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State v. Williams (8/28/2015) ap-2472

State v. Williams (8/28/2015) ap-2472

                                                                                       NOTICE
  

               The text           of   this opinion can be corrected before the opinion is published in the                                      

               Pacific Reporter                 .   Readers are encouraged to bring typographical or other formal                                        

               errors to the attention of the Clerk of the Appellate Courts:    



                                                         303 K Street, Anchorage, Alaska  99501  

                                                                           Fax:  (907) 264-0878  

                                                              E-mail:  corrections@ akcourts.us  



                                IN THE COURT OF APPEALS OF THE STATE OF ALASKA                                                               



STATE  OF  ALASKA,  

                                                                                                                                                               

                                                                                                                 Court of Appeals No. A-11121  

                                                                                                                                                                               

                                                           Appellant,                                         Trial Court No. 3AN-11-5513 CR  



                                             v.  

                                                                                                                                O   P   I   N   I   O   N  

LARRIES  LEE  WILLIAMS,  



                                                           Appellee.                                              No.  2472  -  August  28,  2015  



                              A                                                                                                                 

                                 ppeal   from   the   Superior   Court,  Third  Judicial   District,  

                                                                                                        

                              Anchorage, Michael L. Wolverton, Judge.  



                                                                                                                                                 

                              Appearances:  Timothy W. Terrell, Assistant Attorney General,  

                                                                                                                                                            

                              Office  of  Special  Prosecutions  and Appeals,  Anchorage,  and  

                                                                                                                                                           

                              Michael   C.   Geraghty,   Attorney   General,   Juneau,   for   the  

                                                                                                                                                            

                              Appellant.   Renee  McFarland, Assistant Public Defender, and  

                                                                                                                                                                     

                              Quinlan Steiner, Public Defender, Anchorage, for the Appellee.  



                                                                                                                                                   

                              Before:  Mannheimer, Chief  Judge, Allard, Judge, and Hanley,  

                                                                          *  

                                                                              

                              District Court Judge. 



                                            

                              Judge MANNHEIMER.  



                              For centuries, Anglo-American law has recognized the power of the courts                                                                              



to    hold    litigants    in    contempt    for    disruption    of    judicial    proceedings    and    willful  



        *  

               Sitting   by   assignment    made   pursuant   to   Article   IV,   Section   16   of   the   Alaska  

Constitution and Administrative Rule 24(d).                                     


----------------------- Page 2-----------------------

 disobedience of judicial orders.                                                                                                                                             The question presented in this appeal is: When someone                                                                                                                                                                                                                     



violates (or allegedly violates) a court order, who decides whether the situation merits                                                                                                                                                                                                                                                                                                                                                                               



 a contempt proceeding?                                                                                                                   



                                                                             Traditionally, the law has entrusted this decision to the court whose order                                                                                                                                                                                                                                                                                                                     



was disobeyed.                                                                          But the State argues that the executive branch now has the authority to                                                                                                                                                                                                                                                                                                                                 



pursue contempt proceedings against people and organizations who violate court orders,                                                                                                                                                                                                                                                                                                                                                                              



 and the authority to require the court to adjudicate the contempt charge, regardless of                                                                                                                                                                                                                                                                                                                                                                                                     



how the court views the matter.                                                                                                                                                        



                                                                            For the reasons explained in this opinion, we conclude that the State's view                                                                                                                                                                                                                                                                                                                        



 of the law is incorrect.                                                                                                        Alaska law does, indeed, give executive branch prosecutors the                                                                                                                                                                                                                                                                                          



 authority to                                                      initiate  contempt charges.                                                                                                                                But the judicial branch retains the authority to                                                                                                                                                                                                                 



 decide whether a particular contempt charge should go forward to adjudication.                                                                                                                                                                                                                                                                                                                                                                                                The  



 executive branch can not force the court to entertain a contempt proceeding after the                                                                                                                                                                                                                                                                                                                                                                                                  



 court has affirmatively decided that a contempt prosecution is unwarranted.                                                                                                                                                                                                                                                                                                                                                                    



  



                                        Underlying facts   



                                                                             The defendant in this case, Larries Lee Williams, was subpoenaed to appear                                                                                                                                                                                                                                                                                                               



 and testify before an Anchorage grand jury in connection with a homicide.                                                                                                                                                                                                                                                                                                                                                                           Williams  



 failed to appear, so the State obtained a warrant for his arrest.                                                                                                                                                                                                                                                                                                            About a month later,                                                                           



Williams was arrested on this warrant.                                                                                                                                                                                      



                                                                             In   the   meantime,   the   grand   jury   hearing   to   which   Williams   had   been  



 subpoenaed went forward - without Williams's testimony - and the State obtained the                                                                                                                                                                                                                                                                                                                                                                                                      



indictment it was seeking.                                                                                                                           



                                                                                                                                                                                                                                          -  2 -                                                                                                                                                                                                                                   2472
  


----------------------- Page 3-----------------------

                                                                                    Following Williams's arrest, he was brought before the superior court.                                                                                                                                                                                                                                                                                                                                                                                  At  



that time,                                                     the State filed a criminal information against Williams,                                                                                                                                                                                                                                                                                                             charging   him with   



contempt of court under AS 09.50.010(10) for failing to honor the grand jury subpoena.                                                                                                                                                                                                                                                                                                                                                                                                                                                                            



                                                                                    Williams moved to dismiss the contempt charge, arguing that the State had                                                                                                                                                                                                                                                                                                                                                                           



not   been prejudiced by his failure to appear (since the State obtained its indictment                                                                                                                                                                                                                                                                                                                                                                                                    



anyway).   The State opposed the dismissal, arguing that the current version of Alaska's                                                                                                                                                                                                                                                                                                                                                                                                                 



contempt   statute   (enacted   in   2006)   no   longer   required   proof   that   the   defendant's  



disobedience to a court order had actually prejudiced the complaining party.                                                                                                                                                                                                                                                                                                                                                                                                                                     In the   



alternative, the State argued that Williams's failure to appear at grand jury had, in and                                                                                                                                                                                                                                                                                                                                                                                                                                             



of itself, prejudiced the State's interests.                                                                                                                                                                                                                   



