NOTICE: This opinion is subject to
formal correction before publication in the
Pacific Reporter. Readers are requested to
bring typographical or other formal errors to
the attention of the Clerk of the Appellate
Courts, 303 K Street, Anchorage, Alaska
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THE COURT OF APPEALS OF THE STATE OF ALASKA
STATE OF ALASKA, )
) Court of Appeals Nos. A-4840/48/49
Appellant, ) Trial Court No. 3AN-S91-5935CR t/w
) 3AN-S91-6507CR & 3AN-S91-7934CR
v. )
) O P I N I O N
ROBERT A. BREEZE, )
)
Appellee. ) [No. 1343 - May 6, 1994]
______________________________)
Appeal from the Superior Court, Third
Judicial District, Anchorage, Joan Katz,
Judge.
Appearances: David C. Stewart, Law
Office of Hickey and Stewart, Anchorage, for
Appellant. Douglas Pope, Wagstaff, Pope &
Katcher, Anchorage, for Appellee.
Before: Coats, Judge, Andrews, Superior
Court Judge,* and Wolverton, District Court
Judge.* [Bryner, Chief Judge, and Mannheimer,
Judge, not participating.]
WOLVERTON, Judge.
The issues presented in this appeal are whether, under
the circumstances of this case, the State Attorney General had
the authority to appoint a special prosecutor and, if so, whether
the trial court was correct in dismissing indictments on the
grounds that the Special Prosecutor had exceeded the scope of the
authority granted by the Attorney General. The case presents
issues of first impression in Alaska. We find that the Attorney
General had the authority to appoint a special prosecutor in this
instance and that the trial court erred both in finding that the
Special Prosecutor had exceeded the scope of his appointment and
in dismissing the indictments on that ground. We therefore
vacate the trial court's order and reinstate the indictments.
Background1
On January 25, 1990, the law firm of Boyko, Breeze and
Flansburg filed a lawsuit on its own behalf against Hazama-Gumi,
Ltd., a Japanese firm that had sought a contract to finance and
build a major part of the Bradley Lake hydroelectric project.
In that suit, 3AN-90-718CI, Attorney Robert A. Breeze claimed
that he had been working on a $500,000 contingency fee basis for
Hazama, which was to be paid if the firm won a no-bid contract
for the project. Although Hazama dropped out of the process when
the state rejected its financing plan and decided to use
competitive bidding, Breeze claimed that Hazama later agreed to
pay him for services, and he submitted an itemized breakdown of
services and expenses in excess of $200,000. The suit also
demanded repayment of $50,000 for various political contributions
made on behalf of Hazama.
The civil suit against Hazama-Gumi attracted prosecu-
torial attention to potential violations of lobbying without
registration and lobbying under an improper contingency fee
arrangement. By November of 1990, the Chief Prosecutor for the
Department of Law had commenced an inquiry into the matter.
However, in early November of 1990, Walter J. Hickel
was elected Governor and shortly thereafter on December 11, 1990,
he announced the appointment of Charles E. Cole as his attorney
general. Edgar Paul Boyko, a partner in the firm under
investigation, had been involved in Hickel's gubernatorial
campaign, and after the election he was named to the Governor's
Department of Law transition team. It was Boyko, in fact, who
recommended to Hickel that he appoint Cole as attorney general.
The relationships among Governor Hickel, Boyko, and
Cole were significantly intertwined. Boyko had served as
attorney general in Hickel's first administration in the 1960s.
During the 1970s and 1980s, Cole and Boyko were private
practitioners and had represented one another in litigation where
the other had been named as a party. Further, Cole and Boyko had
jointly represented several different clients, and Cole had
represented Hickel while in private practice.
On December 6, 1990, Boyko apparently asked Governor
Hickel to appoint a special prosecutor to expedite the criminal
investigation involving his law firm. Boyko expressed his belief
that the investigation was a politically motivated attempt to
reduce his influence with the new administration and to deflect
attention from his complaints about the prior administration's
selection of a private law firm to litigate the Exxon Valdez
claims on behalf of the state.
