NOTICE: This opinion is subject to formal
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
BILAL MUSTAFOSKI, )
) Court of Appeals No. A-4419
Appellant, ) Trial Court No. 4BE-91-283 Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1332 - January 28, 1994]
________________________________)
Appeal from the Superior Court, Fourth Judi
cial District, Bethel, Dale O. Curda, Mary E.
Greene, and James A. Hanson, Judges.
Appearances: Rex Lamont Butler, Anchorage,
for Appellant. Eric A. Johnson, Assistant
Attorney General, Office of Special Prosecu
tions and Appeals, Anchorage, and Charles E.
Cole, Attorney General, Juneau, for Appellee.
Before: Bryner, Chief Judge, and Coats and
Mannheimer, Judges.
MANNHEIMER, Judge.
Bilal Mustafoski appeals his convictions for third-
degree misconduct involving a controlled substance (sale of
cocaine), AS 11.71.030(a)(1), and third-degree misconduct
involving weapons (carrying a concealed firearm), AS
11.61.220(a)(1). We uphold the validity of the search warrant
issued for Mustafoski's residence, and we uphold the validity of
the indictment against Mustafoski (as it concerns the three
counts he was convicted of), but we reverse Mustafoski's
convictions because his trial judge, a former state prosecutor,
should have recused himself.
Validity of the Search Warrant for Mustafoski's
Residence
Before his trial, Mustafoski sought suppression of all
evidence obtained by the police when they entered his house
pursuant to a search warrant. Superior Court Judge James A.
Hanson denied Mustafoski's motion. On appeal, Mustafoski renews
his attack on the search warrant. The State supplied the
following information to the superior court when it applied for
the search warrant:
In early 1991, the Bethel Police Department was investi
gating Mustafoski and other suspected drug dealers. On January
20, 1991, a man who later became known as police agent "Alpha 14"
contacted Bethel Police Sergeant John Achee and told him that
Mustafoski had agreed to sell him cocaine for $150 per gram.
Alpha 14 agreed to work with the police in exchange for the
return of his chauffeur's license, which he had lost after being
arrested for fourth-degree assault. Alpha 14 had no other
criminal record, and he had never acted as an agent before.
On January 21, Sergeant Achee strip-searched Alpha 14,
gave him $500 in recorded buy money, and dropped him off near
Mustafoski's residence on Akakeek Street in Bethel. When Alpha
14 came out of the residence, he gave Sergeant Achee two 1-gram
bags of a white, powdery substance that later field-tested
positive for cocaine. Alpha 14 told Achee that he had bought the
cocaine from Mustafoski's live-in girlfriend, Lisa Ayers, for
$300. Alpha 14 returned the remaining $200 of the buy money, and
Sergeant Achee again strip-searched him to make sure he had no
other drugs or currency.
A few days later, Achee obtained a Glass warrant (see
State v. Glass, 583 P.2d 872 (Alaska 1978)) to monitor another
drug purchase between Alpha 14, Ayers, and Mustafoski on Akakeek
Street. However, when Alpha 14 came to the residence, Ayers and
Mustafoski refused to sell him drugs, apparently because they
suspected that Alpha 14 was a police agent. For his services,
Alpha 14 received his chauffeur's license but no other
compensation. Achee later testified that Alpha 14 had never
deviated from his instructions and that Alpha 14 had been, to
Achee's knowledge, a reliable informant.
Approximately two months later, on March 24, 1991,
Bethel Police Sergeant John Bilyeu pursued the investigation
using a Bethel cab driver named Duane Anaruk who was on salary
with the department. Bilyeu gave Anaruk recorded buy money and
instructed him to try to purchase drugs. In the meantime, during
the week of April 1, 1991, Alaska State Trooper Greg Close (who
was Mustafoski's next-door neighbor) told Sergeant Achee that he
had seen many vehicles coming to Mustafoski's residence on
Akakeek Street; people were going in and out of the house during
late hours of the night. Based on his training and experience,
Achee believed that this pattern of traffic and visitors corrobo
rated police suspicions that Mustafoski was engaged in sales of
drugs or liquor.
At about 5:00 p.m. on April 9, 1991, Officer Short
again contacted Anaruk about drug purchases. Anaruk reported
that Mustafoski had just told him he had received a shipment of
cocaine and was ready to sell. Short met with Anaruk on April
10, conducted a pre-buy interview, searched Anaruk and his cab
for contraband, and then gave Anaruk $150 in recorded funds.
While Short was conducting the pre-buy interview, Anaruk's cab
company received a call from Mustafoski, who asked Anaruk to meet
him at the Tundra Center. Short instructed Anaruk to tell
Mustafoski that he would be right there.
With Short hidden inside the cab's trunk, Anaruk drove
to the Tundra Center. At the Tundra Center, Mustafoski got in
the cab and had Anaruk drive to Kastriotti's Restaurant. At the
restaurant, Mustafoski got out for a few minutes, then got back
in and had Anaruk drive to a residence on Akakeek Street. There,
Mustafoski got out, knocked on the door, and spoke with a woman
who came to the door. A few minutes later, Anaruk saw Mustafoski
come out of the house carrying a small leather overnight bag.
