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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
AGNES MARTINA TOMMY,
Court of Appeals No. A-13293
Appellant, Trial Court No. 3SW-17-00168 CR
v.
O P I N I O N
STATE OF ALASKA,
Appellee. No. 2749 - May 26, 2023
Appeal from the District Court, Third Judicial District, Seward,
George Peck, Magistrate Judge.
Appearances: Bradly A. Carlson, Attorney at Law, under
contract with the Public Defender Agency, and Samantha
Cherot, Public Defender, Anchorage, for the Appellant. Donald
Soderstrom, Assistant Attorney General, Office of Criminal
Appeals, Anchorage, and Clyde "Ed" Sniffen Jr., Acting
Attorney General, Juneau, for the Appellee.
Before: Wollenberg, Harbison, and Terrell, Judges.
Judge WOLLENBERG.
Agnes Martina Tommy was convicted of two misdemeanor offenses under
Alaska law following a jury trial in district c ourt presided over by a magistrate judge.
Under AS 22.15.120(a)(6), a magistrate may "hear, try, and enter judgments" in a
misdemeanor case only "if the defendant consents in writing that the magistrate may try
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the case." But the record does not show that Tommy consented to be tried before a
magistrate judge.
On appeal, Tommy argues that her lack of consent to trial before a
magistrate judge requires reversal of her convictions. Furthermore, Tommy contends
that this issue can be raised for the first time on appeal because the absence of her
consent deprived the court of subject matter jurisdiction, and a defect in subject matter
jurisdiction can be raised at any time. In response, the State argues that Tommy's lack
of consent was merely a procedural error, not a prerequisite to subject matter jurisdiction.
Thus, according to the State, because Tommy did not raise this issue in the trial court,
she must show plain error on appeal.
For the reasons explained in this opinion, we agree with Tommy that she
can raise this issue for the first time on appeal and is not required to demonstrate plain
error, although we need not strictly decide whether the issue is "jurisdictional" in nature.
Instead, we conclude that AS 22.15.120(a)(6) requires the express, personal consent of
the defendant, and that defense counsel's failure to raise this issue in the trial court does
not waive this requirement - particularly in the absence of any indication in the record
that Tommy was ever informed that her case could not be tried before a magistrate judge
without her consent. We therefore reverse Tommy's convictions and remand for a new
trial.
Given this resolution, we need not reach Tommy's additional claim that the
State committed discovery violations and that the court erred in denying her requested
remedies for these violations.
Factual background
In August 2017, a Seward police officer responded to a report of a woman
causing a disturbance outside a restaurant. Upon arriving at the scene, the officer
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encountered a woman, identified as Agnes Martina Tommy, who was "loud, yelling,"
and "highly intoxicated." Although the officer did not observe any crimes, Tommy was
"stumbling all over the place" and was unable to provide her address or the contact
information for someone who could care for her. Because Tommy appeared unable to
care for herself, the officer took her into protective custody and transported her to a
hospital.
According to the officer, at the hospital, Tommy continued to be agitated
and aggressive, and she picked up a chair and began swinging it "every which way"
before the officer pulled it from her. For this conduct, Tommy was arrested for
disorderly conduct. Two officers transported Tommy to the local jail, where -
according to the officers' later testimony - she again became belligerent and kicked an
officer who was attempting to conduct a strip search.
Based on Tommy's conduct at the hospital and at the jail, the State charged
her with two counts of fourth-degree assault, in addition to the one count of disorderly
conduct.1
Because Tommy was charged with misdemeanor offenses under Alaska
2
Under AS 22.15.120(a)(6),
law, she was entitled to be tried before a district court judge.
Tommy could be tried before a magistrate judge, but only with her written consent.
Alaska Criminal Rule 5(f)(3) requires a judicial officer at a misdemeanor
arraignment to "inform the defendant that the case may not be tried before a magistrate
1 AS 11.41.230(a)(3) and AS 11.61.110(a)(5)/(6), respectively.
2 AS 22.15.060(a)(1)(A); AS 22.15.120(a)(6). In the absence of Tommy's consent to
be tried before a magistrate judge, she could be tried before either a district court judge or
a superior court judge. See AS 22.10.020(a); Alaska R. Admin. P. 24(e) & 45(e). When we
refer in this opinion to Tommy's right to be tried before a district court judge, we also intend
to include superior court judges.
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judge without the defendant's written consent." At Tommy's arraignment, however, the
judicial officer did not inform her of this right.
Tommy also never provided written consent to be tried before a magistrate
judge, as required by AS 22.15.120(a)(6). And there is no indication in the record before
us that Tommy provided oral consent.
