Opinion
Supreme Court No. S-11521.
November 23, 2005.
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Dan A. Hensley, Judge. Superior Court No. 3AN-03-11524 CI.
Lois Gilbert, pro se, Anchorage.
Dean T. Gates, Assistant Municipal Attorney, and Frederick H. Boness, Municipal Attorney, Anchorage, for Appellees.
Before: Bryner, Chief Justice, Matthews, Eastaugh, Fabe, and Carpeneti, Justices.
MEMORANDUM OPINION AND JUDGMENT
Entered pursuant to Alaska Appellate Rule 214.
Introduction
1. Lois Gilbert appeals from a superior court order denying three motions: (1) a motion to accept a late-filed appeal from an administrative order; (2) a motion to waive or reduce her cost bond; and (3) a motion to waive or reduce her filing fees. Because the court did not abuse its discretion by denying Gilbert's motion to accept the late-filed appeal, and since Gilbert failed to brief the issues arising from the denial of the other two motions, thereby waiving any such arguments, we affirm.
2. This case arises from three tickets issued to Lois Gilbert by the Municipality of Anchorage's Department of Animal Control. Two tickets were issued to Gilbert in March 2002 for allowing her Irish setter to roam without a leash, in violation of Anchorage Municipal Code 17.10.020(A). Gilbert contested these tickets, claiming that Animal Control had violated her rights as a disabled person under the Americans with Disabilities Act (ADA). Following an administrative hearing, Animal Control upheld the tickets on November 18, 2002. Gilbert did not timely appeal this decision, as set out more fully below. The third ticket was issued to Gilbert on June 13, 2003. Gilbert requested a hearing to contest this ticket on July 18, 2003 but her request was rejected as untimely. She filed an appeal of this rejection in the superior court, claiming that the ticket violated the ADA, the Fair Housing Act (FHA), as well as municipal law. In addition to her appeal, she filed the three motions relevant to this appeal: (1) a motion for the court to accept a late-filed appeal of Animal Control's November 18, 2002 order and to consolidate that appeal with her appeal related to the June 13, 2003 ticket; (2) a motion to waive the the requirement that she post a cost bond; and (3) a motion to waive or reduce her filing fees. Superior Court Judge Dan A. Hensley denied these motions without comment in a single order on December 23, 2003.
At the time of Gilbert's tickets in March 2002 Anchorage's leash law read as follows:
17.10.020 Control and confinement of animals.
A. Except as otherwise required or permitted by this title, an owner of an unclassified animal, other than a wolf hybrid, shall restrain it at all times. An owner of a classified animal or wolf hybrid shall confine and control such animal as required by chapters 17.40 and 17.60 respectively.
42 U.S.C. §§ 12101- 12213 (2000).
42 U.S.C. §§ 3601- 3619, 3631 (2000).
3. Gilbert appeals from this order. Her brief addresses the substance of her ADA claims arising from the March 2002 tickets as well as the ADA, FHA, and municipal law claims included in her appeal of the June 13, 2003 ticket, but we need reach only the issues addressed in the superior court's December 23, 2003 decision: (1) Did the superior court err in denying Gilbert's motion to accept her late appeal, and (2) did the superior court err in denying her motions to waive or reduce the cost bond and filing fees?
Although Gilbert's points on appeal before the superior court only generally alleged that Animal Control's conduct violated municipal law, her brief states that Animal Control violated AMC 5.20.020 and .050. Similarly, while her points on appeal before the superior court did not mention any state law claims, even in general terms, her brief maintains that Animal Control violated her rights under AS 18.80.210.
The superior court did not abuse its discretion in refusing to accept Gilbert's late appeal of Animal Control's November 18, 2002 order.
4. On March 8, 2002 Animal Control received a report that Gilbert's dog Ki was off leash and defecating at Lions Park in Mountain View. Animal Control Officer Fox found Gilbert in her car with the windows sealed. Officer Fox reported that Gilbert admitted that she allowed her dog to run free and that she did not pick up her dog's feces. According to Fox, Gilbert drove around the parking lot with her windows rolled up while her dog ran loose. Officer Fox did not ticket Gilbert at that time. Animal Control received another complaint on March 11, 2002, that Gilbert "had let her dog run loose again on March 9, 2002 while she drove around the [parking] lot with her windows rolled up." Animal Control Officer Burns visited Gilbert at home on March 12, 2002. According to Burns, Gilbert admitted the allegations and claimed the defense of disability. Burns issued two tickets to Gilbert: Notice of violation (NOV) # 25301 for the March 8, 2002 incident and NOV #26728 for the March 9, 2002 incident.