Three attempts were made to secure the services of a
special prosecutor. Although Cole had tried to remove himself
from the selection process to some degree by assigning the
selection duties to his deputy, he stepped in and rejected the
first candidate because the candidate had been a law partner of
the prior administration's attorney general.2 After the second
and third candidates indicated that they had conflicts that
prohibited them from taking the position, Breeze himself
indicated that he wanted the state to get the investigation
underway.
At the outset of the special counsel selection process,
the Deputy Attorney General submitted a Request for Alternate
Procurement, which was marked "confidential." In that document
he stated that
this case involves investigation of
individuals previously represented by both
the Attorney General and the law firm with
which the Deputy Attorney General was
associated until his employment with the
Department of Law. Because of the inherent
conflict of representation, the use of a
special prosecutor has been deemed to be
necessary. Due to the confidential nature of
all criminal investigations, the department
must limit its contacts with prospective
outside counsel to an absolute minimum in
order to protect the constitutional rights of
the individuals involved in the matter under
investigation. As such, the use of any form
of open competitive procurement is
impractical and contrary to the public
interest.
The selection process ultimately resulted in the
appointment of Anchorage attorney David Stewart as Special
Counsel.3 In his appointment letter dated April 15, 1991,
Attorney General Cole advised Stewart that
This letter constitutes your
appointment as Special Counsel to act on
behalf of the State of Alaska to investigate
whether any violations of law may have
occurred in connection with the matters
mentioned in the complaint filed in 3AN-S90-
718 Civil, a civil case filed by Boyko,
Breeze, & Flansburg, et. al., to collect fees
allegedly owed for services rendered to
Hazama-Gumi, Ltd., and to investigate such
other related matters as may arise in the
course of your investigation.
As Special Counsel, acting in an
independent capacity and exercising your
independent judgment, you are to direct all
phases of the investigation, the filing of
any charges you conclude from your
investigation are warranted, and the
prosecution of any such charges to their
conclusion. You are also authorized, but are
not required, to request the services of the
Alaska State Troopers to assist you in the
conduct of your investigation, and to retain
such other attorneys and special services as
you find warranted.
Enclosed are three copies of a
State of Alaska Professional Services
Contract for your signature setting forth and
describing the terms and conditions embodied
in this letter of appointment. Please sign
and return two copies to the Department of
Law.
The standard agreement form for professional services
included, inter alia, the following provisions:
Article 5. Termination. The project
director, by written notice, may terminate
this contract, in whole or in part, when it
is in the best interest of the State. The
State is liable only for payment in
accordance with the payment provisions of
this contract for services rendered before
the effective date of termination.
. . . .
Article 7. No Additional Work or
Material. No claim for additional services,
not specifically provided in this contract,
performed or furnished by the contractor,
will be allowed, nor may the contractor do
any work or furnish any material not covered
by the contract unless the work or material
is ordered in writing by the Project Director
and approved by the Agency Head.
Article 8. Independent Contractor. The
contractor and any agents and employees of
the contractor act in an independent capacity
and are not officers or employees or agents
of the State in the performance of this
contract.
. . . .
Article 13. Officials Not to Benefit.
Contractor must comply with all applicable
federal or State laws regulating ethical
conduct of public officers and employees.4
Special Prosecutor Stewart directed the investigation
and presented the matter before a grand jury, which indicted
Breeze on various charges in three separate cases.5 Breeze
entered pleas of not guilty to all of the charges, and he moved
to dismiss the indictments on two grounds: that the Attorney
General had no authority to appoint a special prosecutor, and
that the Special Prosecutor had exceeded the scope of his
authority. Breeze also alleged that the Attorney General's
declaration of a conflict was merely a ruse to deflect the
investigation from others and limit it to Breeze only; on the
other hand, Breeze argued that if the Attorney General had a
conflict, the conflict should have prohibited him from selecting
a special prosecutor.
Breeze moved to depose a number of government
officials, and the state moved to quash the subpoenas. The trial
court quashed some of the subpoenas, held the subpoenas for
Governor Hickel and the Lt. Governor in abeyance, and ordered
Cole, Deputy Attorney General Blankenship, and Boyko to appear
for an evidentiary hearing. The trial court then stayed its
order pending appellate review. After this court denied the
state's petition for review, the Alaska Supreme Court granted
review and stayed the evidentiary hearing
pending a determination by the superior
court of whether the attorney general has the
authority to appoint a special prosecutor,
and if so, the circumstances under which such
authority may be exercised. If, after these
questions are determined, an evidentiary
hearing is necessary to facilitate the
disclosure of relevant information, such a
hearing should be held.