Despite this lack of consent, Tommy's case proceeded to a jury trial before
a magistrate judge. The jury acquitted Tommy of fourth-degree assault for swinging the
chair, but convicted her of disorderly conduct (for recklessly creating a hazardous
3
condition for others) based on this same conduct.
The jury also convicted Tommy of
fourth-degree assault for kicking the police officer during booking at the jail.
This appeal followed.
The failure to comply with AS 22.15.120(a)(6) requires reversal of
Tommy's convictions
On appeal, Tommy argues that the failure to procure her written consent to
trial before a magistrate judge requires reversal of her convictions.
Magistrate judges are officers of the district court, but they have more
limited authority. As we previously explained in Akers v. State , "From the days when
Alaska was a territory, and up to the present day, Alaska has relied on judicial officers
4
who do not necessarily have formal training in the law."
These judicial officers have
been referred to by various titles: first, "deputy magistrates," then simply "magistrates,"
3 As the State notes, the judgment mistakenly indicates that Tommy was convicted of
disorderly conduct under AS 11.61.110(a)(5) (challenging another to a fight), instead of
AS 11.61.110(a)(6) (creating a hazardous condition), on which the jury was instructed.
4 Akers v. State , 389 P.3d 65, 68 (Alaska App. 2016). Although many current
magistrate judges do, in fact, have formal training in the law, formal law training is not
statutorily required.
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5
and today, "magistrate judges." Throughout the state's history, "one of the primary
roles of magistrate judges has been to provide or enhance judicial services in rural
locations."6
Indeed, "[a]s our legislature declared in 1959, magistrate judges were
intended to be '[judicial officers] of limited trial power sufficient to meet the immediate
7
requirements of justice in the less populated areas of the state.'"
Alaska Statute 22.15.120 defines the authority of magistrate judges by
listing the types of proceedings that they are empowered to conduct.8
As we explained
in Akers , this list of authorized proceedings is exclusive.9
Among the list of proceedings
is subsection (a)(5), which authorizes magistrate judges "to give judgment of conviction
upon a plea of guilty or no contest by the defendant in a criminal proceeding within the
jurisdiction of the district court" - in short, to enter judgment in all misdemeanor cases
in which a defendant pleads guilty or no contest. And subsection (a)(7) authorizes
magistrate judges "to hear, try, and enter judgments" in a limited number of cases - i.e.,
"cases involving minor offenses and violations of ordinances ofpolitical subdivisions[.]"
Tommy's case concerns subsection (a)(6). This subsection is unique among
the grants of authority contained in AS 22.15.120 because it conditions the magistrate
judge's authority on the consent of the defendant: it authorizes magistrate judges to
"hear, try, and enter judgments" in all other misdemeanor cases "if the defendant
5 SLA 1959, ch. 184, § 25; SLA 1966, ch. 24, § 3; Special Orders of the Chief Justice
Nos. 6305 and 6306 (Dec. 21, 2012).
6 Akers , 389 P.3d at 68.
7 Id. (quoting SLA 1959, ch. 184, § 25).
8 See id. at 69.
9 Id. ; AS 22.15.120(a) (providing that "[a] magistrate shall preside only in cases and
proceedings" as listed in that statute and other specifically enumerated statutes).
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consents in writing that the magistrate may try the case." In other words, under this
provision, a defendant charged with a misdemeanor has a statutory right to be tried
before a district court judge unless they consent in writing to be tried before a magistrate
judge. 10
It is undisputed that Tommy did not expressly consent (in writing or orally)
to be tried before a magistrate judge. What makes this case difficult is that Tommy did
not raise this issue in the trial court. Under the general rule of preservation, a defendant
11
must raise an objection in the trial court in order to preserve that argument for appeal.
A defendant who fails to raise an objection is said to have waived, forfeited, or failed to
12
preserve the claim. Thus, when a defendant raises an issue on appeal that was not
raised in the trial court, the defendant must usually point to some exception to the general
13
rule of preservation.
Recognizing this requirement, Tommy argues that the failure to obtain her
written consent deprived the magistrate judge of subject matter jurisdiction. Subject
matter jurisdiction refers to "the legal authority of a court to hear and decide a particular
14
type of case."
According to Tommy, magistrate judges do not have the legal authority
10 See AS 22.15.060(a)(1)(A) (providing that the district court generally has jurisdiction
over misdemeanor offenses).
11 Johnson v. State , 328 P.3d 77, 82 (Alaska 2014) (citing Hoffman Constr. Co. of
Alaska v. U.S. Fabrication & Erection, Inc. , 32 P.3d 346, 355 (Alaska 2001)).