5. Gilbert timely filed a request for a hearing to review the two NOVs pursuant to AMC 17.05.100(A). The hearing was originally set for April 6, 2002 but Gilbert requested that the hearing be rescheduled several times. The hearing was eventually held on July 22, 2002 before Administrative Hearing Officer Timothy G. Middleton. At that hearing, Gilbert asserted that Animal Control's decision to enforce AMC 17.10.020 against her violated the ADA. Gilbert claimed that she was physically unable to control Ki with a leash and that the ADA required Animal Control to accommodate her disability by allowing her to control Ki using voice commands. Gilbert also requested an additional hearing to present medical evidence of her disability. The hearing officer accommodated her request and an additional hearing was held on the evening of September 25, 2002. A doctor testified on Gilbert's behalf. Animal Control did not present any contrary medical evidence.
AMC 17.05.100(A) states:
Hearings. A person served with a NOV or administrative decision has a right to a hearing on the NOV or administrative decision by filing a written demand for hearing on forms provided by the animal care and control center no later than 15 business days after service of the NOV or administrative decision.
6. The hearing officer submitted his recommendation, along with findings of fact and conclusions of law, on November 7, 2002. He concluded that Gilbert had unleashed Ki at Lions Park on both March 8 and 9, 2002. He also concluded that "the evidence shows appellant driving around with her car window rolled up meaning voice control is not possible." Although the hearing officer found that Gilbert's medical condition substantially limited her ability to walk, he did not agree that an injury to her right shoulder prevented her from controlling Ki with a leash. Additionally, he seems to have found that Ki was not a service animal and that the ADA does not require public entities to accommodate a disabled person's non-service animal. Based on these findings, the hearing officer recommended that the tickets be affirmed and that Gilbert should be required to pay $125.00 in fines. The hearing officer's findings of fact, conclusions of law, and recommended decision were adopted on November 18, 2002. The final order was distributed on December 11, 2002.
The hearing officer wrote:
No provision of the ADA cited by appellant addresses enforcement of local laws regulating animals that are not service animals. There has [been no] authority cited for the proposition that the Municipality must exempt appellant from compliance with Title 17. Also, despite an extensive research of case law interpreting provisions of [the] ADA and the regulation promulgated to implement the law, the undersigned has found no cases which would support the proposition that the [Municipality of Anchorage] cannot enforce its laws regulating animals.
In re Notices of Violation #25301 #26728 issued to Lois Gilbert, A02-001565 A02-001525 (Municipality of Anchorage Dep't Health Human Servs. Nov. 18, 2002) (adopted by final decision and order) (emphasis added).
7. Gilbert attempted to file an appeal with the superior court on January 9, 2003, but her filing was rejected because it did not comply with the appellate rules. Over two months later, Gilbert attempted to file a corrected appeal. She attached a motion to accept late appeal to this filing, explaining that health problems and the strains of other litigation had prevented her from filing a timely appeal. This attempt was also rejected because it did not comply with appellate rules.
The Notice of Appeal Deficiency from the superior court clerk's office, dated April 1, 2003, catalogued the problems with Gilbert's filing:
Your paperwork was left without being checked[;] certification is not complete[;] paperwork already has an assigned case number on it that belongs to another person's case[;] financial statement[s] are reused — (I have included new forms).
8. Over five months later, Gilbert again attempted to appeal this decision by filing a motion with the superior court to accept her late appeal. She explained that, after she had tried to file her appeal in March 2003, the packet containing her appeal was returned to her and "dropped behind some furniture with some other mail and was only recently discovered" after Gilbert received housekeeping assistance. She asserted that her disability prevented her from cleaning her house on her own — implying that her disability prevented her from discovering the packet. Judge Hensley rejected this motion in a December 23, 2003 order.
9. After Judge Hensley denied two motions for reconsideration, Gilbert filed this appeal. We review for abuse of discretion a superior court's decision whether to relax Appellate Rule 602(a)(2) and accept a late-filed appeal of a final administrative order. "We will reverse a ruling for abuse of discretion only when left with a definite and firm conviction, after reviewing the whole record, that the trial court erred in its ruling."