Rather than reach the issue of whether and under what
circumstances the attorney general has the authority to appoint a
special prosecutor, the trial court chose to resolve the question
by ruling only on what it viewed as the "narrowest issue raised"
and dismissed the indictments on its finding that the Special
Prosecutor had "exceeded the scope of the authority vested in him
by the appointment letter."
Following the trial court's order, the state moved for
reconsideration and submitted a letter from the Attorney General,
which read as follows:
I have reviewed my letter of April
15, 1991 appointing David Stewart Special
Counsel to investigate the Breeze matter. I
have also reviewed the decision of Judge Katz
distribut- ed on February 1, 1993 that
interpreted that appointment.
Mr. Stewart's performance under
that appointment resulted in three
indictments being returned against Mr.
Breeze. His investigation and assistance to
the grand jury in the return of those
indictments is within the scope of Mr.
Stewart's authority that I intended him to
have when I appointed him to be Special
Counsel on April 15, 1991.
The trial court denied the state's motion for
reconsideration, and the state appealed.
The Attorney General's Authority to Appoint a Special Prosecutor
Although the trial court chose not to reach the issue,
we believe that it is appropriate for us to resolve whether the
attorney general has the authority to appoint a special
prosecutor. The issue was fully briefed and argued before the
trial court and in this appeal. Sea Lion Corp. v. Air Logistics
of Alaska, 787 P.2d 109, 115 (Alaska 1990); State v. Northwestern
Construction, Inc., 741 P.2d 235, 239 (Alaska 1987). Further,
while we will reverse a trial court's factual determinations only
if clearly erroneous, questions that involve application of legal
rules to the facts are subject to our independent judgment.
Jones v. Jones, 835 P.2d 1173, 1175 (Alaska 1992). As to
questions of law, we are to adopt the rule of law that is most
persuasive in light of precedent, reason, and policy. Guin v.
Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).
Alaska Statute 44.23.020 sets forth the duties of the
attorney general and states, in part, that
(a) The attorney general is the
legal advisor of the governor and other state
officers.
(b) The attorney general shall
. . . .
(3) prosecute all cases involving
violation of state law, and file informations
and prosecute all offenses against the
revenue laws and other state laws where there
is no other provision for their prosecution;
. . . .
(7) perform all other duties
required by law or which usually pertain to
the office of attorney general in a state[.]
In the case before us, no claim has been made that the
offenses alleged in the indictments were improperly brought or
involved prohibited subjects of prosecution under AS
44.23.020(b)(3). However, the record before us demonstrates that
the Attorney General reasonably believed that he was ethically
restrained from prosecuting the matter because, as the Deputy
Attorney General stated in his Request for Alternate Procurement,
"this case involves investigation of individuals previously
represented by both the Attorney General and the law firm with
which the Deputy Attorney General was associated until his
employment with the Department of Law. Because of the inherent
conflict of representation, the use of a special prosecutor has
been deemed to be necessary."
Additionally, in a confidential document captioned
"AUTHORITY TO SEEK PROFESSIONAL SERVICES" the Deputy Attorney
General stated that due to "the inherent conflict of
representation involved in such a situation, it has been
determined that the use of a special prosecutor is necessary in
order to maintain public confidence in the judicial process and
to assure that the conduct of any resulting prosecution is done
without bias or any appearance of impropriety."
Despite the Attorney General's belief that a conflict
existed, however, we find that the Attorney General had a
continuing obligation to ensure that all violations of law would
be prosecuted as required under AS 44.23.020(b)(3). As a
result, we find that the appointment of a special prosecutor by
the Attorney General as a remedy to his perceived conflict was
both appropriate and authorized under AS 44.23.020(b)(7).