When Mustafoski got back in the cab, Anaruk saw that the bag
contained a semi-automatic pistol and a revolver. Mustafoski
began loading these guns. As he did so, Mustafoski told Anaruk
that if he ever "narc'd" on him or turned him in, he would shoot
him.
The two men drove to the Assembly of God parking lot on
Sixth Avenue. Mustafoski got out of the cab and donned the semi-
automatic pistol in a shoulder holster. After Mustafoski got
back in the cab, they drove down Sixth Avenue and parked in front
of a residence. From his hiding place in the trunk, Short heard
Mustafoski get out of the cab and tell Anaruk to wait there five
minutes for him. A few minutes later, Mustafoski called Anaruk
on the cab's radio and told Anaruk he could leave - that
Mustafoski would call for a cab in five or ten minutes. Anaruk
then drove away.
When Officer Short climbed out of the trunk, Anaruk
gave him a plastic bag containing one gram of a white, powdery
substance that field-tested positive for cocaine. Anaruk told
Short that Mustafoski had sold him the cocaine while they were
inside the cab. Anaruk reported that he had asked Mustafoski for
1.5 grams, but Mustafoski had only one gram. However, Mustafoski
said that he could get another gram, which he agreed to sell for
$80.
When the radio call from Mustafoski came in, Short got
back in the trunk and Anaruk drove to Sixth Avenue. When Anaruk
honked the horn, he received no response, so he got out and
walked toward the residence. Shortly afterwards, Anaruk returned
to the cab with Mustafoski, and they drove to Kastriotti's
Restaurant. When they arrived, Mustafoski got out and walked
toward the restaurant. Anaruk then left.
Later, Anaruk gave Short another gram of white, powdery
substance, which field-tested positive for cocaine. Anaruk told
Short that Mustafoski had sold him this cocaine for $100, not the
$80 Mustafoski had first promised.
Following his clandestine ride with Anaruk, Short and
other Bethel police officers contacted the District Attorney's
Office to prepare an application for a search warrant for various
residences, among them Mustafoski's. Later, armed with the
warrant, the police searched Mustafoski's house and discovered a
small electronic scale, a 400-channel radio scanner, a large
number of plastic baggies, and 22 grams of lidocaine, a cutting
agent for cocaine.
On appeal, Mustafoski contends that the search warrant
for his residence must be invalidated for three reasons. First,
Mustafoski argues, the State failed to demonstrate the
trustworthiness of the information supplied by agent Alpha 14 and
by Duane Anaruk.
When a search warrant is based on the
hearsay statement of a confidential
informant, the [search warrant application]
must establish the informant's basis of knowl
edge and veracity. To establish the informan
t's basis of knowledge, the information must
be based on the informant's personal observa
tions, not his suspicions or beliefs. ...
Additionally, the [government] must
inform the magistrate ... of some of the
underlying circumstances [supporting the
conclusion] that the informant was credible
or that his information was reliable. An
informant's veracity may be established by
demonstrating his past reliability, or by
independent police corroboration of detailed
facts in the informant's story. The personal
identity and involvement of the informant may
also establish his veracity. When
information is provided by a citizen informer
rather than an informant from the criminal
milieu, there is less need to establish a
citizen informer's credibility. It is
sufficient that the police verify some of the
details of the information provided by a
citizen informer.
State v. Jones, 706 P.2d 317, 324-25 (Alaska 1985) (citations
omitted).
Agent Alpha 14 told police that Mustafoski had offered
to sell him cocaine. Later, under police supervision, Alpha 14
went to Mustafoski's residence and purchased cocaine from
Mustafoski's girlfriend, Lisa Ayers. Mustafoski argues that
Alpha 14 was a convicted criminal who was motivated by a promise
of official concession (the return of his chauffeur's license),
and that therefore all information obtained from him must be
ignored when determining whether the search warrant was supported
by probable cause.
Mustafoski's conclusion does not follow from his
premise. While Mustafoski points out valid reasons to distrust
this anonymous informant, the State's search warrant application
provided reason for the magistrate to credit his information - in
particular, the controlled purchase of cocaine. Mustafoski
argues that this purchase was not truly "controlled" because
Alpha 14 was out of the supervising police officer's view when
the cocaine was sold. However, a drug purchase does not lose its
"controlled" character simply because the police agent leaves the
supervising officer's sight to enter a house to make the
purchase. See State v. Johnson, 594 A.2d 933, 936-37 (Conn.
1991); State v. Sherlock, 768 P.2d 1290, 1293 (Haw. 1989).
Moreover, the testimony of Officer Short and, through him, the
information obtained from Duane Anaruk, corroborate Alpha 14's
assertions that Mustafoski was a cocaine seller and that cocaine
was available for sale at Mustafoski's residence.
Mustafoski also challenges Duane Anaruk's credibility.
