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Williams v. State (11/24/2006) ap-2074

Williams v. State (11/24/2006) ap-2074

     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

             303 K Street, Anchorage, Alaska  99501
                      Fax:  (907) 264-0878


) Court of Appeals No. A-9139
Petitioner, ) Trial Court No. 3AN-04-3858 CR
v. )
) O P I N I O N
Respondent. )
) No. 2074 - November 24, 2006
Petition  for  review
          from  the  District  Court,  Third  Judicial
          District,   Anchorage,  Sigurd  E.   Murphy,
          Appearances: Brian T. Duffy, Law  Office  of
          Dan  Allan,  Anchorage, for  the  Appellant.
          Kenneth  M.  Rosenstein, Assistant  Attorney
          General, Office of Special Prosecutions  and
          Appeals,  Anchorage, and David  W.  M rquez,
          Attorney  General, Juneau, for the Appellee.
          Cynthia  M.  Hora  and  Christine  M.  Pate,
          Alaska  Network  on  Domestic  Violence  and
          Sexual  Assault,  Sitka,  as  amicus  curiae
          aligned with the State.

          Before:   Coats, Chief Judge, and Mannheimer
          and Stewart, Judges.

          COATS, Chief Judge.

            This petition raises constitutional challenges  to  a
statute, AS 12.30.027(b), that prohibits all persons charged with
domestic violence from returning to the residence of the  alleged
victim   while   on   pre-trial  release    regardless   of   the
circumstances  of  the offense and without  any  opportunity  for
judicial review.
          Thomas  A. Williams was charged almost two and one-half
years ago with assaulting his wife of twenty-three years.   He is
apparently still awaiting trial.  As required by AS 12.30.027(b),
one  of the conditions of his pre-trial release forbids him  from
returning  to the residence he shared with his wife and daughter.
Williams argues that this condition violates the equal protection
clause  of the federal and state constitutions because it burdens
the  liberty interests of individuals who pose no danger  to  the
alleged victim.  He also argues that his right to procedural  due
process  was  violated because he was deprived of  a  fundamental
liberty  interest   the  right to live at home  with  his  family
without  the  opportunity for a meaningful hearing.   Because  we
agree  that AS 12.30.027(b) violates Alaskas guarantee  of  equal
protection  of the laws, we reverse the decision of the  district
          Facts and proceedings
          On  April 21, 2004, the police responded to a report by
a  passerby  that  a man was strangling a woman  in  a  house  on
Henderson  Loop  in Anchorage.  When the police  arrived  at  the
house,  they  contacted  Terese  Williams.   Williams  said   her
husband, Thomas Williams, had grabbed her around the neck  during
an  argument and pushed her to the ground.  She said  he  kept  a
firm grip on her throat and squeezed for several minutes and that
she  was very scared.   Then he let go and she got up.   She  was
shaken  and  went to smoke a cigarette; her husband  grabbed  his
bags  and  left.   She said her husband worked in Point Mackenzie
and  stayed with a friend while he was there. She also  told  the
police  her  husband had consumed some cough medicine  and  beers
before  the  incident.    The investigating  officer  noted  that
Terese Williams was visibly shaken and had a scratch on her chin,
a  finger impression under her right ear, and a small red mark on
the left of her neck.
          Based   on  these  allegations,  Thomas  Williams   was
charged with fourth-degree assault.1   The conditions of his pre-
trial release barred him from contacting his wife or returning to
the residence they had shared.
          Several  weeks  after his release, Williams  asked  the
court  to modify his release conditions so he could have  contact
with his wife.   His attorney said Williams and his wife had been
together for more than twenty years and that both parties  wished
to  renew  contact.  The State did not oppose the request.    The
prosecutor told the court that in looking at Mr. Williamss record
and  the facts in this case, the State [is] confident or at least
hopeful  that  it was an isolated incident.   The court  modified
the  bail  conditions to allow contact, but emphasized  that,  by
statute, Williams was still barred from the residence.
          Several  months  later, Williams asked  the  court  for
permission to stay in the residence to care for the house and dog
while  his  wife  and  daughter were in London.   Williamss  wife
supported  the request, and the State did not oppose.  The  court
also granted that request.
          On  December 23, 2004  eight months after the  incident
Williams,  again  with his wifes support,  asked  the  court  for
permission  to  return to the residence for  Christmas.  He  also
filed    a   motion   challenging   the   constitutionality    of
AS  12.30.027(b).  Williams argued that the statute infringed his
fundamental  right  to  maintain  his  marital  relationship  and
violated  his rights to both due process and equal protection  of
the  laws.    He  also  argued  that  the  statute  violated  the
constitutional  right of victims to be treated with  dignity  and
          In  support  of  Williamss request to return  home  for
Christmas,  Terese Williams told the court that she and  Williams
had  been  in contact for seven months, that they had  seen  each
other  regularly, and that maintaining separate residences was  a
financial  burden.   She  said she  and  her  husband  had  taken
vacations together outside Alaska while this case was pending and
that  she did not feel her husband was a threat.   She said their
older daughter was coming home for the holidays and that it would
be costly to find a place outside the residence for the family to
be together.
          Relying  on  AS  12.30.027(b),  District  Court   Judge
Sigurd  E.  Murphy  denied Williamss request  to  return  to  the
residence.   The  court  then scheduled a  hearing  on  Williamss
motion challenging the constitutionality of the statute.
          That  hearing  was  held  in  January  2005.   At   the
hearing, Terese Williams reiterated that she had been in  regular
contact  with  her husband and that she did not  feel  he  was  a
threat.   She said Williams was in counseling and that it was her
wish that he return to the residence.  She also asserted that the
police  and  witnesses  had exaggerated the  seriousness  of  the
incident.   The State opposed the motion but did not present  any
evidence.   The  prosecutor  simply observed  that  the  domestic
violence  in  the  home had escalated, noting that  Williams  had
threatened  his wife with a fire poker in 2002 (he was  convicted
of disorderly conduct for that offense), and was now charged with
assault for strangling his wife.
          On  February  2, 2005, Judge Murphy denied the  motion.
Judge   Murphy  interpreted  the  residence  restriction  in   AS
12.30.027(b)  as applying only in cases in which  the  court  had
already  determined under AS 12.30.020 and AS  12.30.027(a)  that
release of the accused on his or her own recognizance or with  an
unsecured  appearance  bond would pose a danger  to  the  alleged
victim  or  other household member or not reasonably  assure  the
accuseds  appearance in court.  Having construed the  statute  in
this   manner,   Judge  Murphy  found  no  deprivation  of  equal
protection or due process. He also found that the bail  condition
barring  Williams from returning home was appropriate  given  the
facts  of  this  case  and  Williamss  previous  conviction   for
disorderly  conduct. Williams filed a motion for reconsideration,
which the court denied.
          Williams then filed this petition for review, which  we