Prosecution of the alleged violations was a duty required by law
(AS 44.23.020(b)(3)), and if the Attorney General in his
discretion chose to disqualify himself and the Department of Law
from prosecuting the violations, it logically follows that his
appointment of a special prosecutor to conduct the prosecution
was also a duty required by law.6
Breeze argues that the Attorney General did not have
the authority to appoint a special prosecutor because such
delegations of power are limited by the Alaska Constitution, by
statute, and by the common law doctrine of delegatus no potest
delgare (absent consent of the principal, delegated power may not
be delegated further). According to Breeze, article III, section
22 of the Alaska Constitution limited "all . . . respective
functions, powers and duties" of the attorney general to those
"allocated by law,"7 and that the allocation under law is
confined by AS 44.17.010 and AS 44.17.040, which somehow limits
or restricts the attorney general from appointing a special
prosecutor. However, we do not believe that the Alaska
Constitution or the applicable statutes express or imply such a
restriction on the attorney general's authority to properly
delegate certain duties of the office.
Alaska Statute 44.17.010 states that the attorney
general "may assign the functions vested in the department to
subordinate officers and employees." Alaska Statute 44.17.040
authorizes the attorney general to "establish necessary
subordinate positions, make appointments to these positions, and
remove persons appointed within the limitations of appropriations
and subject to state personnel laws. Each person appointed to a
subordinate position established by the [attorney general] is
under the supervision, direction, and control of the [attorney
general]."
It is apparent the key concern is, that in delegating
functions and establishing staff positions, the attorney general
is to maintain appropriate supervision, direction, and control
over individuals serving in positions that are subordinate to the
attorney general. Under the circumstances of this case, the
Attorney General perceived a disqualifying interest, but he
nevertheless maintained appropriate supervision, direction and
control over the Special Prosecutor to whom he had appropriately
delegated functions.
As previously stated, the attorney general has the
power and duty under AS 44.23.020(b)(3) and (b)(7) to ensure that
state law violations are investigated and prosecuted. The
Attorney General fulfilled this legal obligation by appointing a
special prosecutor who, while operating in an ethically required,
independent capacity, nevertheless remained subordinate to the
Attorney General.
The Attorney General hired the Special Prosecutor after
directing the selection process to the extent necessary to ensure
that the person selected would not also be disqualified by a
conflict of interest. The Attorney General directed the Special
Prosecutor to act "in an independent capacity," and he directed
him to exercise his "independent judgment" subject, of course, to
the requirement that he "comply with all applicable federal or
state laws regulating ethical conduct of officers and employees,"
(as set forth in Article 13 of the Standard Agreement form for
Professional Services).
While acting independently, however, the Special
Prosecutor was required to submit claims for services to the
Department of Law which were subject to the approval of the
Attorney General (Article 7, Professional Services Agreement),
and which made his work subject to some degree of review.
Addition- ally, the Special Prosecutor was subject to termination
by the Attorney General at any time that the Attorney General
perceived it to be in the best interest of the state (Article 5,
Professional Services Agreement). Thus, the Special Prosecutor
remained in a position subordinate to the Attorney General, as
required by AS 44.17.010 and AS 44.17.040. We therefore conclude
that the trial court was clearly erroneous in its factual finding
that the Special Prosecutor was not under appropriate and
continuing supervision of the Attorney General.
Further support for the proposition that the Alaska
Constitution and statutes were not meant to serve as restrictive
limits to the attorney general's authority to delegate is found
in the Proceedings of the Alaska Constitutional Convention. The
Chairperson of the Executive Committee commented that
in keeping with the modern thinking of a
strong executive, it is certainly the policy
not to establish offices by name and to
narrow down their functions in the
constitution. The policy is to leave [ ]
them broad and general and flexible enough so
they can be adjusted to meet changing times
and changing circumstances.
3 Proceedings of the Alaska Constitutional Convention (PACC) 2008
(January 13, 1956).
A reading of the statutory authorization for other
Department of Law operations suggests an intent to leave offices
and their functions broad, general, and flexible, even when
circumstances do not involve a disqualification of the attorney
general. For example, AS 44.23.050 provides that
If a matter in which the state is
interested is pending in a court distant from
the capital, and it is necessary for the
state to be represented by counsel, the
attorney general, with the approval of the
governor, may engage one or more attorneys to
appear for the attorney general. The
attorney general may pay for these services
out of appropri- ations for the attorney
general's office.