Appellate Rule 602(a)(2) states:
Appeals from Administrative Agencies. An appeal may be taken to the superior court from an administrative agency within 30 days from the date that the decision appealed from is mailed or otherwise distributed to the appellant. If a request for agency reconsideration is timely filed before the agency, the notice of appeal must be filed within 30 days after the date the agency's reconsideration decision is mailed or otherwise distributed to the appellant, or after the date the request for reconsideration is deemed denied under agency regulations whichever is earlier. The 30-day period for taking an appeal does not begin to run until the agency has issued a decision that clearly states that it is a final decision and that the claimant has thirty days to appeal. An appeal that is taken from a final decision that does not include such a statement is not a premature appeal.
Kilmer v. Dillingham City Sch. Dist., 932 P.2d 757, 763 n. 6 (Alaska 1997).
Varilek v. City of Houston, 104 P.3d 849, 852 (Alaska 2004) (quoting Betz v. Chena Hot Springs Group, 742 P.2d 1346, 1348 (Alaska 1987)).
10. A superior court has discretion to relax the timeliness requirement of Appellate Rule 602(a)(2) and accept a late filed appeal "where a strict adherence to [the rules of appellate procedure] will work surprise or injustice." We are "not inclined to cut off rights of appellate review because of some failure on the part of the litigant to comply with the rules, if to do so would work surprise or injustice or would result in countenancing plain error apparent on the face of the record."
Alaska R. App. P. 521.
Jerrel v. Kenai Peninsula Borough Sch. Dist., 567 P.2d 760, 766 (Alaska 1977) (quoting Orbeck v. Wheeler Constr. Co., 394 P.2d 781, 782-83 (Alaska 1964)). We have repeatedly held that a superior court abuses its discretion by not relaxing Appellate Rule 602(a)(2) when an administrative agency's final order does not inform a party of its finality or of the party's right to appeal. See, e.g., Carlson v. Renkes, 113 P.3d 638, 642 (Alaska 2005); Paxton v. Gavlak, 100 P.3d 7, 12 (Alaska 2004); Skudrzyk v. Reynolds, 856 P.2d 462, 463 (Alaska 1993); Manning v. Alaska R.R. Corp., 853 P.2d 1120, 1124 (Alaska 1993). This rule does not apply to this case because Animal Control's November 18, 2002 order clearly specified that it was a final order and that Gilbert must file an appeal within thirty days.
11. We have outlined three general considerations for determining when a superior court should relax the thirty-day deadline for filing administrative appeals. "They are the right to appellate review, the willfulness and extent of the rules violation and the possible injustice that might result from dismissal." The burden lies on the party seeking relaxation of the rules to show that their strict application would result in surprise or injustice to that party. In Jerrel v. Kenai Peninsula Borough School District, we addressed these considerations by examining (1) the importance of the interest sought to be defended on appeal, (2) the reasons for the late filing, (3) whether the record indicates that the underlying administrative proceeding was unfair, and (4) the interest of the agency in obtaining a final determination. Since none of these considerations favors Gilbert, we conclude that Judge Hensley did not abuse his discretion.
Jerrel, 567 P.2d at 766.
Id. (citing Cook v. Aurora Motors, Inc., 503 P.2d 1046, 1049 (Alaska 1972)).
State, Dep't of Highways v. Burgess Constr. Co., 575 P.2d 792, 796 (Alaska 1978).
567 P.2d 760, 766-67 (Alaska 1978).
12. First, the interests Gilbert seeks to defend are not sufficiently important to justify relaxing the thirty-day deadline. Gilbert maintains that the March 2002 tickets violated her rights under the ADA because the city must reasonably accommodate her disability — including her use of her dog Ki as a "service animal." Gilbert claims that the March 2002 tickets violated her rights under the ADA because, in order to maintain Ki as a service animal she must exercise him, her disability requires her to control Ki during exercise by voice command, and she was ticketed for controlling Ki by voice command. We disagree.
13. We have no doubt that disabled persons have an important interest in the rights accorded to them by the ADA. However, the record demonstrates that no such interest is at stake in this case: Gilbert was not ticketed for using voice command; she was ticketed for exercising no control over her dog. The hearing officer concluded that the evidence showed "appellant driving around with her car window rolled up meaning voice control [was] not possible." Since Gilbert's interest, as a disabled person, in controlling her dog by voice command was not implicated by the November 18, 2002 order, the superior court's decision to deny her late appeal did not prejudice that interest.
Gilbert alleges that this conclusion was erroneous because a videotape taken by an Animal Control Officer Randy Smith showed that Ki was under voice command. However, Gilbert did not place this videotape into evidence before the hearing officer or provide this court with a copy. Moreover, Gilbert does not contend that the videotape shows that her car windows were open at the relevant times.