          The residence restriction in AS 12.30.027(b)
          applies  to  all  persons  charged  with  or
          convicted  of  a  crime  involving  domestic

          As  noted  above, Judge Murphy held that the  residence
restriction  in  AS 12.30.027(b) does not apply to  every  person
charged with a crime of domestic violence.  He adopted a narrower
reading  of the statute, ruling that courts are only required  to
bar  a person charged with domestic violence from the home of the
alleged  victim if the court first finds that the person  is  too
dangerous, or too much of a flight risk, to be released on his or
her own recognizance or with an unsecured appearance bond.
          We  disagree with this reading of the statute.  By  its
plain  language,  AS  12.30.027 applies to  the  release  of  all
persons charged with or convicted of crimes of domestic violence,
including those released without conditions:
               (a)  Before ordering release before  or
          after  trial, or pending appeal, of a person
          charged   with  or  convicted  of  a   crime
          involving domestic violence, the court shall
          consider the safety of the alleged victim or
          other  household  member.   To  protect  the
          alleged  victim, household member,  and  the
          public  and to reasonably assure the persons
          appearance,  the court may impose  bail  and
          any  of  the conditions authorized under  AS
          12.30.020,  any  of  the  provisions  of  AS
          18.66.100(c)(1) - (7) and (11),[2]  and  any
          other  condition necessary  to  protect  the
          alleged  victim, household member,  and  the
          public, and to ensure the appearance of  the
          person in court, including ordering the
          person to refrain from the consumption of alcohol.
               (b)  A court may not order or permit  a
          person released under (a) of this section to
          return  to  the  residence  of  the  alleged
          victim or the residence of a petitioner  who
          has  a  protective  order  directed  to  the
          person   and  issued  or  filed   under   AS
          18.66.100 - 18.66.180.[3]

          Under the first sentence of subsection (a), a court  is
required, in every domestic violence case, to consider the safety
of  the alleged victim or other household member before releasing
the  accused.   Under the second sentence, the court  may  impose
bail  or  any  of  the  release conditions  authorized  under  AS
12.30.020  or  certain provisions of AS 18.66.100(c)    if  those
conditions  are  needed to protect the victim  or  others  or  to
ensure  the accuseds appearance in court.  Thus, both  the  first
and  second  sentences of AS 12.30.027(a) encompass  persons  who
          are subjected to release conditions and persons who are released
on  their own recognizance or with an unsecured appearance  bond.
Because  subsection (a) encompasses both groups, subsection  (b),
which  applies to a person released under (a), does as well.   We
therefore  conclude that AS 12.30.027(b) applies to  all  persons
charged with or convicted of a crime involving domestic violence.
However,  in  this  case  we  are  only  asked  to  consider  the
application of AS 12.30.027(b) to a person on pre-trial release.