Additionally, the fact that the legislature provided a
mechanism in AS 36.30.015 for state agencies to procure personal
services contracts demonstrates that the legislature contemplated
retention of the services of counsel outside of the Department of
Law.8
In Public Defender Agency v. Superior Court, Third
Judicial Dist., 534 P.2d 947, 950 (Alaska 1975), the Alaska
Supreme Court explained that "[g]enerally, an attorney general
has those powers which existed at common law except where they
are limited by statute or conferred upon some other state
official." In describing the breadth of this authority, the
supreme court went on to state that
Under the common law, an attorney
general is empowered to bring any action
which he thinks necessary to protect the
public interest, and he possesses the
corollary power to make any disposition of
the state's litigation which he thinks best.
This discretionary control over the legal
business of the state, both civil and
criminal, includes the initiation,
prosecution and disposition of cases.
Id. (citations omitted).
In Florida ex rel Shevin v. Exxon Corp., 526 F.2d 266,
268 (5th Cir.), cert. denied, 429 U.S. 829 (1976), the court
discussed the evolution of the office of the common law attorney
general, and explained that as chief legal representative of the
king, the
attorney general was clearly subject to
the wishes of the crown, but, even in those
times, the office was also a repository of
power and discretion; the volume and variety
of legal matters involving the crown and the
public interest made such limited
independence a practical necessity.
Transposition of the institution to this
country, where govern- mental initiative was
diffused among the officers of the executive
branch and the many individuals comprising
the legislative branch, could only broaden
this area of the attorney general's
discretion.
(Footnotes omitted).
Elaborating on the same point made by the Alaska
Supreme Court in Public Defender Agency, the court in Shevin went
on to explain that
The attorneys general of our states
have enjoyed a significant degree of
autonomy. Their duties and powers typically
are not exhaustively defined by either
constitution or statute but include all those
exercised at common law. There is and has
been no doubt that the legislature may
deprive the attorney general of specific
powers; but in the absence of such
legislative action, he typically may exercise
all such authority as the public interest
requires. And the attorney general has wide
discretion in making determination as to the
public interest.
Id. (footnotes omitted).
As previously stated, neither the Alaska Constitution
nor the legislation establishing the Department of Law limits or
deprives the attorney general of the power to appoint a special
prosecutor when, in the wide discretion granted, the attorney
general believes such an appointment to be in the public
interest. We hold that the proper appointment of a special
prosecutor in circumstances where the attorney general believes
he and the Department of Law are disqualified by a conflict of
interest is within the attorney general's discretionary control
over the legal business of the state.
With respect to the argument that the appointment was
somehow barred by the common law doctrine of delegatus non potest
delegare, we are unable to find from the record and applicable
law that the Attorney General did not have the consent of the
principal to make a proper delegation to a special prosecutor.
The Scope of the Special Prosecutor's Authority
Although we have concluded that the trial court erred
in its factual finding that the Special Prosecutor was not under
the continuing supervision of the Attorney General, we
nevertheless must address the trial court's legal conclusion that
the Special Prosecutor exceeded the scope of his authority. In
reaching this conclusion, the trial court apparently relied upon
the argument made by Breeze that Schumer v. Holtzman, 454 N.E.2d
522 (N.Y. 1983) was controlling. We find that Schumer is
distinguishable on several grounds, and that the trial court
therefore erred in its legal conclusion as well.
Schumer, in fact, serves to highlight the difference
between jurisdictions that have express constitutional or
statutory limitations on the attorney general's authority to
appoint a special prosecutor, and those that do not. In Schumer,
the New York Court of Appeals upheld the lower court's decision
that the district attorney had improperly appointed a special
prosecutor to investigate and prosecute an individual whom the
district attorney, Holtzman, had run against for a congressional
seat. Schumer, 454 N.E.2d at 523.
In contrast to the Alaska attorney general who
functions with the broad powers and duties as explained in Public
Defender Agency, the district attorneys in New York "do not hold
a common law office; and they have no powers but such as can be
found written in the statute book." People v. Corning, 2 N.Y. 9,
18 (1849).