Gilbert is entitled under Anchorage municipal law to use voice control to control her dog in certain designated areas. AMC 17.10.010(A)(1) allows
[c]ontrol of an animal by command . . . if the animal is engaged in an activity that precludes it from accomplishing that activity if restrained, and the animal is in an area normally associated with that activity, and the activity is conducted in a manner that minimizes impact with the general public.
14. Absent her interest in using voice control due to her disability, Gilbert's only interest in her appeal is her financial interest in not paying the fine imposed by Animal Control. In Anderson v. State, Commercial Fisheries Entry Commission, we held that "severe" financial consequences may constitute an important interest that partially justifies a relaxation of Appellate Rule 602(a)(2). Unlike the appellant in Anderson, Gilbert did not face "severe" consequences: The administrative order that she attempted to appeal imposed only $125.00 in total fines.
654 P.2d 1320, 1322 (Alaska 1982) (finding abuse of discretion when untimeliness was caused by reasonable good faith belief in availability of administrative measures, minimal lateness, and dismissal would prevent gill-netter from obtaining limited entry permit).
15. Second, Gilbert's appeal was extremely late and her explanation unsatisfactory. Her September 15, 2003 motion to accept late appeal was filed more than ten months after Animal Control distributed the November 18, 2002 order and more than nine months after the thirty-day period prescribed by Appellate Rule 602(a)(2) had run. Even if Gilbert was entitled to credit for attempting to file her appeal in a timely fashion, she did not try to correct her mistakes for more than two months. And after her second attempt to file was rejected for several deficiencies, she failed to even attempt to address the deficiencies for five and one-half months.
16. Gilbert did not provide any good reason for these delays. Her only justification for the five and one-half month delay was that the packet containing her rejected March 26, 2003 filings was "dropped behind some furniture with some other mail and was only recently discovered." We are aware that Gilbert suffers from debilitating health problems and is representing herself in a variety of legal matters. We have little doubt that Gilbert's ability to work on her appeal was limited by these health problems as well as the strain of her case load of pro se cases. These concerns may, at times, constitute satisfactory reasons for delay. However, a litigant must bring particular difficulties to the court's attention so that the court can work with her. And when a lower court exercises its discretion to deny a motion to relax a filing deadline, the movant's generalized assertion of hardship — made long after her deadline grew stale and cold — does not weigh against that court's decision.
The hearing officer found that Gilbert suffers from obesity, arthritis, congestive heart disease, congenital knee and foot problems, as well as neck and back injuries from a car accident, and serious shoulder problems. She has limited mobility. Gilbert's case load during 2003 included: Gilbert v. Sperbeck, 3AN-01-07077, No. S-10842 10842 (under consideration); Gilbert v. State Farm Ins. Co., 2004 WL 1701109 (Alaska 2004) (unpublished); and Gilbert v. Nina Plaza Condo Ass'n, 64 P.3d 126 (Alaska 2003) (published decision reversing superior court decision to dismiss one suit for failure to comply with pretrial order, reversing superior court decision to dismiss second suit for failure to complete service of process, and remanding for further proceedings).
Gilbert provided far too little detail for us to conclude that the superior court erred. She did not explain what furniture the packet was lodged behind, who dropped it there, or when it was discovered. Moreover, litigants, even pro se litigants, have an obligation to oversee their cases. Even if the packet fell behind the furniture without ever crossing Gilbert's gaze, Gilbert should have been aware that her appeal had not been filed and attempted to uncover what had transpired.
17. Third, Gilbert has not alleged any reasons for concluding that the underlying administrative process was unfair; she only disputes the outcome. Our review of the record provides no reason to think that the hearing was conducted unfairly.
18. The last consideration — Animal Control's interests in the finality of the adjudication — does not weigh strongly in its favor. One of Animal Control's primary purposes is the enforcement of animal control laws and we cannot say that its interest in resolving disputes over its enforcement efforts is insignificant. Nonetheless, the only specific prejudice that would have accrued to Animal Control from the relaxation of this filing deadline was further delay in the collection of Gilbert's fine.
By contrast, in Jerrel the appellee interest in achieving finality was of "considerable importance." 567 P.2d at 767. In Jerrel, the appellant was a public school teacher contesting her termination by the local school board. Id. at 762. We noted that prompt resolution of her case was important to the school board because of the need to determine personnel matters for the upcoming school year. Id. at 767.