In the superior court, Mustafoski asserted "upon information and
belief" that Anaruk "is known in the community of Bethel to be an
abuser and supplier of controlled substances." The superior
court was not obliged to invalidate a search warrant based on
this sort of unattributed and non-specific allegation.
Mustafoski also asserted, again on "information and belief",
that, shortly before Anaruk participated in the investigation of
Mustafoski, Officer Short had made a traffic stop of Anaruk's
taxi "at a time when Mr. Anaruk was in the process of ingesting
marijuana." This more specific allegation raised a possible
reason to distrust Anaruk's information (that he might wish to
incriminate Mustafoski to escape justice himself). However,
Mustafoski submitted no affidavit to back up his assertion, and
the only sworn testimony on this point was given at Mustafoski's
trial: Short testified that he had no knowledge, either
personally or through the police department, of any drug use on
Anaruk's part, and he specifically denied making a traffic stop
of Anaruk's cab when Anaruk was using marijuana. On this record,
the superior court could properly find that Mustafoski had failed
to substantiate his asserted reason for distrusting Anaruk's
account of his dealings with Mustafoski. Moreover, Officer Short
was riding in Anaruk's cab during much of the interaction with
Mustafoski, and he personally corroborated many facets of
Anaruk's account.
Mustafoski's next attack on the search warrant is that,
even assuming the State established probable cause to believe
that Mustafoski was selling cocaine, the State failed to
establish sufficient reason to believe that cocaine would be
found in Mustafoski's residence. However, agent Alpha 14
purchased cocaine from Mustafoski's girlfriend at that house in
January, 1991 (less than three months before the search warrant
was issued). Just two weeks before the search warrant was
issued, Trooper Greg Close, Mustafoski's next-door neighbor,
observed many vehicles coming to Mustafoski's residence and
people going in and out of the house during late hours of the
night. During this same time period, Mustafoski told Duane
Anaruk that he had received a shipment of cocaine and was ready
to sell. Anaruk in fact purchased cocaine from Mustafoski the
day before the search warrant was issued.
This court has repeatedly stated that a magistrate can
reasonably infer that a drug dealer will keep drugs or other
evidence of drug sales at his or her residence. Van Buren v.
State, 823 P.2d 1258, 1263 (Alaska App. 1992); State v. Conway,
711 P.2d 555, 557 & n.1 (Alaska App. 1985). Even though the
State had no direct evidence of a drug sale occurring at
Mustafoski's house since January, the State presented evidence
that Mustafoski was engaged in on-going sales of cocaine up to
the time the search warrant was issued. Given this evidence, the
magistrate could reasonably conclude that evidence of drug sales
would be found in Mustafoski's home.
Finally, Mustafoski argues that the magistrate should
not have authorized the police to conduct a nighttime search of
Mustafoski's residence. Alaska Criminal Rule 37(a)(3)(iv) states
that a judge issuing a search warrant "shall direct that it be
served between 7:00 a.m. and 10:00 p.m., unless ... [,] for
reasonable cause shown, [the judge] authorizes its execution at
other than this time". The search warrant application was made
at 9:20 p.m.. The State presented evidence that Mustafoski had
sold cocaine twice, just hours before the application. Bethel
Police Sergeant Bilyeu testified that he planned to conduct one
more controlled cocaine buy and then arrest Mustafoski that
night. If news of Mustafoski's arrest spread to his confeder
ates, there was a good chance that evidence would be removed or
destroyed before morning. When the magistrate issued the
warrant, he specifically agreed with the district attorney's
argument that the "expected ... buy and [the] arrest of Mr.
Mustafoski tonight would more or less tip the hand of the investi
gators and [would] require the immediate search of ... his
residence." Under these facts, the magistrate did not abuse his
discretion when he authorized nighttime service of the warrant.
For these reasons, we uphold the superior court's
denial of Mustafoski's suppression motion.
Validity of the Indictment
A Bethel grand jury indicted Mustafoski on five
criminal charges. Counts 1 and 2 charged Mustafoski with selling
a schedule IIA controlled substance in violation of AS
11.71.030(a)(1); Count 3 charged him with third-degree assault
in violation of AS 11.41.220(a)(1); Count 4 charged him with
coercion in violation of AS 11.41.530(a)(1); and Count 5 charged
him with carrying a concealed firearm in violation of
AS 11.61.220(a)(1). Before trial, Mustafoski asked the superior
court to dismiss the indictment. The superior court denied
Mustafoski's motion.1 Mustafoski renews his arguments on appeal.
First, Mustafoski contends that the indictment should
have been thrown out in its entirety because two grand jurors had
ties to law enforcement. One of the grand jurors was the mayor
of Bethel, an official with supervisory authority over the police
department. Another grand juror was a pilot who worked under
contract for the Alaska State Troopers. However, these two grand
jurors' ties to law enforcement agencies did not disqualify them
from serving on the grand jury.