12 See id. at 82 n.20; Charles v. State, 287 P.3d 779, 781-82 (Alaska App. 2012).
13 See Johnson, 328 P.3d at 82 ("[T]he general preservation rule is not absolute, and it
is subject to prudential exceptions, such as the plain error doctrine." (citations omitted)).
14 Northwest Med. Imaging, Inc. v. State, Dep't of Revenue, 151 P.3d 434, 438 (Alaska
2006) (quoting Erwin Chemerinsky, Federal Jurisdiction, at 257 (3d ed.1999)); see also
State v. W.P., 349 P.3d 181, 185 (Alaska App. 2015) (defining subject matter jurisdiction as
(continued...)
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----------------------- Page 7-----------------------
to try misdemeanor cases unless the defendant consents in writing. And because a defect
in subject matter jurisdiction can be raised at any time, Tommy argues that the failure to
obtain her written consent requires reversal of her convictions regardless of her failure
15
to object to this defect in the trial court.
The State responds that a magistrate judge is an officer of the district court,
16
and that district courts have general jurisdiction over misdemeanors. The State argues
that subject matter jurisdiction adheres to the court, not the type of judicial officer, and
that the written consent requirement of AS 22.15.120(a)(6) should therefore be treated
as a procedural requirement, not a prerequisite to subject matter jurisdiction.
There is support for Tommy's position in federal cases construing an
analogous provision. Under 18 U.S.C. § 3401, a United States magistrate judge has
"jurisdiction to try persons accused of . . . misdemeanors," but may not do so "unless the
defendant" - after an explanation of the right to be tried by a district judge -
"expressly consents to be tried before the magistrate judge and expressly and specifically
17
waives trial, judgment, and sentencing by a district judge."
Given this statutory
language, federal cases have characterized the provision as governing the magistrate's
14 (...continued)
"the court's legal authority to hear and decide a particular type of case").
15 Robertson v. Riplett, 194 P.3d 382, 386 (Alaska 2008) ("Subject matter jurisdiction
. . . may be raised at any stage of the litigation and if noticed must be raised by the court if
not raised by the parties." (citations omitted)).
16 See AS 22.15.060(a)(1).
17 18 U.S.C. § 3401(a)-(b).
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"jurisdiction" to preside over, or enter judgment in, a misdemeanor case - and have
reversed when the defendant's express consent was lacking.18
But regardless of whether we characterize the magistrate judge's authority
as one of "jurisdiction" - or rather, as deriving from the defendant's express consent
- we agree with Tommy that the failure to obtain her consent requires reversal of her
convictions.
We take guidance from the Alaska Supreme Court's decision in Morgan
19
v. State.
In Morgan, the defendant's peremptory challenge of the assigned judge under
Alaska Criminal Rule 25 was denied as untimely. Following this denial, the defendant
pleaded guilty. The defendant subsequently moved to withdraw his pleas, arguing that,
18 See, e.g., United States v. Colacurcio, 84 F.3d 326, 328-29 (9th Cir. 1996)
(recognizing that, by statute, a magistrate judge only has authority to conduct a probation
revocation hearing in a misdemeanor case if, inter alia, the defendant consents and vacating
order revoking probation in the absence of consent); N.L.R.B. v. A-Plus Roofing, Inc., 39
F.3d 1410, 1415-16 (9th Cir. 1994) (recognizing that "federal magistrates are creatures of
statute, and so is their jurisdiction. We cannot augment it; we cannot ask them to do
something Congress has not authorized them to do," and reversing criminal trial proceedings
before a magistrate based on the absence of consent); Taberer v. Armstrong World Indus.,
Inc. , 954 F.2d 888, 907-08 (3d Cir. 1992) (stating that 18 U.S.C. § 3401(b) "explicitly
provides that 'the magistrate's criminal trial jurisdiction depends on the defendant's specific,
written consent,'" and reversing defendant's contempt convictions because the defendant did
not consent to be tried by the magistrate judge (citations omitted)); see also United States v.
Bryson, 981 F.2d 720, 723 (4th Cir. 1992) (stating that federal law "gives a magistrate judge,
when designated by the district court, jurisdiction to try and sentence" those accused of a
misdemeanor, so long as the defendant consents); United States v. Vasquez, 74 F. Supp. 2d
964, 966 (S.D. Cal. 1999) (stating that § 3401(b) "accord[s] magistrate judges jurisdiction
to conduct trials and enter sentences for misdemeanors with the consent of the parties").