          Why   AS   12.30.027(b)   violates   Alaskas
          guarantee of equal protection to the  extent
          that  it  categorically forbids a person  on
          pre-trial release for domestic violence from
          returning to the home of the alleged victim

          Williams  argues  that  AS  12.30.027(b)  violates  the
equal  protection  clause of the federal and state  constitutions
because  it sweeps too broadly, infringing the liberty  interests
of persons who pose no threat of future violence.4
          The  State and Amicus Curiae counter that the residence
restriction  treats all members of Williamss  class   persons  on
release  on  a  charge of domestic violence  identically.   While
this  is true, it misses the point:  Williamss claim is that  the
statute  is  impermissibly  overinclusive,  in  that  it  burdens
individuals  who are not similarly situated with respect  to  the
purposes of the statute.5
          Article   I,  section  1  of  the  Alaska  Constitution
provides   that  all  persons  are  entitled  to  equal   rights,
opportunities,  and  protection under  the  law.   In  evaluating
whether  legislation violates this guarantee, we apply a flexible
three-part test that is dependent on the importance of the rights
               First,  it  must be determined  at  the
          outset  what  weight should be afforded  the
          constitutional  interest  impaired  by   the
          challenged enactment. ... Depending upon the
          of  the  interest involved, the  state  will
          have   a   greater  or  lesser   burden   in
          justifying its legislation.

               Second,   an   examination   must    be
          undertaken of the purposes served  by  [the]
          challenged statute.  Depending on the  level
          of  review  determined,  the  state  may  be
          required  to  show only that its  objectives
          were  legitimate,  at the  low  end  of  the
          continuum, or, at the high end of the scale,
          that  the  legislation was  motivated  by  a
          compelling state interest.
               Third,  an  evaluation  of  the  states
          interest in the particular means employed to
          further its goals must be undertaken.   Once
          again,  the  states burden  will  differ  in
          accordance  with  the determination  of  the
               level of scrutiny under the first stage of
          analysis.   At  the low end of  the  sliding
          scale,  we  have  held  that  a  substantial
          relationship   between  means  and  ends  is
          constitutionally adequate.   At  the  higher
          end  of the scale, the fit between means and
          ends  must  be much closer.  If the  purpose
          can  be  accomplished by a less  restrictive
          alternative,  the  classification  will   be
          As  noted  earlier,  Williams asserts  that  he  has  a
fundamental right to live at home with his wife and family  while
on pre-trial release and that any government infringement of that
right must be strictly scrutinized.
          We  have  previously subjected restrictions on  marital
association  to heightened scrutiny.   In Dawson  v.  State,7  we
observed  that  [a]  condition of probation  restricting  marital
association  plainly  implicates  the  constitutional  rights  of
privacy,  liberty, and freedom of association  and  ...  must  be
subjected to special scrutiny.8
          The  State  nevertheless  argues  that  no  fundamental
right  is  at stake in this case because Williamss conditions  of
release  permit  him  to see his wife  just not  in  their  home.
Hence, the State argues, the residence restriction has at most  a
modest,   incidental,  and  temporary  effect  on   the   marital
relationship. This argument understates the integral relationship
between  cohabitation  and marriage.  Moreover,  apart  from  any
burden  imposed  on  Williamss relationship  with  his  wife  and
family,  Williams has a liberty interest in choosing  his  family
living arrangements.
          In  Moore v. City of East Cleveland,9 the United States
Supreme  Court  addressed  a  city  ordinance  that  limited  the
occupancy  of a dwelling to members of a single family.10   While
that limitation in itself is unremarkable, this ordinance defined
family so narrowly that it forbade Inez Moore from living in  her
home  with  her son and two young grandsons because the grandsons
were  cousins, not brothers.11  When Moore refused to remove  the
offending grandson from her home, she was convicted of a crime.12
The  Supreme Court rejected the citys claim that it was  required
to  uphold  the  ordinance if it bore a rational relationship  to
permissible government objectives:
               When  a  city undertakes such intrusive
          regulation  of  the  family  ...  the  usual
          deference    to    the    legislature     is
          inappropriate.   This   Court    has    long
          recognized  that freedom of personal  choice
          in  matters of marriage and family  life  is
          one  of  the liberties protected by the  Due
          Process  Clause of the Fourteenth Amendment.
          ....  Of  course, the family is  not  beyond
          regulation.    But   when   the   government
          intrudes on choices concerning family living
          arrangements,   this  Court   must   examine
          carefully the importance of the governmental
          interests advanced and the extent  to  which
               they   are  served  by  the  challenged
          This  liberty  interest does not  disappear  because  a
person  has been charged with a crime.14   We hold based on  this
authority  that  Williams has an important, if  not  fundamental,
right to live in his home with his wife and family while on  pre-
trial  release,15  and that any state infringement of that  right
must be carefully scrutinized.16
          There  is  no  legislative history  to  illuminate  the
legislatures purpose in enacting the residence restriction in  AS
12.30.027(b).   But the State undoubtedly has  a  legitimate  and
compelling  interest  in  preventing domestic  violence   and  in
preventing  a person accused of domestic violence from  tampering
with  the  alleged victims testimony.17  On the other  hand,  the
government  has no legitimate interest in barring  a  person  who
poses  no appreciable risk of harming or intimidating the  victim
from returning to a shared residence.18  Given the importance  of
the  right  to  live  with  a member  of  ones  family,  we  will
invalidate the classification if we find an insufficiently  tight
fit  between  the purposes of the statute and the means  used  to
accomplish  those  purposes and if less restrictive  alternatives
are available.19
          The   State  argues  that  a  blanket  prohibition   on
returning  to the alleged victims residence is necessary  because
of the peculiar dynamics of domestic violence  in particular, the
well-documented tendency of victims to remain with their abusers.
The  State  argues  that  the victims of  domestic  violence  are
influenced by psychological and emotional forces that  too  often
make  impossible  an accurate assessment of whether  the  victims
safety  can be assured if the defendant is allowed to  return  to
[the]  residence.   The State concludes that a courts  evaluation
of  whether  a  defendant poses a risk to the alleged  victim  is
therefore  likely  to  be  little more than  an  educated  guess.
We  agree  that  it  can  be difficult for judges  to  accurately
predict whether a particular defendant will be dangerous  in  the
future.20  But judges confront this task countless times each day
throughout the American system of criminal justice21:
          The  trial court is not only the traditional
          but  also the superior tribunal for the kind
          of   information-gathering  which  a   sound
          foundation   for   a  bail   ruling   almost
          inevitably requires.  For it is there  that,
          at  a  hearing, the judge can come  face-to-
          face with the primary informational sources,
          and probe for what is obscure, trap what  is
          elusive,  and  settle what is controversial.
          It  is there, too, that the judge has at his
          disposal the judicial machinery necessary to
          marshal the facts typically relevant to  the
          release inquiry.[22]

