City and Borough of Juneau v. Thibodeau

• Decision Date: 11 May 1979
• Docket Number: No. 3636,3636
• Citation: 595 P.2d 626
• Parties: CITY AND BOROUGH OF JUNEAU, Appellant, v. Robert THIBODEAU, d/b/a Shoprite Market, Appellee.
• Court: Alaska Supreme Court

Page 626

595 P.2d 626

CITY AND BOROUGH OF JUNEAU, Appellant, v. Robert THIBODEAU, d/b/a Shoprite Market, Appellee.

No. 3636.

Supreme Court of Alaska.

May 11, 1979.

Gerald L. Sharp, City and Borough Atty., Juneau, for appellant.

James F. Petersen, Juneau, for appellee.

OPINION

Before BOOCHEVER, C. J., RABINOWITZ, CONNOR and BURKE, JJ., and SCHULZ, Superior Court Judge.

RABINOWITZ, Justice.

This appeal arises from a Memorandum of Decision and Order of the superior court reversing the decision of the Assembly of the City and Borough of Juneau denying Thibodeau a variance to the local zoning ordinance requirement for off-street parking spaces. The variance previously had been granted by the municipality's planning commission sitting as a board of adjustment ¹ and had been appealed to the assembly by objecting neighboring landowners. The superior court remanded the case to the board of adjustment with instructions for the board to make express findings of fact based on a hearing record showing evidence in support of its findings.

Robert Thibodeau is the original owner of the Shoprite Market, a general store located within the Douglas community in the City and Borough of Juneau, Alaska. The store was built by Thibodeau in 1962 and it and the adjoining parking lot occupy approximately one-half city block in area. Prior to 1975, the zoning of the property was split, the store proper being located in the C2 (commercial) Douglas district while the adjacent parking lot was located in the RML (multiple family) zoned area. Pursuant to Thibodeau's plans for expansion of the market, he applied to the city and borough planning commission in the spring of 1975 for rezoning of the parking lot for commercial uses. The rezoning was accomplished in May and June of 1975, and Thibodeau subsequently applied to the planning commission, sitting as a board of adjustment, for a variance reducing the required number of off-street parking spaces so that he could carry out his plans to enlarge the store building into the parking area. The variance was granted by the board and the number of off-street parking spaces required was reduced from thirty to sixteen. Adjacent property owners appealed the grant of the variance to the city and borough assembly. After a hearing before the members of the assembly, the assembly reversed the decision of the board of adjustment which had granted the variance. Thibodeau then appealed to the superior court.

Initially, we note that Thibodeau has challenged this court's jurisdiction to decide the appeal. Thibodeau urges that the judgment of the superior court was not a "final judgment" within the meaning of Alaska Appellate Rule 5 ² from which an appeal may be taken because the superior court's remand was based on the inadequacy of the hearing record and findings of the board of adjustment and because "Mr. Thibodeau was neither granted nor denied his variance."

The question of the finality of a judgment for purposes of conferring appellate jurisdiction on this court has been addressed previously on numerous occasions. ³ The test which was adopted in Greater Anchorage Area Borough v. City of Anchorage, 504 P.2d 1027 (Alaska 1972), for determining finality is essentially a practical one. In GAAB we stated:

The basic thrust of the finality requirement is that the judgment must be one which disposes of the entire case, '. . . one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.' ⁴

We further held that "the reviewing court should look to the substance and effect, rather than form, of the rendering court's judgment, and focus primarily on the operational or 'decretal' language therein." ⁵

In ordinary civil litigation, this practical definition of finality adequately distinguishes the cases which should be heard on appeal to this court from those cases which should not be considered because they have not been disposed of completely on the merits in the superior court. However, in specifically reviewing cases involving both civil and criminal matters in which the superior court's disposition of the issues before it was undertaken as an intermediate appellate court sitting in review of either the judgment of a district court or the decision of an administrative agency, we are cognizant that application of the GAAB test for finality has generated uneven results in our prior opinions. Our experience with cases involving decisions of the superior court sitting as an appellate court in a variety of factual circumstances has convinced us of the need to clarify further the rules of appellate review with respect to these kinds of cases. Since the present case presents exactly the sort of finality question which has caused difficulties in the past, we have undertaken here to explain finality as it applies to review of intermediate appellate decisions of the superior court.