19 Morgan v. State , 635 P.2d 472 (Alaska 1981).
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because his peremptory challenge of the judge was improperly denied, the superior court
lacked jurisdiction to accept his pleas. The superior court denied his motion.20
On appeal, the supreme court agreed with the defendant that his peremptory
challenge was improperly denied. But the State argued that regardless of whether the
challenge was improperly denied, the defendant had waived the issue by pleading guilty.
In response, the defendant argued, much like Tommy does in this appeal, that peremption
as of right was "a matter of jurisdiction and not merely of procedure."21
The supreme court found "little advantage in resorting to the labels of
personal and subject matter jurisdiction" because "[t]he peremptory challenge right does
not fall easily within either classification":
Although a valid peremptory challenge does negate the
authority of a particular judge to preside over a particular
case, it affects neither the personal nor the subject matter
jurisdiction of the court; another judge of the same court may
exercise both types of jurisdiction unaffected by the
challenge.[22]
The supreme court therefore concluded that the "more useful inquiry is whether or not
23
the peremptory challenge may be waived, and whether the waiver need be express."
20 Id. at 474.
21 Id. at 478.
22 Id. at 479.
23 Id. The supreme court ultimately determined that the right to peremptorily challenge
a judge was sufficiently weighty that defendants should have the right to immediately appeal
the denial of such a challenge. Id. at 480. The supreme court further held that since the
defendant himself had not been aware of the new rule, and since he had established manifest
injustice from the denial of his peremptory challenge, he should be permitted to withdraw his
plea. Id. at 481 & n.17.
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That same approach makes sense here. Rather than asking whether
Tommy's lack of consent deprived the magistrate judge of jurisdiction, we instead ask
whether the defendant's right to be tried before a district court judge can be waived, and
24
whether that waiver needs to be express. Once the question is framed in this way, the
answer becomes obvious: under AS 22.15.120(a)(6), a defendant's right to be tried
before a district court judge can only be waived by the express consent of the defendant
to trial before a magistrate judge.
We note that the requirement of a defendant's express consent is not
anomalous. Alaska courts have long held that certain rights are personal to the defendant
and cannot be waived or forfeited by the actions of counsel. In Walker v. State, for
example, the supreme court held that the constitutional right to trial by jury requires that
the trial court personally address the defendant and that the failure to do so is "error per
se."25
Alaska courts have also recognized that when a right is personal to the defendant,
it cannot be waived by counsel's failure to object, as this would allow an attorney to
26
"accomplish by silence what he had no authority to do by words."
24 As both this Court and the Alaska Supreme Court have recognized, the term "waiver"
is ambiguous because it "fails to distinguish between two types of cases: those involving a
mere failure to object, and those involving the knowing and willful relinquishment of a
right." Johnson v. State , 328 P.3d 77, 82 n.20 (Alaska 2014) (citing Charles v. State, 287
P.3d 779, 781 (Alaska App. 2012)). Morgan uses the general term "waiver" to refer to both
concepts, and distinguishes between the two by referring to "implied" waiver (i.e., a mere
failure to object), and "express" waiver (i.e., a knowing and willful relinquishment of a
right). Because we rely on Morgan here, we use the same terminology, although the term
"implied waiver" should be understood to mean "forfeiture."
25 Walker v. State, 578 P.2d 1388, 1389-90 (Alaska 1978); see also Alaska R. Crim.
P. 23(a) (requiring an express waiver by the defendant of the right to a jury trial).
26 Lee v. State , 509 P.2d 1088, 1091-92 (Alaska 1973).
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Of course, the right to be tried before a district court judge derives from
statute, rather than the constitution. In interpreting a statute, our role is to "ascertain the
legislature's intent and then to construe the statute so as to implement that intent."27
As
the legislature acknowledged in enacting AS 22.15.120(a)(6), magistrate judges serve
an important role in enhancing access to judicial services, particularly in rural locations.
But as we recognized in Akers , the legislature's inclusion of the consent requirement
"underscores its declared intention of limiting the authority of magistrates to conduct
28
certain contested proceedings."
There are policy reasons for the legislature's limitation of the magistrate
judge's authority: district court judges are required to have engaged in the active
practice of law for at least three years, or to have served as a magistrate judge for at least
29
Magistrate judges, by contrast, are only
seven years and be a law school graduate.
required to be United States citizens, residents of Alaska, and at least twenty-one years
30
old, and they are not required by statute to have formal training in the law.