This court has expressly declined to adopt a rule
barring police officers from serving on grand juries. Anderson
v. State, 749 P.2d 369, 372 (Alaska App. 1988). If police
officers are not automatically disqualified, it necessarily
follows that there should be no automatic disqualification for
the two grand jurors at issue here - persons with only attenuated
ties to law enforcement. We do not believe that the two grand
jurors' employment relationship to police agencies automatically
proves that their grand jury service was tainted.
In addition, before denying Mustafoski's motion, the
superior court examined the grand jury concurrence sheets. The
concurrence sheets showed that the grand jurors had voted unani
mously to indict Mustafoski on four counts and had voted 17 to 1
to indict Mustafoski on the remaining count. Thus, even if the
two grand jurors had been disqualified because of their
connection to law enforcement, the grand jury still would have
voted in favor of Mustafoski's indictment. Compare Alaska
Criminal Rule 6(g) (an indictment remains valid, even though
unqualified grand jurors sat on the panel, so long as a majority
of the qualified grand jurors voted for the indictment).
Mustafoski counters that, even though the grand jury's
vote heavily favored indictment, the grand jury deliberates as a
group, and the grand jury's deliberations may have been tainted
by the contributions of the two challenged grand jurors.
However, Mustafoski did not show (or offer to prove) that either
of the challenged grand jurors was in fact biased (either against
Mustafoski or in favor of the government), or that either of the
grand jurors exercised undue influence over the rest of the
panel. As this court said in Patterson v. State, 747 P.2d 535
(Alaska App. 1987),
[The defendant's] argument mistakenly equates
the bias of one grand juror [with] bias on
the part of the entire grand jury panel. In
the absence of particularized circumstances
establishing the likelihood of a significant
influence on the grand jury as a whole, we
see no legitimate basis for imputing the bias
of one grand juror to others. Because the
grand jury voted unanimously to indict ... ,
and because [the defendant] has, at most,
established bias on the part of only one
member of the panel, no deprivation of [the
defendant's] right to a fair and unbiased
grand jury has been established.
Patterson, 747 P.2d at 537. See also Anderson, 749 P.2d at 372
(holding that a defendant must show prejudice). We therefore
uphold the superior court's refusal to dismiss Mustafoski's
indictment on account of the purported bias of the two challenged
grand jurors.
Mustafoski's second attack on the indictment concerns
Counts 1 and 2, which charged Mustafoski with third-degree
misconduct involving a controlled substance. Mustafoski asserts
that these two counts are facially invalid because they fail to
specify either the controlled substance Mustafoski purportedly
sold or the person to whom he sold it. Both counts are phrased
identically:
That on or about the 10th day of April,
1991, at or near Bethel, in the Fourth Judi
cial District, State of Alaska, Bilal Musta
foski did unlawfully and knowingly deliver a
Schedule IIA controlled substance.
All of which is a class B felony
offense[,] being contrary to and in violation
of AS 11.71.030(a)(1) and against the peace
and dignity of the State of Alaska.
We agree with Mustafoski that the wording of these two
counts could have been more informative. However, Mustafoski has
not shown that he was prejudiced by the lack of detail in these
two counts. The grand jury record unambiguously reveals that the
two charged sales of controlled substances on April 10, 1991 were
the two sales of cocaine to Duane Anaruk. Mustafoski does not
claim that he was misled by the wording of the indictment or
surprised by the State's case at trial. This being so, the
vagueness of the wording of the indictment did not require
dismissal of the charges. See Lupro v. State, 603 P.2d 468, 472
(Alaska 1979); Azzarella v. State, 703 P.2d 1182, 1186 (Alaska
App. 1985).
Third, Mustafoski challenges the sufficiency of the
evidence to support Count 5, the allegation that Mustafoski
carried a concealed firearm. At grand jury, Anaruk testified
that Mustafoski brought an overnight bag containing two handguns
into Anaruk's taxi; during the ride, Mustafoski had Anaruk stop
in a church parking lot, where Mustafoski got out, put on a
shoulder holster, put one of the handguns in the shoulder
holster, and then got back in the taxi. Mustafoski points out
that Anaruk never explicitly stated that the pistol in the
shoulder holster was concealed beneath clothing. However, Anaruk
testified that Mustafoski was wearing a coat during the cab ride.
It is a fair inference, from Anaruk's testimony as a whole and
from the manner in which shoulder holsters are commonly worn,
that Mustafoski wore the shoulder holster underneath his coat,
thus concealing the pistol.
We additionally note that Count 5 charged a
misdemeanor. Even if the grand jury evidence had failed to
support this count, the State was authorized to charge Mustafoski
by information with carrying a concealed weapon. Thus,
Mustafoski would not have been prejudiced even if he had shown
that the grand jury evidence was insufficient to support this
count. See S.R.D. v. State, 820 P.2d 1088, 1097 (Alaska App.
1991).