          As  the  State  points out, courts are not  obliged  to
credit a victims assertion that her abuser is no threat  even  if
that testimony is undisputed.  And in this case, in urging us  to
affirm  the  district court, the State lists ample circumstantial
          evidence Judge Murphy could have relied on to discredit Terese
Williamss  statements:  the  couples  lengthy  marriage;   Terese
Williamss  testimony  about the financial strain  of  maintaining
separate  residences; Williamss prior conviction for  threatening
his  wife  with a fire poker; the fact that Terese  Williams  had
resumed  living  with  Williams after that  prior  incident;  the
eyewitness reports that Williams had strangled his wife; and  the
investigating officers observations of Terese Williamss injuries.
          Under  the  Alaska  Statutes, once a  court  determines
that a person charged with domestic violence poses a risk to  the
alleged  victim,  the  court  is authorized  to  impose  numerous
conditions  of  release (including removing the person  from  the
victims  residence23).   The  court may  appoint  a  third  party
custodian to supervise the accused person24; restrict the persons
travel,  association,  or  living  arrangements25;   require  the
person to return to custody after daylight hours26;  prohibit the
person  from  committing,  or  threatening  to  commit,  domestic
violence,  stalking, or harassment27; prohibit  the  person  from
contacting the victim28; direct the person to stay away from  the
victims   residence,  school,  car,  or  place  of  employment29;
prohibit  the  person  from possessing  a  firearm  or  consuming
alcohol30; or impose any other condition reasonably necessary  to
assure  the  alleged victims safety.31  Before  imposing  any  of
these  conditions,  the court must assess the  risk  the  accused
person  poses  to  the alleged victim, taking  into  account  the
possibility   perhaps  the  likelihood   that  the   victim   has
understated the risk of more violence.  The State has advanced no
evidence,  and  no convincing argument, that Alaska  courts  have
failed,  or  must necessarily fail, at this task.   Nor  did  the
legislature  make  any  findings on this issue.  The  legislative
history reveals no discussion of the residence restriction in  AS
          Furthermore,  because  of the  broad  definition  of  a
crime  involving  domestic violence, there is a substantial  risk
that the statute will burden the liberty interests of persons who
pose  no  appreciable risk of future violence.  Although domestic
violence  is normally understood to mean an assault committed  by
one  domestic  partner  against the other, the  offense  actually
encompasses  a  much broader range of persons and conduct.32   In
Alaska,   a   wide   variety  of  crimes    extortion,   reckless
endangerment, trespass, and criminal mischief, to  name  a  few33
are  domestic  violence  crimes if  they  are  committed  by  one
household  member against another.34  And household  member  does
not  only mean people who are, or have been, involved in a sexual
relationship;  it  also  includes  individuals  who  once   lived
together  in  any context or who dated in the past,  or  who  are
related   by   marriage   or  within   the   fourth   degree   of
          Of    course,   the   residence   restriction   in   AS
12.30.027(b) generally will  only burden the liberty interest  of
a  person who was living with the alleged victim at the  time  of
the  offense.  But even within this narrower context, it is  easy
to  imagine  situations  in which the condition  would  serve  no
legitimate  governmental purpose.  For instance, if a mother  had
an  accident  while  driving with her  infant  daughter  and  was
          charged with reckless endangerment or assault for that offense,
the  court would be obliged to prohibit the mother from returning
to  the  residence she had shared with her daughter.36   Or,   if
Williamss nineteen-year-old daughter, who was living at home  and
attending  college  during this time, had recklessly  burned  her
parents  front  porch and been charged with criminally  negligent
burning  for that offense, the court would be obliged to bar  her
from returning home for the duration of her pre-trial release.37
          Judge  Murphy  provided  another  example  of  how  the
residence restriction might create a significant hardship without
advancing the States interest in reducing domestic violence:
     Court:    Lets say you have a case where a couple have
               been  married  for a long  period  of  time.
               Theres no criminal activity.  They get along
               pretty  well.  As married couples often  do,
               they  have  little fights and disagreements.
               Well, one night they both have been drinking
               and the husband calls the wife a fat pig  or
               some other obnoxious statement, and the wife
               slaps him.  He then goes ahead and calls the
               police.  The police arrive.