We think the better rule is that a decision of a superior court, acting as an intermediate appellate court, which reverses the judgment of the court below or the decision of an administrative agency and remands for further proceedings, is a non-final order of the superior court. Our decision on this point requires us to overrule portions of our opinion in Greater Anchorage Area Borough v. City of Anchorage, 504 P.2d 1027 (Alaska 1972); ⁶ nevertheless, we believe this step to be necessary in this case.

GAAB involved a controversy between the City of Anchorage and the Greater Anchorage Area Borough regarding the denial of a permit from the Alaska Public Utilities Commission to install certain utility poles and powerlines. The city had appealed to the superior court from the decision of the Public Utilities Commission. Part of the original conflict was resolved by stipulation of the parties, and the superior court referred the remaining matter before it to the Public Utilities Commission for resolution. The borough then appealed to this court. After stating the practical test for finality of judgments which is quoted immediately above, we held that appellate jurisdiction existed in this court to review the decision of the superior court. We based this holding on our conclusion "that the superior court meant to completely dispose of the sole remaining issue pending before it, and that it did not intend to retain jurisdiction." ⁷

We are now of the view that an order of the superior court issued in its appellate capacity which remands for further proceedings is not a final judgment for purposes of Alaska Appellate Rule 5. However, a party to such a remand may properly invoke our discretionary review jurisdiction where the requirements of Appellate Rules 23 and 24(a) are met. ⁸ We think this approach is more consistent with the stand we have taken regarding the question of finality in criminal cases and that it represents the soundest approach to the exercise of final appellate jurisdiction by this court. ⁹

State v. Browder, 486 P.2d 925 (Alaska 1971), thoroughly considered the reasons for discretionary review by this court of decisions by the superior court which are not otherwise appealable under Appellate Rule 5. In Browder, this court entertained a petition for review brought by the state from a judgment of the superior court reversing a criminal contempt conviction by the district court and remanding the matter for trial by jury in the district court. We held that even though appeal as a matter of right pursuant to Appellate Rule 5 was foreclosed because AS 22.05.010 ¹⁰ and Rule 5 prohibited the state from appealing a criminal case except "to test the sufficiency of the indictment or on the ground that the sentence is too lenient," ¹¹ this court could consider the superior court's decision on petition for review by the state. In Browder we stated that:

We think it significant that the legislature in prescribing this court's jurisdiction specifically provided that 'The supreme court may issue injunctions, writs of review, mandamus, certiorari, prohibition, habeas corpus, and all other writs necessary or proper to the complete exercise of its jurisdiction.' In our view this provision is a clear manifestation of the legislature's intent that the supreme court would be able to exercise its final appellate jurisdiction other than by appeal. ¹²

The exercise of discretionary review in Browder satisfied the constitutional requirement that final appellate jurisdiction be vested in the supreme court under article IV, section 2 of the Alaska Constitution. ¹³ As we discussed in Browder :

Unless the supreme court can fully implement its final appellate jurisdiction through use of its review jurisdiction, it will be extremely difficult, if not impossible, for this court to exercise proper control over the administration of criminal justice, and the development of rules of law in criminal trials. One can envision that erroneous rulings involving important questions of constitutional law will be made during a trial, or at the superior court appellate level, in favor of the accused. How are such mistakes to be corrected? Neither AS 22.05.010 nor Alaska's constitutional prohibition against double jeopardy requires that an erroneous non-final order or decision, favorable to the accused, must stand uncorrected. ¹⁴

In a similar manner, the exercise of discretionary review in civil cases such as the one presently before us will insure that this court has the opportunity to exercise final review of questions decided by the superior court in remanding a case whenever it is necessary to provide immediate guidance on a particular matter. To preserve this constitutionally imposed review function, a party need not have a further absolute right to review prior to final disposition of the litigation after remand by the superior court. Following final judgment in the trial courts, a party always may appeal to the supreme court as a matter of right. ¹⁵

Our decision that the superior court order before us in...