                                                                                     The   superior court granted Williams's motion to dismiss the contempt                                                                                                                                                                                                                                                                                                                                   



charge,   but not on the ground that Williams proposed.                                                                                                                                                                                                                                                                                                                    Instead,   the superior court                                                                                                                  



declared that the 2006 version of the contempt statute was void for vagueness, in that it                                                                                                                                                                                                                                                                                                                                                                                                                                                             



 failed to provide intelligible standards for differentiating the conduct that would support                                                                                                                                                                                                                                                                                                                                                                                                                    



a charge of criminal contempt versus a charge of civil contempt. In addition, the superior                                                                                                                                                                                                                                                                                                                                                                                                                  



court found that Williams had been the victim of selective prosecution -                                                                                                                                                                                                                                                                                                                                                                                                        i.e., that the                                            



 State had acted arbitrarily in charging Williams with criminal contempt (and not charging                                                                                                                                                                                                                                                                                                                                                                                                                



any other prospective witnesses who failed to honor their subpoenas).                                                                                                                                                                                                                                                                                                                                                                                    



                                                                                    For   these   reasons,   the   superior   court   dismissed   the   criminal contempt   



charge against Williams.                                                                                                                                 The State now appeals.                                                                                                                                      



                                                                                    We affirm the dismissal of Williams's contempt charge - but not for the                                                                                                                                                                                                                                                                                                                                                                                 



reasons given by the superior court.                                                                                                                                                                                           As we explain in this opinion, even though Alaska's                                                                                                                                                                                                                      



contempt statutes, AS 09.50.010 and AS 09.50.020, may give the executive branch the                                                                                                                                                                                                                                                                                                                                                                                                                                                        



authority to initiate a contempt charge based on a person's failure to comply with a court                                                                                                                                                                                                                                                                                                                                                                                                                             



order, the ultimate authority to decide whether that charge should go forward to trial and                                                                                                                                                                                                                                                                                                                                                                                                                                              



                                                                                                                                                                                                                                                                  -  3 -                                                                                                                                                                                                                                                            2472
  


----------------------- Page 4-----------------------

judgement rests with the judiciary - more specifically, with the court whose order has                                                                                                                                                                   



 been violated.                              



                                         In Williams's case, the superior court did not dismiss the contempt charge                                                                                                                             



 under this rationale.                                       However, after allowing the State to explain why Williams should                                                                                                                  



 be   punished   for   criminal   contempt,   the   court   clearly   concluded   that   a   criminal  



 prosecution was not warranted.                                                                This being so, the court had the authority to dismiss the                                                                                                  



 charge regardless of the district attorney's wishes.                                                                                                  



                     The concept of contempt, and the distinction between criminal and civil                                                                                                                                     

                     contempt  



                                         As our supreme court explained in                                                                   State v. Browder                                   , 486 P.2d 925 (Alaska                       



 1971), and again in                                        Johansen v. State                                      , 491 P.2d 759 (Alaska 1971), the law has long                                                                                     



 recognized the courts' authority to prosecute and punish people for disrupting judicial                                                                                                                                                     



                                                                                                                                                          1  

 proceedings and for willfully violating court orders.                                                                                                         



                                         In the nineteenth century,  both English and American courts adopted a  

                                                                                                                                                                                                                                                               



 distinction between "criminal" contempt and "civil" contempt in cases where a person  

                                                                                                                                                                                                                                             

                                                                    2     This distinction does not rest on the defendant's conduct, but  

 violates a court order.  

                                                                                                                                                                                                                                                         



 rather on the consequence that the court believes is appropriate for the defendant's act  

                                                                                                                                                                                                                                                          



 of disobedience.  

                                                   



                                         As  the  supreme  court  explained  in  Johansen,  491  P.2d  at  763-64,  a  

                                                                                                                                                                                                                                                               



 prosecution for contempt is classified as a "criminal" contempt if the punishment to be  

                                                                                                                                                                                                                                                            



 inflicted  is  a  fixed  term  of  imprisonment,  a  fixed  fine,  or  some  other  one-time  

                                                                                                                                                                                                                                       



           1  

                    Browder , 486 P.2d at 933-34;                                                          Johansen , 491 P.2d at 763.                                                      



           2  

                                                                                                     

                    Johansen , 491 P.2d at 763.  



                                                                                                                                      

                                                                                                                           - 4 -                                                                                                                      2472
  


----------------------- Page 5-----------------------

punishment intended to vindicate the authority of the court by imposing consequences                                                                                                                                                       



for a past act of disobedience.                                                                     



                                            In   contrast,   a   prosecution   for   contempt   is   classified   as   "civil"   if   the  



punishment (1) is primarily designed to benefit a litigant who is harmed or disadvantaged                                                                                                                                                  



by   the   defendant's   continuing refusal or                                                                                              neglect   to   obey   a   court   order,   and   if   the  



punishment (2) "is conditional upon the defendant's continued refusal to comply with                                                                                                                                                                                      



the court's order."                                              Id.   at 764.                            That is,                       a prosecution for contempt is "civil" if the                                                                                        



punishment   is   designed   to   coerce   an   obstinate   or   neglectful   party   to   honor   their  



obligations under the court's order, and if the punishment ceases once that party has                                                                                                                                                                                        



complied with their obligations.                                                                        



                                            (A classic example of a "civil" punishment for contempt is the imprison-                                                                                                                                      



ment of a recalcitrant witness until the witness agrees to testify, or the imposition of a                                                                                                                                                                                          



daily fine on an organization, or its leaders, until they comply with an injunction.)                                                                                                                                                                                    



                                            Because the same act of disobedience to a court order can give rise to a                                                                                                                                                                



prosecution for criminal contempt or a prosecution for civil contempt (or conceivably                                                                                                                                                            

                3), it is often not particularly helpful to refer to an act of disobedience as a "criminal  

both                                                                                                                                                                                                                                                    



contempt" or a "civil contempt".  These phrases do not describe the act of disobedience.  