Finally, Mustafoski challenges the sufficiency of the
evidence to support Count 3, the allegation of third-degree
assault. This count was based on Duane Anaruk's grand jury
testimony that, during their cab ride together, Mustafoski pulled
two handguns from an overnight bag and threatened to shoot Anaruk
if Anaruk ever "narc'd" on him. We need not decide whether the
grand jury evidence supported this charge because the question is
moot. The trial judge granted Mustafoski a judgement of
acquittal on the third-degree assault charge before the case was
submitted to the jury. Despite this acquittal, Mustafoski argues
that he was prejudiced by the inclusion of Count 3 among the
charges at trial because it allowed the State to introduce
evidence of Mustafoski's threatening conduct and his use of
handguns. This argument is likewise moot, because (as explained
in the next section of this opinion) we are reversing
Mustafoski's convictions.
Mustafoski's Motion to Disqualify Judge Curda
Superior Court Judge Dale O. Curda was assigned to
Mustafoski's case. Soon after he was charged, Mustafoski filed a
pre-trial motion arguing that Judge Curda should be disqualified
pursuant to AS 22.20.020(a)(6):
Disqualification of judicial officer for
cause. (a) A judicial officer may not act in
a matter in which
. . . .
(6) the judicial officer has represented
a person as attorney for the person against a
party, except the state or a municipality of
the state, in a matter within two years pre
ceding the assignment of the judicial officer
to the matter[.]
Mustafoski based his motion on the fact that Judge Curda, before
becoming a judge, had worked for the Department of Law as the
district attorney in Bethel and, in that capacity, had personally
prosecuted Mustafoski in connection with other matters within the
previous two years. Opposing Mustafoski's motion, the State
argued that the statute made an exception for attorneys who had
formerly represented the State of Alaska.
Judge Curda denied Mustafoski's motion. Pursuant to
AS 22.20.020(c), Judge Curda's decision was reviewed by Superior
Court Judge Mary E. Greene. At the hearing in front of Judge
Greene, Mustafoski and the State agreed that, within the previous
two years, Judge Curda (acting as the State's prosecutor) had
presented a case against Mustafoski to the Bethel grand jury.2
In addition, Mustafoski asserted that it was "conceivable" that
Judge Curda had acquired information about Mustafoski through his
work as a prosecutor, although Mustafoski's attorney admitted
that he did not know whether this was true, or what that informa
tion might be.
Judge Greene rejected Mustafoski's interpretation of
AS 22.20.020(a)(6); she ruled that this statute did not require
Judge Curda's disqualification. And, although Mustafoski had not
argued any other theory of disqualification, Judge Greene further
ruled that Judge Curda's participation in Mustafoski's present
case did not give rise to an inescapable appearance of impropri
ety; thus, Judge Green found, Judge Curda's participation did not
contravene AS 22.20.020(a)(9) as interpreted by this court in
Perotti v. State, 806 P.2d 325, 327-28 (Alaska App. 1991).3
A judge's refusal to recuse him- or herself is reviewed
under the abuse of discretion standard. Blake v. Gilbert, 702
P.2d 631, 640 (Alaska 1985); Perotti, 806 P.2d at 327. However,
to the extent that the decision of Mustafoski's case turns on the
proper interpretation of AS 22.20.020(a)(6), this court
independently determines the meaning of the statute. Ford v.
Anchorage, 813 P.2d 654, 655 n.2 (Alaska 1991).
The general rule at common law was that only a judge's
personal interest in the outcome of the lawsuit would require the
judge's disqualification; a judge could decide a lawsuit even
though the judge had participated as an attorney in an earlier
stage of the same lawsuit. See Hathorne v. State, 459 S.W.2d
826, 828 (Tex. Crim. App. 1970) (on rehrg). Virtually all states
and the federal government have changed this common-law rule;
these jurisdictions now require a judge's disqualification if he
or she has acted as a lawyer in the same lawsuit or controversy.
Hathorne, 459 S.W.2d at 828-29. See, for example, 28 U.S.C.
455 and Michigan Court Rule 2.003(B)(3).
However, the prevalent American rule of
disqualification is limited to instances in which the judge
participated as a lawyer in an earlier stage of the same case.
Under this majority rule, unless there is a specific showing of
bias, a judge is not disqualified merely because he or she worked
as a lawyer for or against a party in a previous, unrelated
matter. See State v. Neeley, 748 P.2d 1091, 1094 (Utah 1988);
see also Commonwealth v. Darush, 420 A.2d 1071, 1074 (Pa. Super.
1980) (citing authority for this proposition).
Thus, under the majority rule, a judge who formerly
served as a prosecutor is not disqualified from participating in
a defendant's case even though he or she personally prosecuted
the same defendant in a previous, unrelated case. People v.
Harris, 498 N.Y.S.2d 893, 894-95 (N.Y. App. 1986); see also State
v. Neeley, 748 P.2d at 1094; Commonwealth v. Darush, 459 A.2d
727, 730-32 (Pa. 1983) (holding that the judge's participation
does not create a reasonable appearance of partiality); Hathorne
v. State, 459 S.W.2d at 829. But see People v. Corelli, 343 N.Y.
S.2d 555 (N.Y. App. 1973) (holding that a judge who had formerly
secured an indictment against the defendant and who was aware of
his "background" should have reassigned the defendant's case to
another judge after the defendant chose to waive jury and consent
to a bench trial).
