a preponderance of the evidence that: (1) the defendant committed the charged offense to prevent a significant evil; (2) there was no adequate alternative to the charged offense; and (3) the harm caused was not

2010No. 5438, 2009 WL 250348 (Alaska App., Feb.4, 2009). [2] Id. at *2-*3. [3] Id. at *3. [4] Id. at *4 (Coats, C.J., dissenting). [5] Id. [6] Id. [7] State v. Garrison, 171 P.3d 91, 94 (Alaska 2007) (footnote omitted). [8] Id. [9] McGee v. State, 162 P.3d 1251, 1261 (Alaska 2007). [10] Bird v. Municipality of Anchorage, 787 P.2d 119, 120 (Alaska App.1990); see also AS 11.81.320 (adopting necessity as a justification to the extent permitted at common law and classifying it as an affirmative defense). [11] Cleveland v. Municipality of Anchorage, 631 P.2d 1073, 1078 (Alaska 1981) (quoting Nelson v.

2019Generally, once an instruction is warranted, the necessity defense is an affirmative defense that the defendant must prove by a preponderance of the evidence.5 But in McGee, the Alaska Supreme Court held that, in the context of a criminal mischief case where the defendant places necessity at issue, the State bears the burden of proving beyond a reasonable doubt that the defendant had no reasonable ground for believing that his actions were necessary.6 The McGee court noted that, under Alaska law, the offense of criminal mischief requires proof that a person intentionally damaged the property o

2019Generally, once an instruction is warranted, the necessity defense is an affirmative defense that the defendant must prove by a preponderance of the evidence.5 But in McGee, the Alaska Supreme Court held that, in the context of a criminal mischief case where the defendant places necessity at issue, the State bears the burden of proving beyond a reasonable doubt that the defendant had no reasonable ground for believing that his actions were necessary.6 The McGee court noted that, under Alaska law, the offense of criminal mischief requires proof that a person intentionally damaged the property o

2010No. 5438, 2009 WL 250348 (Alaska App., Feb.4, 2009). [2] Id. at *2-*3. [3] Id. at *3. [4] Id. at *4 (Coats, C.J., dissenting). [5] Id. [6] Id. [7] State v. Garrison, 171 P.3d 91, 94 (Alaska 2007) (footnote omitted). [8] Id. [9] McGee v. State, 162 P.3d 1251, 1261 (Alaska 2007). [10] Bird v. Municipality of Anchorage, 787 P.2d 119, 120 (Alaska App.1990); see also AS 11.81.320 (adopting necessity as a justification to the extent permitted at common law and classifying it as an affirmative defense). [11] Cleveland v. Municipality of Anchorage, 631 P.2d 1073, 1078 (Alaska 1981) (quoting Nelson v.

2010No. 5438, 2009 WL 250348 (Alaska App., Feb.4, 2009). [2] Id. at *2-*3. [3] Id. at *3. [4] Id. at *4 (Coats, C.J., dissenting). [5] Id. [6] Id. [7] State v. Garrison, 171 P.3d 91, 94 (Alaska 2007) (footnote omitted). [8] Id. [9] McGee v. State, 162 P.3d 1251, 1261 (Alaska 2007). [10] Bird v. Municipality of Anchorage, 787 P.2d 119, 120 (Alaska App.1990); see also AS 11.81.320 (adopting necessity as a justification to the extent permitted at common law and classifying it as an affirmative defense). [11] Cleveland v. Municipality of Anchorage, 631 P.2d 1073, 1078 (Alaska 1981) (quoting Nelson v.

2002P. 8(e)(1). [12] Sykes v. Melba Creek Mining, Inc., 952 P.2d 1164 , 1168 n. 4 (Alaska 1998); cf. Gamble v. Northstore P'ship, 907 P.2d 477, 481-83 (Alaska 1995) (stating that "[a]n affirmative defense is adequately pleaded if it provides the opponent fair notice of the nature of the defense" and deeming an answer that stated, "Plaintiffs are barred by estoppel" and "Plaintiffs are barred by res judicata" as sufficient to raise affirmance as an affirmative defense because the pleaded defenses "invok[ed] some of the same concerns in general terms"). [13] Op. at 665-666 [14] Id. at 665. [15] The

2002Sykes v. Melba Creek Mining, Inc., 952 P.2d 1164 , 1168 n. 4 (Alaska 1998); cf. Gamble v. Northstore P'ship, 907 P.2d 477, 481-83 (Alaska 1995) (stating that "(aln affirmative defense is adequately pleaded if it provides the opponent fair notice of the nature of the defense" and deeming an answer that stated, "Plaintiffs are barred by estoppel" and "Plaintiffs are barred by res judicata" as sufficient to raise affirmance as an affirmative defense because the pleaded defenses "invok[ed] some of the same concerns in general terms"). .

2009Still v. Cunmingham, 94 P.3d 1104, 1116-17 (Alaska 2004) (provision of the Equal Credit Opportunity Act, 15 U.S.C. § 169le(d), rather than Rule 82 governed award of fees where a violation of the federal act was established as an affirmative defense); Hayer v. Nat'l Bank of Alaska, 619 P.2d 474, 476 (Alaska 1980) (award of fees under the Federal Truth and Lending Act, 15 U.S.C. § 1640 (a2)(8), should have been made in favor of debtors who established a violation of the act and were entitled to a partial set-off).

