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Gilbert v. Municipality of Anchorage11/23/2005
r. "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."
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."
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.
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 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.
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.
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
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