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

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


               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@  

                                IN THE COURT OF APPEALS OF THE STATE OF ALASKA                                                               



                                                                                                                 Court of Appeals No. A-11121  


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


                                                                                                                                O   P   I   N   I   O   N  


                                                           Appellee.                                              No.  2472  -  August  28,  2015  


                                 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

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                                                                                    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                                                                                                                                     


                                         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                                                                                                                                                     


 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  



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



                    Johansen , 491 P.2d at 763.  


                                                                                                                           - 4 -                                                                                                                      2472

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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  


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  



                      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  


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.  



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

(Alaska 1976).                            



                   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,         


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").  



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


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


technical meaning of "ex parte").  


                                                                             - 7 -                                                                        2472


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                      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.                                                                                                                                                


 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  



                     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").                                                                                                                        


                     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.                                                                                                                                                                              


                                                                       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  


                                                                       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                                                                                                                                                                                                                                   


                                                  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  



                         Continental Insurance                                                            , 548 P.2d at 408.                                              



                         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".                                                                                  


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  



              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                                                                        


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  



                       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).                                                                                                                                                                



                       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                                                                


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).)  



            Former AS 09.50.020(a).                       


            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  




                                                                         -  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                                


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.  



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




               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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