2007Still v. Cunningham, 94 P.3d 1104, 1116-17 (Alaska 2004) (provision of the Equal Credit Opportunity Act, 15 U.S.C. § 1691e(d), rather than Rule 82 governed award of fees where a violation of the federal act was established as an affirmative defense); Hayer v. Nat'l Bank of Alaska, 619 P.2d 474, 476 (Alaska 1980) (award of fees under the Federal Truth and Lending Act, 15 U.S.C. § 1640 (a)(3), should have been made in favor of debtors who established a violation of the act and were entitled to a partial set-off}. 61 .

1979See note 20 supra. In Johnson v. State, 511 P.2d 118, 127 (Alaska 1973), we embraced the framework delineated in AS 12.45.083(b) as the judicial standard for allocating the burden of proof when insanity is placed in issue at trial. 21 .

1977See Alto v. State, supra; Dolchok v. State, supra; Johnson v. State, 511 P.2d 118, 126-27 (Alaska 1973). 19 .

1979The meaning of this section was explained in Dolchok v. State, 519 P.2d 457, 458 (Alaska 1974): "Subdivision (b) means that once evidence of insanity is introduced, the burden is on the state to prove sanity beyond a reasonable doubt." In addition, in Alto v. State, 565 P.2d 492, 497 (Alaska 1977), we said: "Although we have never before articulated a definite legal standard regarding the quantum of evidence which must be adduced to trigger the state's burden to prove sanity, ... the rule of law seems to be that `some' evidence of the defendant's insanity is sufficient... . [W]e hereby adopt i

1979The meaning of this section was explained in Dolchok v. State, 519 P.2d 457, 458 (Alaska 1974): “Subdivision (b) means that once evidence of insanity is introduced, the burden is on the state to prove sanity beyond a reasonable doubt.” In addition, in Alto v. State, 565 P.2d 492, 497 (Alaska 1977), we said: “Although we have never before articulated a definite legal standard regarding the quantum of evidence which must be adduced to trigger the state’s burden to prove sanity, ... the rule of law seems to be that ‘some’ evidence of the defendant’s insanity is sufficient. . [W]e hereby adopt it.

2022Some of these decisions involve affirmative defenses such as diminished capacity, but many of them also involve self-defense, which is not an affirmative defense 17 Grant v. State, 621 P.2d 1338, 1341 (Alaska 1981). 18 Id. (quoting People v. Karassik, 396 N.Y.S.2d 765, 771 (N.Y.

1981In fact, the evidence was so clear that the failure to charge the affirmative defense could be deemed a denial of fundamental justice.” 396 N.Y.S.2d at 771 .

1995We have held consistently that (1) a judgment creditor bears the burden of showing that the garnishee has property of the judgment debtor, and (2) the garnishee has the burden of proving an affirmative defense to the garnishment action, von Gemmingen I, 789 P.2d at 355 ; Steenmeyer Corp. v. Mortenson-Neal, 731 P.2d 1221, 1225 (Alaska 1987); Anchorage Helicopter Serv., Inc. v. Anchorage Westward Hotel, 417 P.2d 903 (Alaska 1966).

1990The respective burdens to be borne by “gar-nisher” von Gemmingen and “garnishee” 6 First National Bank are specified in Steenmeyer Cory. v. Mortenson-Neal, 731 P.2d 1221 (Alaska 1987): von Gemmingen “had the burden of establishing that at the time of service of garnishment process [the bank] had in its possession personal property belonging to [the Finstads] or owed a debt to [the Finstads]”; the bank in turn “had the burden of establishing an affirmative defense.” Id. at 1225 (citing Anchorage Helicopter Serv.

1995Koehring, 763 P.2d at 504, 508 .

1989Id.

1987Ostrosky v. State, 704 P.2d 786, 792 (Alaska App.1985). 1 The defense is established where the defendant shows that he or she acted in the belief the charged conduct did not violate the law and that this belief arose from reasonable reliance upon an official statement of the law.

1986In Ostrosky v. State, 704 P.2d 786 (Alaska App.1985), we held that reasonable mistake of law based on an official misstatement is an affirmative defense, which the defendant must prove to the court by a preponderance of the evidence.

2025Cir. 2009) (noting that “an entrapment defense may form the basis for a viable claim of innocence” (citing United States v. Hanson, 339 F.3d 983, 988 (D.C.

2025For example, in cases where self-defense is invoked, the court of appeals has held that “the question for the fact-finder is whether the amount of force used by the defendant was reasonable under the circumstances.”18 But the precise meaning of the 13 Adam F., 551 P.3d at 559, 563-64 . 14 Assault can also be shown if “by words or other conduct” a person “recklessly places another person in fear of imminent physical injury.” AS 11.41.230(a)(3).

2025See, e.g., United States v. James, 928 F.3d 247, 253-54 (3d Cir. 2019) (noting that “a claim of legal innocence [is] an adequate assertion of innocence” because “a defendant who has a complete affirmative defense, such as self-defense or entrapment, is not legally culpable”); United States v. Berkeley, 567 F.3d 703, 708 n.2 (D.C.