                                                                                                                                                                                                                                                                                            



Rather, they describe the type of prosecution and punishment that the defendant will face  

                                                                                                                                                                                                                                                                           



for the act of disobedience.  

                                                                                           



                                           We note that, in the current version of AS 09.50.020(a) (as amended in  

                                                                                                                                                                                                                                                                                  



2006),  the  term  "civil contempt"  is  used  in  a  way  that  does  not  conform  to  this  

                                                                                                                                                                                                                                                                           



established law.  The statute appears to envision a one-time, fixed monetary penalty for  

                                                                                                                                                                                                                                                                               



each  instance  of  "civil contempt".                                                                                       But  as  we  have  just  explained,  the  three  legal  

                                                                                                                                                                                                                                                                        



premises of civil contempt proceedings are:  (1) that there is an ongoing violation of a  

                                                                                                                                                                                                                                                                                    



           3  

                      See United States v. United Mine Workers of America                                                                                                                   , 330 U.S.                    258,67                  S.Ct.677,91                    

L.Ed.2d 884 (1947).                                              



                                                                                                                                     -  5 -                                                                                                                               2472
  


----------------------- Page 6-----------------------

court order, (2) that the contemnor's punishment is open-ended (for as long as the willful                                                                                                                                    



disobedience continues), and (3) that the contemnor's punishment will cease as soon as                                                                                                                                                   



the contemnor complies with the court order.                                                                                   



                                     In addition, AS 09.50.020 only mentions a monetary penalty for acts of                                                                                                                             



civil contempt.                               By   apparently   eliminating imprisonment                                                                             as   a   punishment   for   civil  



contempt, the statute again deviates from established law.                                                                                                        As we have already noted,                                  



imprisonment   is   a   traditional   method   used   in   civil   contempt   proceedings   when   a  



recalcitrant witness refuses a judge's direct order to testify.                                                                                                     



                                     As we explain later in this opinion, the Alaska Supreme Court has already                                                                                                             



held   that   the   penalty   provisions   of   AS   09.50.020   are   not   binding on                                                                                                                    the   superior  

                 4       We therefore do not need to resolve the  apparent inconsistencies between  

court.                                                                                                                                                                                                                 



AS 09.50.020 and the established law of civil contempt.  

                                                                                                                                                           



                   Who may initiate contempt proceedings  

                                                                                                



                                     We now address the question of who is authorized to initiate a prosecution  

                                                                                                                                                                                                              



for contempt.  

                                         



                                     Because  "[t]he  contempt  power  has  been  consistently  recognized  by  

                                                                                                                                                                                                                                      

                                                                                                                                                                        5  courts have traditionally  

American courts to be  an  inherent power of the judiciary",  

                                                                                                                                                                                                              



been empowered to initiate contempt proceedings when the court learns that a person has  

                                                                                                                                                                                                                                     



(or may have) willfully violated a court order.  

                                                                                                                                



         4  

                   Continental Insurance Companies v. Bayless & Roberts, Inc.                                                                                                      , 548 P.2d 398, 410-11                   

(Alaska 1976).                            



         5  

                                                                                                                                                                                                                            

                   Continental Insurance Companies v. Bayless & Roberts, Inc., 548 P.2d 398, 408-09  

                                         

(Alaska 1976).  



                                                                                                                            

                                                                                                                 - 6 -                                                                                                            2472
  


----------------------- Page 7-----------------------

                         (Indeed,   at   common   law,   courts   were   not   only   empowered   to   initiate  



contempt proceedings,                         but also to prosecute and adjudicate allegations of contempt                                       



"without the intervention of any other agency".                                            State v. Browder                , 486 P.2d at 933-34,         



                                                                                                                     6 

quoting the United States Supreme Court in                                         Bloom v. Illinois                .         

                                                                                                                       )  



                                                                                                                                                             

                         Now, under Alaska Civil Rule 90(b), any party to a judicial proceeding can  



                                                                                                                                                     

ask the court to initiate contempt proceedings against a person who has willfully violated  



                                                                                                                                                      

(or is willfully violating) a court order.                                    The aggrieved party can  make  this request  

                                                                                                                                                   7  but the  

                                                                                                                                                             

ex parte (that  is, without notice to the person who is accused of contempt),  



request must be supported by affidavits or sworn testimony.  

                                                                                                                    



                         If the court concludes that a "proper showing" has been made (a phrase that  

                                                                                                                                                             



is not defined in Civil Rule 90), then Rule 90(b) provides that the court can order the  

                                                                                                                                                             



alleged  contemnor  to  show  cause  why  they  should  not  be  punished  for  the  act  of  

                                                                                                                                                               



contempt, or, if the situation warrants it, the court can issue a bench warrant for  the  

                                                                                                                                                             



alleged contemnor's arrest.  

                                                     



                         The Alaska Supreme Court has also held that, because willful disobedience  

                                                                                                                                            



of a court order is a violation of the law, see AS 09.50.010(5), the State is empowered  

                                                                                                                                             



to initiate proceedings for criminal contempt for any "past willful flouting of the court's  

                                                                                                                                                      



authority", even when the State is not a party to the litigation.  Johansen, 491 P.2d at 766  

                                                                                                                                                             



n. 27; see also Public Defender Agency v. Superior Court, 534 P.2d 947, 949 (Alaska  

                                                                                                                                                     



 1975); Carter v. Broderick, 750 P.2d 843, 845 (Alaska App. 1988) (declaring that willful  

                                                                                                                                                        



disobedience of a court order is "a public wrong").  

                                                                               



      6  

             391 U.S. 194, 196; 88 S.Ct. 1477, 1479; 20 L.Ed.2d 522 (1968).                                                       



      7  

             See Taylor v. State ,  977  P.2d 123, 124 n. 1 (Alaska App. 1999) (explaining the  

                                                                                                                                                              

technical meaning of "ex parte").  