                    Now   ...   I   assume  the  prosecutor
               acknowledges  that   the  [Anchorage  Police
               Department]   has  a  policy   in   domestic
               violence  cases that if they go there  on  a
               call,   theyre  going  to  arrest  somebody,

     Prosecutor: Yes, Your Honor.

     Court:    So lets say they arrest a woman for slapping
               her husband.  They take her to jail and shes
               prohibited from returning to the  home  that
               she  lived  in  for maybe  a  quarter  of  a
               century, and she has school-aged children to
               raise,  and she is a home provider, and  she
               prepares  all the meals for the kids  ...  .
               And  the husband, who works full-time on the
               North  Slope,  or maybe [like  Williams]  he
               works  in  the  valley in the Department  of
               Corrections, isnt there to do that.   Theres
               been a total disruption to the home.
          As  the  above examples illustrate, under Alaskas  far-
reaching  definition  of  domestic violence,  probable  cause  to
believe a person has committed a domestic violence offense cannot
necessarily  be equated with probable cause to believe  that  the
person poses an ongoing risk to the alleged victims safety.
          Even   in  Williamss  case,  which  involves  the  more
typical  assault of a husband against a wife, it is  possible  to
see  how  AS  12.30.027(b) might infringe  an  important  liberty
interest without advancing any significant governmental interest.
Several weeks after the incident in this case, Williams asked the
court  to  modify  his release conditions to allow  him  to  have
contact  with  his wife so they could discuss their daughter  and
          other household matters.  Williamss wife supported that request,
and  the State did not oppose it.  The State told the court  that
in  looking  at Mr. Williamss record and the facts in this  case,
the  State  [is]  confident or at least hopeful that  it  was  an
isolated  incident.   Several months later  again with his  wifes
support, and with no opposition from the State  Williams received
permission  to  stay  in  the family  home  while  his  wife  was
overseas.  Shortly before Christmas, some eight months after  the
incident, Williams asked for permission to stay at home with  the
family for the holidays.   Williamss wife told the court that she
and  Williams had been in regular contact for months,  that  they
had  traveled together on family vacations, that they  wished  to
spend  the  holiday at home as a family, and that it would  be  a
financial hardship to travel elsewhere.   Judge Murphy denied the
request, noting that the statute gave him no choice:
          ...  I  realize it works a hardship and,  in
          some situations, I suspect that not having a
          family  mend itself may cause more  problems
          and  exacerbate the whole issue that  caused
          the domestic violence in the first place.  I
          understand all that.  Ive been dealing  with
          domestic violence in this state for almost a
          third  of  a century now. ... I cant  change
          the  law  though ... at this  date.   So  he
          cannot go back to the residence.
Ultimately, Judge Murphy found that the release condition barring
Williams from returning to the residence was appropriate in  this
case.   But given the unrestricted contact Williams and his  wife
had   outside  the  home,  it  is  at  least  arguable  that  the
prohibition on Williams returning to the residence was no  longer
serving its intended purpose.
          Moreover,  it  appears  that other  jurisdictions  have
found  less  restrictive  alternatives adequate  to  protect  the
victims  of  domestic violence.  The Model Code on  Domestic  and
Family  Violence,  which served as a blueprint for  Alaskas  1996
Domestic  Violence Prevention and Victim Protection Act (the  law
that  authorized  the  residence restriction  at  issue  in  this
case),38 contains no blanket prohibition on a person charged with
domestic  violence  returning to the  residence  of  the  alleged
victim.39   Rather,  the Model Code gives  courts  discretion  to
remove the accused from the home if the court finds that doing so
is  necessary  to  protect the alleged victim.40   Apparently  no
other state follows Alaskas rule.  At least two states restrict a
person  charged  with  domestic violence from  returning  to  the
alleged  victims  residence  for one  to  three  days  after  the
incident  but the victim can waive that requirement.41
          In  its  amicus brief, the Alaska Network  on  Domestic
Violence  and  Sexual  Assault points out that  Alaskas  domestic
violence  law removes discretion in a number of other ways.   For
instance,  the  police now must arrest an alleged perpetrator  if
they  have  probable cause to believe domestic violence  occurred
within  the preceding twelve hours.42  The arrestee must be  held
in  custody  until arraignment.43  And although the arrestee  has
the right to a telephone call after arrest, he or she cannot call
the victim.44
          But   these   measures   are  aimed   at   defusing   a
potentially violent situation until a judicial officer can assess
the  danger  to  the  alleged victim and,  if  necessary,  impose
appropriate   conditions  of  release.    The   non-discretionary
residence  restriction potentially burdens  an  accuseds  liberty
interest  for a much longer period (Williams has apparently  been
barred  from  the  family residence since April  2005),  with  no
possibility for judicial review.  As Williams observes, a ban  on
returning to the residence while on pre-trial release may be more
burdensome  than  the  sentence the person  will  receive  if  he
ultimately  is convicted of domestic  violence  a situation  that
might  encourage a defendant to give up the right  to  trial  and
enter a plea.
          In  Dawson, we recognized that restrictions on  marital
association  might  be  justified in domestic  violence  cases.45
But  we  also  recognized  that  those  restrictions  should   be
carefully considered:
          In  certain  types of cases, such  as  cases
          involving   domestic   violence,    limiting
          marital   association   would   plainly   be
          defensible.   In  any type of  case,  it  is
          conceivable that such a limitation might  be
          justified   by  case-specific  circumstances
          demonstrating actual necessity and the  lack
          of less restrictive alternatives.  In such a
          case,    however,   to   avoid   unnecessary
          intrusion on marital privacy, it would  seem