19. In her reply brief Gilbert argues that Sheehan v. University of Alaska supports her position. The situation in Sheehan, however, is clearly distinguishable from the current circumstances. Most importantly, Sheehan's opponents consented to the extension of time while Gilbert's did not consent to a late appeal. Moreover, Sheehan was at most two weeks beyond the applicable deadline (though she had already been granted two extensions of time), whereas Gilbert's appeal was filed over nine months late. Further, Sheehan had a reasonable excuse for the delay — apparent abandonment of her case by her attorney — while Gilbert's excuse is unreasonable. Finally, Sheehan was arguably not at fault for the delay but Gilbert's predicament is apparently of her own making.
700 P.2d 1295 (Alaska 1985).
20. After reviewing these considerations, we are not left with the firm conviction that the superior court erred by denying Gilbert's motion to accept her late appeal. Our decision is based primarily on the fact that Gilbert's appeal does not seek to defend any interests sufficiently important to justify ignoring the rule, the length of her delay, and the absence of any satisfactory explanation for that delay. Given these facts, we think it was well within the superior court's discretion to deny Gilbert's motion.
Gilbert has waived any argument regarding the superior court's decision to reject her motions to waive or reduce the cost bond and filing fees.
21. On June 13, 2003 Gilbert received another ticket from Animal Control. According to AMC 17.05.100(A), in order to contest a ticket at a hearing, a person must file a written demand for a hearing within fifteen business days of receiving the notice of violation. Gilbert filed a request for a hearing on July 18, 2003, asking for a hearing regarding the June 13, 2003 ticket (she also requested a hearing regarding her March 2002 tickets). Animal Control rejected this request because it was not made within fifteen business days as required by AMC 17.05.100(A).
22. After Animal Control rejected a motion for reconsideration, Gilbert filed an appeal with the superior court on September 15, 2003. She also moved for a waiver or reduction of the cost bond and filing fees. Judge Hensley denied these motions without comment on December 23, 2003. Although Judge Hensley did not issue an order dismissing Gilbert's appeal, that appears to have been the effect of his order.
According to Animal Control, Gilbert subsequently failed to pay any filing fees or post a cost bond and her appeal was dismissed.
23. Gilbert addressed the correctness of this decision in her points on appeal, stating that she was "on Social Security Disability and Medicaid, eligible for waiver of filing fees and cost bond, and cannot afford these fees." She did not, however, brief this issue. Thus she has waived any argument that the superior court's decision was erroneous.
The terms "cost bond" and "filing fee" do not appear in her brief. Nor does she ever mention Alaska Appellate Rules 602(e) (cost bonds), 204(c) (bonds on appeal), or 209 (appeals at public expense). Gilbert also does not make any general argument that the superior court erred in dismissing her appeal of the June 13, 2003 ticket because she was unable to pay.
We consider issues that are inadequately briefed to have been waived. See, e.g., Great Divide Ins. Co. v. Carpenter ex rel. Reed, 79 P.3d 599, 608 n. 10 (Alaska 2003). While we judge the performance of a pro se litigant by a less demanding standard than an attorney, "even when a pro se litigant is involved, an argument is considered waived when the party `cites no authority and fails to provide a legal theory' for his or her argument." Peterson v. Ek, 93 P.3d 458, 464 n. 9 (Alaska 2004). A pro se litigant's inclusion of an argument in her points on appeal does not preserve the contention in the absence of meaningful briefing. See Elsberry v. Elsberry, 967 P.2d 1004, 1007 (Alaska 1998); Zok v. State, 903 P.2d 574, 576 n. 2 (Alaska 1995).
We note that Judge Hensley almost certainly did not deny these motions because Gilbert failed to properly affirm the financial statement she submitted with her motions — as alleged by Animal Control. The record on appeal contains a fully executed financial statement that appears to have been submitted with Gilbert's motions and points on appeal on September 15, 2003. Gilbert appears to have completed and signed this financial statement on September 4, 2003, although the statement was not certified until September 15, 2003 when she submitted her paperwork in person. It may be that Gilbert provided Animal Control with an uncertified copy of her financial statement and that this prior version gave rise to Animal Control's erroneous argument. Notwithstanding the reasons for Animal Control's error, it seems highly unlikely that Judge Hensley would ignore the contents of the record when ruling on such simple motions. In the absence of any argumentation in this regard, we are unwilling to impute such an error to the superior court.
Conclusion
24. The superior court did not abuse its discretion in denying Gilbert's motion to accept her late-filed appeal of the November 18, 2002 order. Additionally, by failing to brief any issues arising from the superior court's refusal to waive or reduce her cost bond and filing fees, Gilbert has waived any arguments regarding these motions. We therefore AFFIRM the superior court's decisions.