                                                             



                                                                             - 7 -                                                                        2472
  

                                                                                     


----------------------- Page 8-----------------------

                      Who   decides   whether   an   allegation   of   criminal   contempt   should   go  

                   forward to adjudication and sentencing                                                    



                                         We now reach the crux of                                                            the   current appeal:                                        Who decides whether a                                                  



 contempt charge goes forward to prosecution and adjudication?                                                                                                                                   



                                         The present case involves a proposed criminal prosecution for "indirect"                                                                                                                       



 contempt.   Williams's alleged act of disobedience was a willful failure to honor a grand                                                                                                                                                        



jury subpoena.                                  Although it may have been obvious that Williams failed to attend the                                                                                                                                       



 grand jury hearing, his failure to attend would not be an act of contempt unless it was                                                                                                                                                                 



 willful.    And the question of willfulness would inevitably hinge on information                                                                                                                                                                       not  



 known   to   the   court   -   information   that   would   have   to   be   established   through   the  



 presentation of evidence.                                                     

                                                                                                                                                                                                             8      In these circum- 

                                         Thus, the contempt (if any) was an indirect contempt.                                                                                                                                                



                                                                                                                                                                                                                                                 9  

 stances, both federal law and Alaska law guarantee a jury trial to the defendant.  

                                                                                                                                                                                                                                                      



                                         Because our form of government involves three independent  branches  

                                                                                                                                                                                                                                       



 (executive,  legislative,  and  judicial),  this  requirement  of  a  trial raises  separation-of- 

                                                                                                                                                                                                                          



 powers questions.  

                                                         



                                         What happens if a court wishes to pursue a contempt prosecution, but the  

                                                                                                                                                                                                                                                            



 executive branch does not wish to prosecute the case?  And what happens when, as in  

                                                                                                                                                                                                                                                               



 the instant case, the executive branch wants to pursue a contempt prosecution, but the  

                                                                                                                                                                                                                                                           



 court concludes that contempt proceedings are not warranted?  

                                                                                                                                                                                             



                                         In cases of criminalprosecution for indirect contempt, the courts retain their  

                                                                                                                                                                                                                                                        



 unilateral prosecutorial authority, independent of the executive branch.  As our supreme  

                                                                                                                                                                                                                                            



           8  

                     See United States v. Neal                                               , 101 F.3d 993, 998 (4th Cir. 1996) (holding that the failure                                                                                         

 of a witness to appear in response to a subpoena was an indirect contempt "since the court                                                                                                                                                           

 did not witness all of the essential elements of the misconduct").                                                                                                                        



           9  

                     Browder , 486 P.2d at 939; Bloom v. Illinois , 391 U.S. at 198, 88 S.Ct. at 1480.  

                                                                                                                                                                                                                                     



                                                                                                                            - 8 -                                                                                                                       2472
  

                                                                                                                                       


----------------------- Page 9-----------------------

court explained in                                                                 Browder, "[A] court has the authority to cite [a person] for criminal                                                                                                                                                                                                             



contempt (   i.e., to bind the alleged contemnor over for trial) on its authority alone."                                                                                                                                                                                                                                                                                                 Id.  



at 939.                           



                                                             However, a court has no power to force executive branch prosecutors to                                                                                                                                                                                                                                                              



assist   in   the   prosecution   of   a   contempt   charge.     The   decision   whether   to   actively  



participate   in   the   prosecution   of   any   given   case   is   discretionary   on   the   part   of   the  



executive branch. If government prosecutors decline to prosecute a contempt charge that                                                                                                                                                                                                                                                                                                   



a court wishes to                                                                  pursue, the court has no authority to order the executive branch to                                                                                                                                                                                                                                          



undertake the prosecution.                                                                                                  Public Defender Agency                                                                                                  , 534 P.2d at 950-51.                                                                              



                                                              On the other hand, the executive branch has no veto power over a court's                                                                                                                                                                                                                                 



authority to pursue contempt charges.                                                                                                                                       In instances where the executive branch declines                                                                                                                                          



to assist in the prosecution of a contempt charge, a court has the authority to appoint an                                                                                                                                                                                                                                                                                                     



independent prosecutor.                                                                                         



                                                             The United States Supreme Court addressed this issue in                                                                                                                                                                                                            Young v. United                             



States ex rel. Vuitton et Fils, S.A.                                                                                                                , 481 U.S. 787, 107 S.Ct. 2124, 95 L.Ed.2d 740 (1987).                                                                                                                                                                                                  



In  Young, the Supreme Court held that a federal court has the power to appoint a special                                                                                                                                                                                                                                                                              



prosecutor   to   pursue a charge of criminal contempt when the Department of Justice                                                                                                                                                                                                                                                                                      



declines to prosecute.                                                                                  Although the Supreme Court was declaring the power of the                                                                                                                                                                                                                          



federal courts, the Supreme Court's reasoning applies equally to the judicial power of                                                                                                                                                                                                                                                                                                          



 state courts:                                           



                                                               

                                                                                            The ability to punish disobedience to judicial orders is                                                                                                                                                                                   

                                                             regarded   as   essential to                                                                                        ensuring that                                                    the   Judiciary   has   a  

                                                             means   to   vindicate   its   own   authority   without   complete  

                                                              dependence on other Branches.                                                                                                                     ...   Courts cannot be at the                                                                                   

                                                             mercy                                 of                another                                     Branch                                      in               deciding                                       whether                                      such  

                                                             proceedings   should   be   initiated.     The   ability   to   appoint   a  

                                                             private attorney to prosecute a contempt action satisfies the                                                                                                                                                                                                     

                                                             need for an independent means of self-protection,                                                                                                                                                                                            without  



                                                                                                                                                                                            -  9 -                                                                                                                                                                                     2472
  


----------------------- Page 10-----------------------

                                                                               which courts would be "mere boards of arbitration whose                                                                                                                                                                                                                                                                

                                                                              judgments and decrees would be only advisory."                                                                                                                                                                                                                                                       [Quoting  

                                                                                Gompers v. Bucks Stove & Range Co.                                                                                                                                                                                                    , 221 U.S. 418, 450,                                                                         

                                                                               31 S.Ct. 492, 501, 55 L.Ed. 797 (1911)]                                                                                                                                                          

                                                                                 

 Young, 481 U.S. at 796, 107 S.Ct. at 2131-32.                                                                                                                                                                                                                                       