          appropriate  to tailor a close  fit  between
          the  scope of the order restricting  marital
          association  and the specific needs  of  the
          case at hand.[46]
            We  struck  down  the probation condition  in  Dawson
which forbade the defendant from any contact with his wife unless
the   contact  was  approved  by  his  probation  officer   after
concluding that the court had made no apparent effort  to  tailor
the  scope  of  the  condition to the specific  circumstances  of
Dawsons  case.47  Similarly here, the State has  failed  to  show
that  the less restrictive alternatives adopted by the Model Code
and other jurisdictions  for instance, conditioning the residence
restriction on a judicial finding, following a hearing, that  the
person  charged with domestic violence poses an ongoing  risk  to
the  alleged  victim   would fail to accomplish  the  governments
interests.   The legislation is thus impermissibly overinclusive:
it  prohibits all persons charged with crimes that meet the broad
definition  of  domestic violence from returning to  the  victims
residence,  even  persons  who  pose  no  appreciable   risk   of
assaulting the victim or tampering with the victims testimony.48
          In  urging  a  contrary conclusion, the  Amicus  Curiae
points  to our decision in Stiegele v. State.49  In Stiegele,  we
rejected  an equal protection challenge to a statute that  denied
bail  to  all  persons  convicted of  class  A  and  unclassified
felonies.50   We reasoned that the legislature could legitimately
conclude  that the average unclassified or class A  offender  was
more dangerous, and more of a flight risk, than the average class
B or class C offender.51
          Stiegele  is distinguishable from this case.   All  the
individuals  denied bail under the statute at issue  in  Stiegele
had  been  convicted of serious felonies.   Individuals who  have
been  convicted of a crime have no constitutional right to bail52
and  a  diminished liberty interest.53  The statute was therefore
not subject to heightened scrutiny, and the fact that it may have
reached some individuals who were not a danger or a flight  risk,
and  missed  some  who were, did not make it  fatally  under-  or
          By  contrast,  individuals charged with,  but  not  yet
convicted  of,  a  crime involving domestic  violence  retain  an
important  liberty  interest  in  choosing  their  family  living
arrangements.   Moreover,  far  more  disparate  individuals  are
burdened by this statute: the class includes individuals who have
committed offenses ranging from murder to criminal mischief,  and
presumably some individuals who are innocent of any crime.  Given
the  reach  of  the  statute, and the  importance  of  the  right
infringed, even if the State could show (which it has  not)  that
the  average  person  charged  with domestic  violence  poses  an
ongoing  danger to the alleged victim, the statute  would  likely
still  burden enough people who are not dangerous to violate  our
          We  recognize that we have a duty to construe a statute
to  avoid unconstitutionality if we can reasonably do so.55   But
the  separation  of powers doctrine  prohibits us  from  enacting
legislation or redrafting patently defective statutes.56
          On  its  face, AS 12.30.027(b) eliminates all  judicial
discretion  to  permit a person charged with  a  crime  involving
domestic  violence  to  return to the residence  of  the  alleged
victim.   But  as  we  have pointed out, the  category  of  crime
involving  domestic  violence  includes  many  crimes  that  have
nothing  to  do with physical assault committed by  one  domestic
partner  upon  another.   That is, this  category  includes  many
crimes  where the State has no apparent interest in  barring  the
defendant from returning to the home of the victim.  Although  we
could  speculate that the legislature was unaware of the furthest
reaches  of  this  provision, and that it  meant  to  reach  only
certain  types of crimes (for instance, threats or assaults),  or
certain  types of individuals (for instance, domestic  partners),
construing the statute to conform with our speculations would  be
stepping  over  the  line  of  interpretation  and  engaging   in
          Moreover,  even  if we were to limit the  reach  of  AS
12.30.027(b) to instances of assault by one domestic partner upon
another,  this  narrower category would still include  situations
where  the  States  interest  in preventing  the  defendant  from
returning  home  would be questionable at best  as  Judge  Murphy
pointed out in his example.
          We  conclude that there is no obvious way to narrow the
definition  of   crime  involving domestic violence  so  that  it
applies  only  to  cases where (1) the State has  a  demonstrable
interest  in barring the defendant from returning to the  alleged
victims  home  and (2) the States interest clearly outweighs  the
substantial  personal  liberty interest in choosing  ones  living
arrangements.  Accordingly, we cannot use our power  of  judicial
          construction to re-write the statute.
          We  therefore hold that AS 12.30.027(b), as applied  to
individuals on pre-trial release, violates article I,  section  1
of the Alaska Constitution.  (We express no opinion as to whether
this statute is constitutional as applied to individuals on post-
conviction release.58)  Having invalidated subsection (b)  as  it
applies  to Williams, we find it unnecessary to address Williamss
other challenges to the statute.59
          The   State   urges   us  to  avoid   ruling   on   the
constitutionality  of AS 12.30.027(b) because Judge  Murphy  held
that the residence restriction was, in any event, appropriate  in
Williamss  case.   But from our review of the record  it  is  not
apparent  that  Judge Murphy considered whether  the  governments
interests  could  be served by the less restrictive  alternatives
authorized by the Alaska Statutes.60
          Moreover,  we do not view this as a close question  and
see  no  reason to defer a ruling.  The issue has been thoroughly
briefed  by the parties and by Amicus Curiae.  And, as the  State
has  previously  emphasized, bail release of those  charged  with
domestic violence is a recurring issue that tends to evade review
because  defendants  have  their cases  resolved,  or  violate  a
condition  of  release, before we have a chance to  rule  on  the
issue.61   We think it reasonably likely that, in the absence  of
guidance  from  our court, judges engaged in the daily  press  of
bail  hearings  will  enforce  the residence  restriction  as  it
plainly reads, even if they harbor serious reservations about its
constitutionality or appropriateness in a given case.