In AS 22.20.020(a), the Alaska legislature has enacted
a rule of judicial disqualification that is significantly broader
than the majority rule. The portion of the statute at issue
here, AS 22.20.020(a)(6), declares that a judge is disqualified
from a case if, within the previous two years, the judge has
acted as the attorney for "[any] person ... against [any] party
[to the current lawsuit], except the state or a municipality of
the state".
The syntax of subsection (a)(6) clearly suggests that
the limiting clause "except the state or a municipality of the
state" was intended to modify the word "party", not the word
"person". That is, based on its grammatical structure alone,
subsection (a)(6) appears to prohibit a judge from participating
in any case in which he or she, acting as an attorney for any
person, took legal action within the previous two years against
any of the parties to the current lawsuit except the State of
Alaska or a municipality of the state. (Moreover, as we will
explain, the policy behind subsection (a)(6) unambiguously
supports this construction of the statute.)
Thus, if the word "person" in subsection (a)(6)
includes political entities such as the State of Alaska, then
Judge Curda fits the statutory description: as a prosecutor, he
had represented the State of Alaska against Mustafoski within the
previous two years. The State argues, however, that the word
"person" does not include the State of Alaska.
The State admits that, for purposes of interpreting the
criminal code, the term "person" includes a governmental entity
such as the State of Alaska. AS 11.81.900(b)(40) provides:
In this title, unless otherwise
specified or unless the context requires
otherwise,
. . . .
(40) "person" means a natural person
and, when appropriate, an organization,
government, or governmental instrumen
tality[.]
However, the State points out that AS 11.81.900(b) itself
declares that its definitions apply only to Title 11, and the
question in this case is the proper construction of the judicial
disqualification statute found in Title 22.
The State argues that, because the definitions in Title
11 apply only to that title, and because Title 22 contains no
definition of "person" specific to that title, the word "person"
in AS 22.20.020(a)(6) must be interpreted in accordance with the
general definition found in AS 1.10.060:
In the laws of [this] state, unless the
context otherwise requires, ... (8) "person"
includes a corporation, company, partnership,
firm, association, organization, business
trust, or society, as well as a natural per
son.
As the State notes, the definition of "person" contained in
AS 1.10.060 omits any explicit reference to the state government
or its political subdivisions. The State contends that the
legislature's failure to mention the State of Alaska and its
political subdivisions in this definition of "person" evinces an
intent to exclude these political entities from coverage.
We disagree with the State's construction of AS
1.10.060. When AS 1.10.060(8) defines "person", it declares that
this term "includes" corporations, companies, partnerships,
associations, etc., as well as natural persons. The legislature
uses the word "includes" in a very specific way. "When the
word[] _includes› ... [is] used in a law, [it] shall be construed
as though followed by the phrase, _but not limited to›."
AS 1.10.040(b).
We recognize that section (b) of AS 1.10.040 was
enacted in 1991, after the date of Mustafoski's alleged offenses.
However, the drafters' commentary to this section states that it
was intended to codify pre-existing law:
Under standard rules of statutory draft
ing and interpretation, the term "includes"
is used preceding a partial listing or
illustrative list in a definition, while the
term "means" is used to provide a complete
meaning for the term defined. The Alaska
Supreme Court has adopted this rule [in Brown
v. Wood, 575 P.2d 760, 767 (Alaska 1978)].
The proposed provision [i.e., what is now AS
1.10.040(b)] would enact this standard
rule[.]
1991 House Journal, Supp. No. 10 (May 13), p. 2.
This rule of construction explains the different
wording of the definitions of "person" found in AS
11.81.900(b)(40) and AS 1.10.060(8). Assuming that the
legislature wanted the definition of "person" to include
political entities, it would be necessary for AS 11.81.900(b)(40)
to contain an explicit reference to political entities because
this statute uses the word "means", which indicates that what
follows is "a complete meaning for the term defined". On the
other hand, AS 1.10.060(8) would not require an explicit
reference to political entities because this statute employs the
word "includes", which indicates that what follows is a partial,
illustrative listing.
We therefore reject the State's argument that AS 1.10.
060(8) necessarily excludes political entities from the
definition of "person". Nevertheless, the State argues that, at
least for purposes of AS 22.20.020(a), the word "person" should
not include political entities. The State relies on Keel v.
State, 552 P.2d 155 (Alaska 1976), for its argument that the
State of Alaska should not be considered a "person" for purposes
of construing AS 22.20.020(a)(6).
Keel dealt with a sibling provision of the same
statute, subsection (a)(5), which disqualifies a judge whenever a
party to the lawsuit "has retained [the judge] as their attorney
or has been professionally counseled by [the judge] in
[connection with] any matter within two years preceding the
filing of the action". AS 22.20.020(a)(5). The question
presented in Keel was: if a judge has served as a government
attorney within the preceding two years, does subsection (a)(5)
disqualify him or her from participating in any lawsuit in which
the government is a party? The supreme court held that
AS 22.20.020(a)(5) does not require disqualification on this
broad a scale. Keel, 552 P.2d at 157.