                                                                               And, indeed, state courts have reached the same conclusion under state law.                                                                                                                                                                                                                                                                                                                                                                     



See,  e.g.,  In re Thirty-Fifth Statewide Investigating Grand Jury                                                                                                                                                                                                                                                                                                                    , 112 A.3d 624, 630-31                                                                     



 (Pa. 2015);                                                       In re Mowery                                                                      , 169 P.3d 835, 842-46 (Wash. App. 2007);                                                                                                                                                                                                                    In re Dependency                



of A.K.                                    , 125 P.3d 220, 231 (Wash. App. 2005).                                                                                                                                                                 



                                                                               But though there are many appellate decisions                                                                                                                                                                                                                             holdingthat                                                          the judiciary has   



 an inherent, independent authority to pursue prosecutions for criminal contempt even                                                                                                                                                                                                                                                                                                                                                                                                         



when the executive branch declines                                                                                                                                                                                      to   participate,   it is far rarer to find an appellate                                                                                                                                                                                      



 decision dealing with the converse situation - instances where the executive branch                                                                                                                                                                                                                                                                                                                                                                                              



wishes to prosecute a person for criminal contempt,                                                                                                                                                                                                                                                                          but   the court whose order was                                                                                                                                      



violated does not believe that a criminal contempt prosecution is appropriate.                                                                                                                                                                                                                                                                                                                                                                                     



                                                                               In fact, we could find no such decision.                                                                                                                                                                                                There is, however, a decision by                                                                                                                                                     



the New Jersey Supreme Court -                                                                                                                                                                          Department of Health v. Roselle                                                                                                                                                               , 169 A.2d 153 (N.J.                                                                   



  1961) - that addresses a related issue:                                                                                                                                                                                                    whether a court is required to hold                                                                                                                                                                                      criminal  



 contempt proceedings whenever a private litigant proves, or offers to prove, that they                                                                                                                                                                                                                                                                                                                                                                                                          



have been prejudiced by someone's violation of a court order.                                                                                                                                                                                                                                                                                                                  



                                                                               The New Jersey court concluded that the court, and the court alone, must                                                                                                                                                                                                                                                                                                                                       



make the decision whether the violation merits a criminal contempt prosecution:                                                                                                                                                                                                                                                                                                                                                                                                            "[A]  



prosecution for contempt can be initiated only by the court itself. ...                                                                                                                                                                                                                                                                                                                                         The litigant's role                                                                  



is to acquaint the court [with the violation], rather than to level the charge."                                                                                                                                                                                                                                                                                                                                                               Roselle, 169   



A.2d at 159.                                                                



                                                                                                                                                                                                                                             -   10 -                                                                                                                                                                                                                                             2472
  


----------------------- Page 11-----------------------

                                                                       The New Jersey court explained that this rule arises from the principle of                                                                                                                                                                                                                                                                                                         



judicial autonomy,                                                                                  and also from the policy that prosecutions for criminal contempt                                                                                                                                                                                                                                            



  should be reserved for the most egregious or intractable violations of court orders:                                                                                                                                                                                                                                                                                                                                                        



                                                                         

                                                                                                          There are important reasons why the decision must be                                                                                                                                                                                                                     

                                                                                                                                                                                                                                                                                                                                                                                   

                                                                       the court's and only the court's.   The contempt process ...  

                                                                        should be used sparingly.                                                                                                            A litigant should not be permitted                                                                                              

                                                                       to invoke the criminal process as a thumbscrew to achieve a                                                                                                                                                                                                                                                       

                                                                                                                                                                                                                                                                                                                                                            

                                                                       private result.  A judge should be alert to this possible misuse  

                                                                        and should guard against it in deciding whether and when a                                                                                                                                                                                                                                                      

                                                                       criminal prosecution should be instituted.                                                                                                                                                                              



 Ibid.  



                                                                       The Alaska Supreme Court has never analyzed this issue so directly.                                                                                                                                                                                                                                                                                                    But  



 our supreme court has stated that the decision whether to pursue a criminal contempt                                                                                                                                                                                                                                                                                                                             



 prosecution against a particular litigant, and likewise the decision whether to continue                                                                                                                                                                                                                                                                                                                            



 to pursue an already initiated                                                                                                                      criminalcontempt proceeding, are committed to the court's                                                                                                                                                                                                                   



 discretion.   See Stuart v. Whaler's Cove, Inc.                                                                                                                                                                                                   , 144 P.3d 467, 469 (Alaska 2006), and                                                                                                                                                        



 J.M.R.  v. S.T.R.                                                                     , 15 P.3d 253, 258 (Alaska 2001).                                                                                                                                                   



                                                                       In its brief to this Court, the State argues that even though this rule may                                                                                                                                                                                                                                                                                           



 govern  private litigants'                                                                                                        requests for contempt prosecutions, the rule is different when                                                                                                                                                                                                                                       



 government   prosecutors   conclude   that   a   person   should   be   prosecuted   for   criminal  



  contempt.    



                                                                       The State points out that the Alaska Legislature has declared that willful                                                                                                                                                                                                                                                                                   



 disobedience of a court order is a public wrong;                                                                                                                                                                                                   see  AS 09.50.010(5).                                                                                             Based on this, the                                                            



  State   argues that it has the authority to prosecute any and all instances of criminal                                                                                                                                                                                                                                                                                                                                 



 contempt, regardless of whether the court approves - the same prosecutorial discretion                                                                                                                                                                                                                                                                                                                           



 that the State wields with respect to any other crime defined by Alaska law.                                                                                                                                                                                                                                                                                                       



                                                                                                                                                                                                                    -   11 -                                                                                                                                                                                                                  2472
  


----------------------- Page 12-----------------------

                                                  We   do   not    doubt   the   legislature's   authority   to   declare   that   willful  



disobedience of a court order is a public wrong - thus implicitly declaring that such                                                                                                                                                                                                                         



misconduct is a proper concern of the executive branch of government, even when the                                                                                                                                                                                                                                  



government is not itself a party to the litigation in which the contempt arises.                                                                                                                                                                                                             



                                                  But we do question the State's assertion that the legislature                                                                                                                                                                          may grant   



executive   branch   officials   the   power   to   force   courts   to   entertain   and   adjudicate  



prosecutions for criminal contempt, even when the court concludes that a prosecution is                                                                                                                                                                                                                                   



unwarranted.    