          For  the foregoing reasons, we REVERSE the decision  of
the  district  court and REMAND the case for a  hearing  and  new
findings consistent with this opinion.

     1 AS 11.41.230(a)(1).

2  AS  18.66.100(c)  lists the conditions  that  may  be  imposed
in a domestic violence protective order.

     3  In State v. Roberts, 999 P.2d 151 (Alaska App. 2000),  we
rejected the claim that AS 12.30.027(b) only restricted the court
from  releasing a defendant to the residence of a petitioner  who
had obtained a protective order against the defendant. Id. at 154-

4 U.S. Const. amend. XIV,  1; Alaska Const. art. I,  1.

     5  See  generally Laurence H. Tribe, American Constitutional
Law  16-4, at 1450 (2d ed. 1988).

6  Alaska  Pacific  Assur. Co. v. Brown,  687  P.2d  264,  269-70
(Alaska 1984); see also State v. Erickson, 574 P.2d 1, 12 (Alaska

     7 894 P.2d 672 (Alaska App. 1995).

     8  Id.  at 680 (citing Thomas v. State, 710 P.2d 1017,  1019
(Alaska App. 1985)).

     9 431 U.S. 494, 97 S. Ct. 1932, 52 L. Ed. 2d 531 (1977).

     10   Id. at 495-96, 97 S. Ct. at 1934.

     11   Id. at 496-97, 97 S. Ct. at 1934.

     12   Id. at 497, 97 S. Ct. at 1934.

13    Id.  at  499,  97  S.  Ct.  at 1935-36  (quoting  Cleveland
Board  of Education v. LaFleur, 414 U.S. 632, 639-640, 94 S.  Ct.
791, 796, 39 L. Ed. 2d 52 (1974)).

     14    Cf.  Martin  v. State, 517 P.2d 1389, 1396-97  (Alaska
1974)  (recognizing that the legislature may not infringe  on  an
accuseds constitutional right of bail); Dawson v. State, 894 P.2d
672, 680 (Alaska App. 1995) (recognizing that probationers retain
a constitutional right to a marital association).

     15    See  also  Treacy v. Anchorage, 91  P.3d  252,  264-66
(Alaska  2004) (ruling that juvenile curfew ordinance  implicated
fundamental rights to move about and to privacy).

     16   See Erickson, 574 P.2d at 12.

     17   See United States v. Salerno, 481 U.S. 739, 749, 107 S.
Ct. 2095, 2103, 95 L. Ed. 2d 697 (1987) (The governments interest
in   preventing  crime  by  arrestees  is  both  legitimate   and

     18    Cf. In the Matter of K.L.J., 813 P.2d 276, 280 (Alaska
1991)  (quoting In re Jay [R.], 150 Cal. App. 3d  251,  197  Cal.
Rptr.  672, 681 (1983)) (The state has no legitimate interest  in
terminating a parents relationship with his child if he  has  not
willfully neglected or abandoned that child.).

     19    See Matanuska-Susitna Borough Sch. Dist. v. State, 931
P.2d  391, 396-97 (Alaska 1997); Alaska Pacific Assur.  Co.,  687
P.2d at 269-70.

     20    See  Covington v. State, 747 P.2d 550, 553 n.5 (Alaska
App.  1987);  Wood v. State, 712 P.2d 420, 428 n.7  (Alaska  App.