The court noted that the original (pre-1967) version of
(a)(5) disqualified a judge from participating in a case if he or
she had previously "been attorney in [that] action or proceeding
... for either party". Keel, 552 P.2d at 156 n.2. As the
supreme court noted, this older form of the statute concerned
itself solely with the problem of a judge who had previously
acted as a lawyer in that very case. In such circumstances, the
rationale for disqualification is clear:
However upright the judge, ... however
free [he or she might be] from the slightest
inclination [to do anything but] justice,
there is a peril of ... unconscious bias or
prejudice, or that any former opinion formed
[during the attorney-client relationship] may
still linger to affect unconsciously [the
judge's] present judgment, or that [the
judge] may be moved or swayed unconsciously
by his [or her] knowledge of ... facts which
may not be revealed or stated at the trial,
or cannot be under the rules of evidence. No
effort of the will can shut out memory.
Keel, 552 P.2d at 156, quoting People v. Haas, 93 N.Y.S. 790, 792-
93 (N.Y. App. 1905).
But in 1967, the legislature broadened the scope of
(a)(5), redrafting the subsection to disqualify a judge if he or
she had acted as attorney for either party in any matter within
the two years previous to the filing of the current lawsuit. The
supreme court explained that the rationale of this amendment was
to prohibit judges from participating in cases, not because they
might have personal knowledge or opinions about the facts, but
because they might have residual loyalty to the party they had
represented:
[B]y expanding [subsection (a)(5)] ... [,]
Alaska's legislature evidenced concern about
a somewhat distinct problem: namely, that any
professional relationship between a judge and
one of the parties, formed or nurtured in any
manner during the months preceding the
judge's elevation to the bench, might create
a risk of partiality or the appearance of
partiality. The [legislature's] concern was
that personal loyalties fostered during [the
attorney-client relationship] might generate
conscious or unconscious partiality, or at
least its appearance.
Keel, 552 P.2d at 156 (emphasis in the original).
The supreme court nevertheless held that, even though
the statute could be read to exclude former government
prosecutors from participating as judges in all lawsuits
involving the government, the rationale of the statutory
prohibition did not extend that far. While the court
acknowledged that a former prosecutor would be disqualified from
participating "in any case in which he [or she] actually
participated ... by counseling or otherwise", Keel, 552 P.2d at
157 n.5, the court pointed out that a judge's former government
employment did not, by itself, mean that the judge had pre-
existing knowledge of the facts involved in the controversy:
In the case at bar, the [episode giving
rise to the lawsuit did not occur until]
several months after Judge Ripley's appoint
ment to the superior court ... . Thus, there
is no possibility that he might have learned
of the facts [of the case] while serving in
his prosecutorial role.
Keel, 552 P.2d at 157. The court further pointed out that
attorneys serving the government do not have the same
relationship with their "client" as an attorney would normally
develop with an individual, group, or organization:
[Moreover,] in the circumstances of a
... judge who had been employed as an
Assistant District Attorney, the risk of
personal loyalt[y] to [the] former client[],
engendered by virtue of the special pecuniary
nature of the [usual] attorney-client
relationship, is greatly diminished. It is
unrealistic to assume that representation of
such an "artificial and generalized" party as
"the State" might foster those kinds of
personal bonds that could develop between
private counsel and the individuals or groups
he [or she] had occasion to serve.
Keel, 552 P.2d at 157, quoting People v. Thomas, 503 P.2d 1374,
1375 (Cal. 1972). Accord People v. Delongchamps, 302 N.W.2d 626,
628 (Mich. App. 1981) (construing Michigan General Court Rule
912.2(4), the predecessor to current Michigan Court Rule 2.003(B)
(4)).
The portion of AS 22.20.020 interpreted in Keel, subsec
tion (a)(5), addresses the problem of a judge who has previously
acted as a lawyer on behalf of one of the parties. Mustafoski's
case involves subsection (a)(6), which addresses a related but
distinct issue: the problem of a judge who has previously acted
as a lawyer against one of the parties. In such instances,
employing the analysis used by the supreme court in Keel, there
are two kinds of potential difficulties if the judge were to
participate in the case: first, the judge might have personal
knowledge of the facts, and second, the judge might have
lingering animosity toward his or her former adversary.
The State argues that Keel's limiting interpretation of
subsection (a)(5) applies equally to subsection (a)(6). The
State reasons that, if a judge's former representation of the
State does not create the "personal bonds" between lawyer and
client that would normally disqualify the judge, it therefore
follows that a judge who has previously litigated against a party
on behalf of the State will not have formed a disqualifying
animosity toward his or her former opponent.
We agree that the supreme court's rationale for
limiting the scope of subsection (a)(5) is relevant when deciding
how to construe subsection (a)(6). However, we disagree with the
conclusion the State draws from this premise.