                                                  The legislature may lawfully enact statutes that                                                                                                                                      specify procedures for                                                      



contempt prosecutions, or that specify penalties for those found guilty of contempt.                                                                                                                                                                                                                            But  



the Alaska Supreme Court has squarely held that the contempt power remains inherent                                                                                                                                                                                                               



in the judicial branch, and that any such legislative enactments are not binding if they                                                                                                                                                                                                                       



impede the courts from the full and proper exercise of the contempt power.                                                                                                                                                                                                              This issue   



was presented in                                             Continental Insurance Companies v. Bayless & Roberts, Inc.                                                                                                                                                                     , 548 P.2d         



398, 410-11 (Alaska 1976).                                                                               



                                                  One of the questions raised in                                                                                        Continental Insurance                                                                   was whether the                                     



superior court could lawfully impose a penalty of $10,000 for a litigant's willful failure                                                                                                                                                                                                              



to obey a discovery order,                                                                             when   the   existing version of Alaska's contempt statute,                                                                                                                                  

                                                                                                                                                                                                          10        The supreme court explained  

AS 09.50.020, specified a maximum penalty of $300.                                                                                                                                                                                                                                           



that  the  true  underlying legal issue  was  whether,  or  to  what  extent,  the  legislature  

                                                                                                                                                                                                                                                                                       



possessed the authority to limit a court's contempt power, given that "[t]he contempt  

                                                                                                                                                                                                                                                                                            



power has been consistently recognized by American courts to be an inherent power of  

                                                                                                                                                                                                                                                                                                                        

the judiciary." 11  

                                                              



             10  

                         Continental Insurance                                                            , 548 P.2d at 408.                                              



             11  

                                                                           

                         Id. at 408-09.  



                                                                                                                                                                       

                                                                                                                                                     -  12 -                                                                                                                                                   2472
  


----------------------- Page 13-----------------------

                           In    answering    this    question,    the    supreme    court    acknowledged    the  



legislature's authority to enact statutes to govern contempt proceedings and to prescribe                                                                   



penalties for contempt.                           But   because the contempt power is inherent in the judicial                                                 



branch, the supreme court held that these statutes were                                                            ultimately not binding on the                       



courts if the effect of the statutory provisions was to "fetter the [contempt] power itself".                                                                                  



                                           12  

Id. , 548 P.2d at 410.                         



                             

                                         [Legislative]  enactments  endeavoring to  restrict  the  

                                                                                                                                           

                           court's contempt powers are entitled to respect as an opinion  

                                                                                                                                     

                           of a coordinate branch of the government[,] but [they] are not  

                                                                                                                                             

                           binding on the court.   An exception to this rule  pertains to  

                                                                                                                                               

                           courts created by legislative enactment.  There the legislature  

                                                                                                                               

                           does have the power to limit the court's exercise of contempt  

                                                                                                                                 

                           procedures.   [But in]  Alaska, ... the supreme and superior  

                                                                                                                                   

                           courts were created by the Alaska State Constitution and not  

                                                                                                                                             

                           by legislative enactment.  Thus, statutory enactments which  

                                                                                                                                       

                           endeavor  to  limit  the  necessary  contempt  powers  of  the  

                                                                                                                                            

                           Alaska superior and supreme courts are not binding.  

                                                                                                                                     



Id.  at 410-11.  

                              



                           The supreme court added that "statutory enactments [which] reasonably  

                                                                                                                                                        



regulate the contempt power ... should be given effect as a matter of comity", because  

                                                                                                                                                              



these enactments represent "the opinion of a coequal branch of the government".  Id.  at  

                                                                                                                                                                          



411.   But the court squarely held that legislative enactments  will not be permitted to  

                                                                                                                                                                         



"fetter the efficient operation of the courts or impair their ability to uphold their dignity  

                                                                                                                                                                



and authority."  Ibid.  

                                            



                           The issue  in  Continental Insurance was whether the maximum penalty  

                                                                                                                                                               



specified in the contempt statute was binding on the courts if that maximum penalty was  

                                                                                                                                                                      



clearly inadequate to preserve the court's  authority and efficacy.   But courts in other  

                                                                                                                                                                   



       12  

              Quoting  In re Shortridge                       , 34 P. 227, 229 (Cal. 1893).                           



                                                                                 -   13 -                                                                           2472
  


----------------------- Page 14-----------------------

 states have held that this same principle                                                                                                                                                                                                                   -   the   principle that the contempt power is                                                                                                                                                                                                                                   



 inherent in the judicial branch of government - forbids the legislature from restricting                                                                                                                                                                                                                                                                                                                                                                                                   



the judiciary's use of the contempt power, or limiting the instances in which this power                                                                                                                                                                                                                                                                                                                                                                                                                          



may be employed.                                                                                                     



                                                                                    See Walker v. Bentley                                                                                                                 , 660 So.2d 313, 317-321 (Fla. App. 1995) (holding                                                                                                                                                                                                                            



unconstitutional   a   statute   which   prohibited   courts   from   using   criminal   contempt  



proceedings to enforce domestic violence restraining orders, and which required that all                                                                                                                                                                                                                                                                                                                                                                                                                                                    



 such prosecutorial decisions be made by the executive branch);                                                                                                                                                                                                                                                                                                                                         LaGrange v. State                                                                                                   , 153   



N.E.2d 593, 595 (Ind. 1958) ("The power to punish for contempt ... is essential to the                                                                                                                                                                                                                                                                                                                                                                                                                                               



 existence and functioning of our judicial system, and the legislature has no power to take                                                                                                                                                                                                                                                                                                                                                                                                                                    



  [it] away or materially impair it.").                                                                                                                                                                                  



                                                                                    If, as our supreme court held in                                                                                                                                                          Continental Insurance                                                                                                                         , the contempt power                                                                    



 is   an   inherent   power   of   the   judicial   branch,   then   one   essential   facet   of   judicial  



 independence is the ability to wield this contempt power - or to refrain from wielding                                                                                                                                                                                                                                                                                                                                                                                                               



 it - without regard to the desires of executive or legislative officials.                                                                                                                                                                                                                                                                                                                                                                  