     21    Jurek v. Texas, 428 U.S. 262, 275-76, 96 S. Ct.  2950,
2958, 49 L. Ed. 2d 929 (1976).

     22    State v. Wassillie, 606 P.2d 1279, 1289 (Alaska  1980)
(Rabinowitz, J., dissenting) (quoting United States  v.  Stanley,
469 F.2d 576, 581 (D.C. Cir. 1972) (footnotes omitted)).

23   AS 12.30.027(a); AS 18.66.100(c)(3).

     24   AS 12.30.020(b)(1).

     25   AS 12.30.020(b)(2).

     26   AS 12.30.020(b)(3).

     27   AS 12.30.027(a); AS 18.66.100(c)(1).

     28   AS 12.30.027(a); AS 18.66.100(c)(2).

     29   AS 12.30.027(a); AS 18.66.100(c)(4), (5).

     30   AS 12.30.027(a); AS 18.66.100(c)(7).

     31   AS 12.30.020(b)(7); AS 12.30.027(a).

     32    Bingaman  v. State, 76 P.3d 398, 407-08  (Alaska  App.
2003); Carpentino v. State, 42 P.3d 1137, 1141 (Alaska App. 2002)
(opinion on rehearing).

     33   AS 11.41.520; AS 18.66.990(3).

     34   AS 18.66.990(3).

     35   AS 18.66.990(5)(B)-(F).

36      See    AS    11.41.250   (reckless   endangerment);    AS
18.66.990(3)(A)  (defining domestic violence to include  a  crime
against  the person under AS 11.41); AS 18.66.990(5)(E) (defining
household  member to include adults or minors who are related  to
each other up to the fourth degree of consanguinity).

     37    See  AS  11.46.430 (criminally negligent burning);  AS
18.66.990(3)(D) (defining domestic violence to include criminally
negligent burning); AS 18.66.990(5)(E) (defining household member
to  include adults or minors who are related to each other up  to
the fourth degree of consanguinity).

     38     See  Sponsor  Statement  and  Summary  of  H.B.  314,
introduced  by  Rep.  Sean R. Parnell (House Judiciary  Committee

     39    Model  Code on Domestic and Family Violence, published
by  the  National  Council of Juvenile and  Family  Court  Judges

     40   Id.  208(2)(c).

     41    See Utah Code Ann.  77-36-2.5 (providing that a person
arrested for domestic violence may not be released on bail  prior
to the close of the next court day following the arrest unless he
is  ordered  not  to  contact the victim  or  enter  the  victims
residence  until the expiration of that time, but permitting  the
victim  to  waive that requirement); Wis. Stat.  968.075(5)(a)(1)
(requiring a person arrested for domestic violence to  avoid  the
residence of the alleged victim during the 72 hours after arrest,
but permitting the victim to waive that requirement).

     42   AS 12.25.030(b); AS 18.65.530.

     43   AS 12.30.027(e).

     44   AS 11.56.755; AS 12.25.150(b).

     45   Dawson, 894 P.2d at 680.

     46   Id. at 680-81.

     47   Id. at 681.

     48    Cf. Patrick v. Lynden Transport, Inc., 765 P.2d  1375,
1379 (Alaska 1988).

     49   685 P.2d 1255 (Alaska App. 1984).

     50   Id. at 1257-58.

     51   Id.

52    Hosier  v.  State,  976 P.2d 869, 871 (Alaska  App.  1999);
Wassillie, 606 P.2d at 1283.

     53   Monroe v. State, 847 P.2d 84, 89-90 (Alaska App. 1993);
see  also McMillan v. Pennsylvania, 477 U.S. 79, 84, 106  S.  Ct.
2411,  2415, 91 L. Ed. 2d 67 (1986) (noting that convicted felons
liberty   interest  is  substantially  diminished  by  a   guilty

     54   Stiegele, 685 P.2d at 1258.

     55    Bonjour v. Bonjour, 592 P.2d 1233, 1237 (Alaska 1979);
Larson  v.  State,  564 P.2d 365, 372 (Alaska 1977);  Hoffman  v.
State, 404 P.2d 644, 646 (Alaska 1965).

     56    Bonjour,  592 P.2d at 1238 (citing State v.  Campbell,
536 P.2d 105, 110-11 (Alaska 1975), overruled on other grounds by
Kimoktoak  v.  State, 584 P.2d 25 (Alaska 1978));  Gottschalk  v.
State, 575 P.2d 289, 296 (Alaska 1978)).

     57    Gottschalk,  575  P.2d  at  296;  see  also  Myers  v.
Anchorage, 132 P.3d 1176, 1186 (Alaska App. 2006) (invalidating a
municipal drug paraphernalia ordinance because any re-write would
be  so  drastic that we believe it falls outside a courts  proper
sphere of action).

     58     See  AS  01.10.030  (providing  for  severability  of
unconstitutional provisions).

     59    We  also decline to address Williamss claim  that  the
court  erred  in  relying  on hearsay evidence  in  imposing  the
residence  restriction, finding that claim moot.   See  State  v.
Roberts,  999 P.2d at 153 (Generally courts will not  resolve  an
issue when it is moot.).

     60   See Dawson, 894 P.2d at 680-81.

     61   See Roberts, 999 P.2d at 153.

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