Keel holds that an attorney does not form a
disqualifying loyalty to the State simply by litigating on the
State's behalf. This implies that an attorney would not form a
disqualifying animosity toward the State simply by litigating
against the State. Indeed, subsection (a)(6) codifies this
reciprocal rule: the fact that a judge has previously litigated
against a party does not disqualify the judge if that party was
"the state or a municipality of the state".
But, in the present case, the State reads Keel for a
quite different proposition: that a government attorney who sues
or prosecutes an individual will not form a lawyer's normal level
of antipathy toward his or her opponent. This conclusion does
not follow from Keel, and we do not accept the State's reasoning.
Attorneys, whether in private practice or government
service, usually do not form lasting personal animosity toward
their legal opponents. However, the reality of law practice is
that people on opposite sides of a lawsuit will often do things
(perfectly lawful things) that obstruct and anger their
opponents. Moreover, even though an attorney may represent the
amorphous "government" rather than an individual client, in the
arena of legal combat a government attorney is just as likely as
a private attorney to conclude that his or her legal opponent is
in the wrong and is attempting to use the legal system to gain
unjust advantage or to avoid the deserved consequences of prior
misconduct. Litigation can easily engender residual ill-feeling
which, like residual loyalty, can unconsciously affect a person's
judgement and decisions. We believe that this is the reason the
legislature enacted a two-year "cooling-off period" in subsection
(a)(6).
Accordingly, we construe the word "person" in AS 22.20.
020(a)(6) to include the State of Alaska. The statute requires
disqualification of a judge who represented the State of Alaska
against a party within the previous two years. The State
concedes that Judge Curda, when he was a state prosecutor,
personally secured an indictment against Mustafoski less than two
years before he acted as a judicial officer in Mustafoski's
present case. Even assuming that the prior indictment dealt with
an unrelated matter, Judge Curda was disqualified from
participating in Mustafoski's present case. For this reason,
Judge Curda and Judge Greene should have granted Mustafoski's
motion.
We do not imply that Judge Curda harbored or gave any
indication of actual bias against Mustafoski. Subsection (a)(6)
requires no proof of actual bias, nor does it require proof of a
reasonable appearance of bias. Within the two-year period, the
statute calls for a judge's disqualification even when the judge
is not biased and even when circumstances do not otherwise give
rise to an appearance of partiality.4
Because Mustafoski's motion to disqualify Judge Curda
should have been granted, we reverse Mustafoski's convictions.
However, as discussed above, we uphold both the search warrant
issued for Mustafoski's residence and the validity of Counts 1,
2, and 5 of the indictment. This case is remanded to the
superior court for further proceedings upon that indictment.
The judgement of the superior court is REVERSED.
_______________________________
1 Superior Court Judge Dale O. Curda decided Mustafoski's
pre-trial attack on the indictment. As noted above, and as
explained in more detail below, we hold that Judge Curda was
disqualified by AS 22.20.020(a)(6) from participating in
Mustafoski's case because Judge Curda, in his former role as the
Bethel District Attorney, had personally prosecuted Mustafoski
within the previous two years. Judge Curda was likewise disquali
fied from making the pre-trial decision regarding the indictment.
Nevertheless, we will review and decide the validity of the
indictment. At the trial court level, Mustafoski's motion was
decided purely on the pleadings and the pre-existing grand jury
record. When Judge Curda decided the validity of the indictment,
he made no determinations of witness credibility or any other
decisions to which we must defer. Compare State v. Conway, 711
P.2d 555, 557 (Alaska App. 1985), in which this court recognized
that a trial court judge who decides the sufficiency of a search
warrant on a pre-existing record "performs a reviewing function
essentially identical to ours", and that we owe no deference to
the trial judge's decision. The parties have extensively briefed
the indictment issues, and they call on us to decide them. We
thus conclude that, under the circumstances of this case, Judge
Curda's decision of the grand jury issues at the trial court
level was harmless error, and we further conclude that it is
appropriate for us to decide these issues despite Judge Curda's
disqualification.
2 Mustafoski has not asserted that there is a connection
between that former case and the present one.
3 AS 22.20.090(a)(9) states that a judge should recuse
himself or herself whenever "the judicial officer feels that, for
any reason, a fair and impartial decision cannot be given." This
wording suggests that a judge's decision under AS 22.20.020(a)(9)
should turn solely on the judge's subjective perception of his or
her personal bias or lack of bias. However, in Perotti, this
court held that disqualification under subsection (a)(9) is
mandated when, under the circumstances of the case, "an unmistak
able appearance of bias will arise from a judge's participation
in a case". Perotti, 806 P.2d at 327. That is, even though a
judge's decision to deny a disqualification motion is reviewed
under the "abuse of discretion standard", the judge's conclusion
that he or she can decide the case fairly will constitute an
abuse of discretion whenever "it is plain that a fair-minded
person could not rationally come to that conclusion on the basis
of the known facts." Perotti, 806 P.2d at 328, quoting Amidon v.
State, 604 P.2d 575, 577 (Alaska 1979).
4 We note that the legislature allows a party to waive this
ground of disqualification. AS 22.20.020(b).