                                                                                    The rule that the State proposes - a rule requiring courts to entertain and                                                                                                                                                                                                                                                                                                                                                                    



 adjudicate all criminal contempt charges filed by the State - would not only seriously                                                                                                                                                                                                                                                                                                                                                                                                           



undermine judicial independence, but it would also give the State enormous power to                                                                                                                                                                                                                                                                                                                                                                                                                                                         



 influence the course of all litigation, both civil and criminal.                                                                                                                                                                                                                                                                                                               



                                                                                    Under AS 09.50.010(5), any willful "disobedience of a lawful judgment,                                                                                                                                                                                                                                                                                                                                



 order,   or   process   of   the   court"   constitutes   an   act   of   contempt.     Likewise,   under  



AS 09.50.010(3), any "[willful] neglect or violation of duty" committed by a lawyer, or                                                                                                                                                                                                                                                                                                                                                                                                                                                     



 a police officer, or a judge - indeed, committed by "[any] person appointed or elected                                                                                                                                                                                                                                                                                                                                                                                                                       



to perform a judicial or ministerial service" - also constitutes an act of contempt.                                                                                                                                                                                                                                                                                                                                                                                                                                            



                                                                                    Anyone acquainted with judicialproceedings                                                                                                                                                                                                                                    knows that, from time to time,                                                                                                                           



 attorneys fail to meet court deadlines, or fail to satisfactorily comply with court orders,                                                                                                                                                                                                                                                                                                                                                                                                                  



                                                                                                                                                                                                                                                            -   14 -                                                                                                                                                                                                                                                           2472
  


----------------------- Page 15-----------------------

 or arrive late for scheduled court appearances.                                                                                                                                                                                                                                               Moreover, fines and restitution are not                                                                                                                                                                                    



 always paid on time; witnesses fail to appear for depositions; and court rulings are not                                                                                                                                                                                                                                                                                                                                                                                                                                



 always issued when promised.                                                                                                                                                              



                                                                                  Because these things occur on a regular basis, it would fundamentally -                                                                                                                                                                                                                                                                                                                                                                     



 and detrimentally - alter the litigation process if the Department of Law were given a                                                                                                                                                                                                                                                                                                                                                                                                                                                



unilateral authority to decide who would                                                                                                                                                                                                                         face criminal prosecution for these acts of                                                                                                                                                                                                                   



 "disobedience", "neglect", and "violation of duty".                                                                                                                                                                                                                                                                   



                                                                                  In cases where                                                                                 the State was a party, the State would have a privileged                                                                                                                                                                                                                                 



 status - unlike their opponents - not only to                                                                                                                                                                                                                                       ask  the court to pursue criminal contempt                                                                                                                                                      



proceedings in these circumstances, but to                                                                                                                                                                                                               demand  it.   As the New Jersey Supreme Court                                                                                                                                                                                                     



 explained in                                                             Roselle, litigants should not be permitted "to invoke the criminal process                                                                                                                                                                                                                                                                                                                                          



 as a thumbscrew to achieve a private result."                                                                                                                                                                                                                                     169 A.2d at 159.                                                                                                



                                                                                  And in cases where the State was not a party, executive branch prosecutors                                                                                                                                                                                                                                                                                                            



would have unfettered authority to effectively intervene in the litigation and force the                                                                                                                                                                                                                                                                                                                                                                                                                                 



 court to entertain contempt proceedings against any attorney, party, or witness who the                                                                                                                                                                                                                                                                                                                                                                                                                                   



 government believed had violated one of the provisions of AS 09.50.010.                                                                                                                                                                                                                                                                                                                 



                                                                                  These   results   would   seriously   shift   the   balance   of   power   between   the  



 executive   and   judicial branches                                                                                                                                                                  of   government.     They   would   materially   "fetter   the  



 efficient operation of the courts [and] impair their ability to uphold their dignity and                                                                                                                                                                                                                                                                                                                                                                                                                            



 authority."   Continental Insurance                                                                                                                                                                                , 548 P.2d at 411.                                                                                              



                                                                                  For these reasons, we doubt that the Alaska Legislature would have the                                                                                                                                                                                                                                                                                                                                                                  



 authority to order the superior court to entertain and adjudicate all charges of criminal                                                                                                                                                                                                                                                                                                                                                                                                  



 contempt filed by the executive branch, regardless of whether the court believed that a                                                                                                                                                                                                                                                                                                                                                                                                                                              



 criminal prosecution was warranted.                                                                                                                                                                                           But we need not reach this question of constitu-                                                                                                                                                                                                         



tional law, because we are convinced that the legislature did not intend this result when                                                                                                                                                                                                                                                                                                                                                                                                                   



 it enacted the current version of Alaska's contempt statutes.                                                                                                                                                                                                                                                                                                                



                                                                                                                                                                                                                                                      -   15 -                                                                                                                                                                                                                                                     2472
  


----------------------- Page 16-----------------------

                                              As   we   explained   earlier,   the   contempt   power   has   for   centuries   been  



recognized as an inherent power of the judiciary.                                                                                                                          Under the Alaska Supreme Court's                                                                   



decision in                            Continental Insurance                                                           , the legislature has a limited, non-binding authority                                                                                            



to specify the procedures and penalties that will apply                                                                                                                                       to contempt proceedings.                                                                   For  



instance, as we noted earlier, we do not doubt the legislature's decision to designate                                                                                                                                                                                 



contempt as a crime, thus empowering the executive branch to file contempt charges,                                                                                                                                                                                         



even when the government is not an aggrieved party.                                                                                                                                   But there is nothing in the history                                                        



of AS 09.50.020 to indicate that the legislature intended to circumscribe the judiciary's                                                                                                                                                                           



traditional authority to make the final decision regarding who should be prosecuted for                                                                                                                                                                                                       



criminal contempt.                                                 