In order to balance the need to enhance access to judicial services with a
defendant's interest in being tried before a judge trained in the practice of law, the
legislature required that defendants provide their express consent before they are tried
on misdemeanor offenses before a magistrate. To hold that this requirement can be
waived through the mere inaction of counsel would frustrate the clear intent of the
27 Brown v. State, 404 P.3d 191, 193 (Alaska App. 2017) (citations omitted).
28 Akers v. State , 389 P.3d 65, 68 (Alaska App. 2016).
29 AS 22.15.160(a); Alaska R. Admin. P. 19.1.
30 AS 22.15.160(b); Akers , 389 P.3d at 68 & n.5.
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legislature - it would allow an attorney to "accomplish by silence what he had no
31
authority to do by words."
The State argues that Tommy "implicitly consented" to having the
magistrate judge preside over her trial by participating in pretrial proceedings and in trial
before the magistrate. But unlike the peremptory challenge statute - under which a
defendant waives the right to peremptorily challenge a judge if the defendant participates
in certain hearings before a judge, knowing that the judge has been permanently assigned
to the case32
- AS 22.15.120(a)(6) requires the defendant's express and personal
consent to be a tried before a magistrate. (Indeed, in Akers , we held that the defendant
was entitled to appear before a district court judge for her contested misdemeanor
probation revocation proceeding, even though she had appeared before the same
33
)
magistrate judge for her prior probation revocation proceeding without objection.
Moreover, the absence of Tommy's express consent is particularly problematic here,
where there is no indication that Tommy was ever informed of her right to be tried before
34
a district court judge and waived the right in light of that knowledge.
As the Third Circuit stated when construing the analogous federal
provision:
Although failure to raise an objection in the first instance
ordinarily waives the right to raise the matter on appeal,
31 Lee , 509 P.2d at 1091.
32 Alaska R. Crim. P. 25(d)(5).
33 Akers , 389 P.3d at 70.
34 Cf. Roell v. Withrow, 538 U.S. 580, 587 n.5 (2003) (interpreting a federal statute
authorizing magistrate judges to conduct proceedings in a civil matter "upon the consent of
the parties," and concluding that "[c]ertainly, notification of the right to refuse the magistrate
judge is a prerequisite to any inference of consent").
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----------------------- Page 13-----------------------
Congress has specified that criminal defendants must give
their express, written consent to trial before a magistrate
judge. Therefore, cases inferring waiver of rights from a
criminal defendant's failure to object do not apply here. To
hold that a criminal defendant may waive the Act's consent
requirement implicitly is to ignore Congress's insistence
upon explicit, written consent.[35]
For the same reason, we conclude that the failure to obtain Tommy's express consent to
be tried before a magistrate judge requires reversal of her convictions, regardless of the
fact that the issue was not raised in the trial court.
Finally, we note that by its terms, AS 22.15.120(a)(6) requires "consent[]
in writing." Here, however, the record shows that there was no consent, written or
otherwise. We therefore need not decide whether a failure to obtain written consent
36
would require reversal if the defendant consented orally on the record.
35 Taberer v. Armstrong World Indus., Inc. , 954 F.2d 888, 908 (3d Cir. 1992). The
United States Supreme Court has never squarely confronted the question of whether the
consent requirement of 18 U.S.C. § 3401(b) is jurisdictional, such that implied consent is
insufficient. But the Court has addressed analogous federal statutes that authorize magistrate
judges to conduct a civil trial and other proceedings in a criminal context, like voir dire. In
doing so, the Court has implied that the statutes governing proceedings other than a full
criminal misdemeanor trial require less stringent forms of consent. See Gonzalez v. United
States, 553 U.S. 242, 247, 252 (2008) (contrasting 18 U.S.C. § 3401, which requires the
"express, personal consent of the defendant" for a magistrate judge to preside over a
misdemeanor trial, with the federal statute governing civil cases, under which a party may
authorize a full-time magistrate judge to preside over a civil trial via implied consent (citing
Roell, 538 U.S. at 590)).
36 Cf. Walker v. State, 578 P.2d 1388, 1390 (Alaska 1978) (noting that under Alaska
Criminal Rule 23(b), which requires a written waiver for a trial by a jury of less than twelve
members, "oral consent may be substituted for written").
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Tommy's claim of discovery violations
Tommy raises one additional point on appeal. Tommy argues that the
magistrate judge erred in declining to order the remedies her attorney requested for the
State's failure to disclose two items prior to trial - a use-of-force incident report created
by the officer whom Tommy was accused of kicking at the jail and a video recording that
captured that incident. Because we are remanding Tommy's case for a new trial, we do
not address this discovery issue.
Conclusion
We REVERSE the judgment of the district court.
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