                                              The current version of the statute was drafted during the 2006 legislative                                                                                                                                               



session.     The   Department of Law initiated this process by seeking a change in the                                                                                                                                                                                                       



wording of AS 09.50.020(a), the provision that specifies the penalties for contempt.                                                                                                                                                                                                     The  



Department's declared purpose was to increase these                                                                                                                                         penalties so that they offered a                                                                        



                                                                                                                                                                                                                                                                                  13  

credible deterrent to witnesses who might be tempted to ignore their subpoenas.                                                                                                                                                                                                           



                                              Before the 2006 amendment, the statute specified a penalty of up to $300  

                                                                                                                                                                                                                                                                                       



or up to 6 months in jail for acts of "disorderly, contemptuous,  or insolent behavior  

                                                                                                                                                                                                                                                                          



toward  [a]  judge  while  holding ...  court",  or  for  any  other  "breach  of  the  peace,  

                                                                                                                                                                                                                                                                                 



boisterous  conduct,   or  violent   disturbance"  that   tended  to  interrupt   a  judicial  

                                                                                                                                                                                                                                                                             

proceeding. 14                                           This  same  penalty  was  theoretically  available  for  all  other  acts  of  

                                                                                                                                                                                                                                                                                               



contempt (including disobedience of a subpoena) - but only if "a right or remedy of a  

                                                                                                                                                                                                                                                                                                     



party ... was defeated or prejudiced by the contempt".  In all other instances (i.e., absent  

                                                                                                                                                                                                                                                                                  



            13  

                       See  Minutes   of   the Senate Judiciary Committee for March 8, 2006 @ 9:40:01 to                                                                                                                                                                                          

9:42:44  (remarks of Chief Assistant Attorney General Dean Guaneli).                                                                                                                                                                



            14  

                                                                                                                                                                                                                       

                       Former AS 09.50.010(1)-(2) and former AS 09.50.020(a).  



                                                                                                                                                           

                                                                                                                                          -  16 -                                                                                                                                        2472
  


----------------------- Page 17-----------------------

proof that a party was prejudiced), the maximum penalty for these contempts was "a fine                                                                



                                             15  

of not more than $100".                          



                        The Department of Law was concerned that, in numerous cases, the State  

                                                                                                                                                     



would  not  be  able  to  prove  that  a  witness's  refusal to  honor  a  subpoena  actually  

                                                                                                                                              



prejudiced the State's case - meaning that the recalcitrant witness would face no more  

                                                                                                                                                     



than a $100 fine.  To solve this problem, the State asked the Legislature to eliminate the  

                                                                                                                                                        



requirement of prejudice when the act of contempt was a failure to honor a subpoena or  

                                                                                                                                                          



a refusal to be sworn  as  a witness - thus subjecting these witnesses to a penalty of  

                                                                                                                                                          



6 months in jail regardless of whether their refusal to testify made any difference to the  

                                                                                                                                                        

outcome of the proceeding. 16  

                                                       



                        Eventually,  in August 2006,  the House Judiciary Committee adopted a  

                                                                                                                                                            



revised version of the bill that went considerably farther than the Department's proposal.  

                                                                                                                                                               



This is the version that ultimately became law; see TSSLA 2006 (i.e., session laws of the  

                                                                                                                                                        



third special session of 2006), ch. 1,  1.  

                                                                             



                        Instead  of  abrogating  the  requirement  of  prejudice  for  one  group  of  

                                                                                                                                                         



contemnors  (witnesses  who  failed  to  honor  their  subpoenas),  the  House  version  

                                                                                                                                               



completely eliminated the requirement of prejudice for all acts of contempt.  At the same  

                                                                                                                                                     



time, the House increased the penalties for all acts of contempt.  Criminal contempt is  

                                                                                                                                                           



now a class A misdemeanor - meaning that the punishment is imprisonment for up to  

                                                                                                                                                           



 1 year, and a fine of up to $10,000.                                (See AS 12.55.135(a) and AS 12.55.035(b)(5).)  

                                                                                                                                                             



      15  

            Former AS 09.50.020(a).                       



      16  

            See  CSSB 206 (Jud) (i.e., the Senate Judiciary Committee's substitute for Senate 

                                                                                                                                                   

Bill  206)  offered  on  March  15,  2006.                                 And  see  the  Minutes  of  the  Senate  Judiciary  

                                                                                                                                              

Committee for March 8, 2006 @ 9:40:00 to 9:42:44 (discussing Senate Bill 206 (24th  

                                                                                                                                                    

Legislature)), and the Minutes of the House Judiciary Committee for August 4, 2006 @  

                                                                                                                                                          

3:48:00 to 3:52:20 (discussing a subsequent version introduced during special session, SB  

                                                                                                                                                         

3005).  

              



                                                                         -  17 -                                                                     2472
  

                                                                                   


----------------------- Page 18-----------------------

                             Throughout    the    discussion    of    these    provisions    by    legislators    and  



representatives of the Department of Law, no one ever suggested that this revised statute                                                                                       



would   endow   the   Department   of   Law   with   a   new   authority   to   pursue   contempt  



prosecutions against the wishes of the court.                                                       Instead, the revised law was repeatedly                            



characterized as a measure designed to give                                                       the courts              greater power and flexibility to                                



                                                             17  

deal with acts of contempt.                                       



                             Returning to the facts of the present case:  Williams  may have willfully  

                                                                                                                                                                            



failed to honor his grand jury subpoena, but it is clear that the superior court did not  

                                                                                                                                                                                      



believe that a criminal contempt prosecution was warranted.  That beingso, the State had  

                                                                                                                                                                                       



no authority to require the court to adjudicate the contempt charge.  

                                                                                                                                                     



               Conclusion  



                             The  superior  court's  dismissal of  the  contempt  charge  in  this  case  is  

                                                                                                                                                                                          



AFFIRMED.  



        17  

               See  Minutes of the House                                 Judiciary Committee for August 4, 2006 @ 3:48:00 to                                                              

3:52:20   (remarks   of   Representative   Max Gruenberg                                                          and   remarks   of   Assistant   Attorney  

General Dean Guaneli).                             



                                                                                        -   18 -                                                                                    2472
  

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