The district attorney in Schumer was an elected
constitutional officer who was directed by statute to prosecute
crimes that were recognized by the courts in the county for which
she had been elected to serve. Schumer, 454 N.E.2d at 523-24
(citing County Law 700(a), McKinney's Consolidated Laws of New
York (MCL)). County Law 930 authorized the district attorney
to appoint assistant district attorneys to serve at the pleasure
of the district attorney. Id. at 524. However, unlike in
Alaska, the New York county laws included a specific statutory
scheme for the appointment of a special prosecutor. In the event
that the district attorney were to become disabled or
disqualified, the statutory scheme provided for court appointment
of a special district attorney who would supersede the district
attorney. Id. (citing County Law 701). Further, under
subdivision 2 of section 63 of the Executive Law9 the governor of
New York has the power to order the attorney general to supersede
a district attorney.
Schumer was elected to a congressional seat formerly
held by Holtzman. Id. at 523. After the United States Attorney
investigated the Schumer campaign for possible violations and
declined prosecution, Holtzman, who by then was elected as county
district attorney, decided to pursue the matter. However,
because she was concerned about charges of bias, she asked the
governor of New York to order the attorney general to supersede
her. Id.
After the governor refused her request, the district
attorney apparently did not seek court appointment of a special
prosecutor under 701, but instead chose to bypass that
provision by appointing a special prosecutor under 930. Id.
The terms of this appointment provided that the special
prosecutor's decisions or actions would not be overridden by the
district attorney, and that he could be removed from his duties
only for disability or for "extraordinary impropriety," as
opposed to removal at the pleasure of the district attorney as
set forth in 930. Id. at 524. The court found this
appointment to be invalid because "[s]uch a transfer may be
accomplished only by executive or court order." Id. at 525.
In Alaska, by contrast, there are no similar constitu-
tional or statutory limitations regarding appointments of special
prosecutors, and, as previously discussed, the Special Prosecutor
appointed to investigate Breeze remained appropriately
subordinate to the Attorney General.
The fact that the Special Prosecutor appointed to
investigate Breeze remained subordinate to the Attorney General
leads to our conclusion that the trial court erred in dismissing
the indictments on the grounds that the Special Prosecutor
somehow exceeded the scope of his authority. First, we believe
the trial court erred in adopting such a restrictive
interpretation of the phrase from the Special Prosecutor's
appointment letter that authorized him "to investigate such other
related matters as may arise in the course of your
investigation."
Because the authority for the appointment was derived
from AS 44.23.020(b)(3), which required prosecution of "all cases
involving state law," the term "related matters" could as well be
interpreted to include all law violations by individuals under
investigation. This is particularly true when the appointment
letter is read together with the appendix to the standard
agreement form entitled "Article I. The Services to be performed
by the Contractor." Under Article I, Special Counsel was to
investigate not only matters "in connection with the
investigation relating to the complaint in 3AN-90-718CI, a civil
case filed to collect fees for services from Hazama-Gumi, Ltd.,"
but he was more broadly authorized to serve as Special Counsel in
"other matters that may arise in the course of the investigation
. . . ."
Certainly the Attorney General, who was privy to the
agreement that contracted the services of the Special Prosecutor
and who authored the appointment letter, would have had some
standing to challenge the Special Prosecutor for exceeding his
authority; however, the Attorney General made it clear that the
Special Prosecutor had acted within the scope of the authority
intended. We find no basis to assume that Breeze had the same
standing to challenge whether the Special Prosecutor exceeded the
scope of his appointment.
Even if the Special Prosecutor were found to have
technically exceeded the scope of his appointment, absent a
showing of prejudice by Breeze, the indictments would remain
valid pursuant to the Special Prosecutor's authority as a de
facto officer. See People v. Davis, 272 N.W.2d 707, 710 (Mich.
App. 1979).
In Davis, the county prosecuting attorney petitioned
the court pursuant to statute for appointment of a special
prosecutor due to a conflict of interest he perceived regarding
the close working relationship between his office and the
sheriff's department whose deputy was the subject of
investigation. The court appointed a special prosecutor who
conducted an investigation and authorized issuance of warrants
that charged the defendant with embezzlement and fraudulent
conversion. Id. at 708. The lower court later determined that
because the circuit court was without authority to appoint a
special prosecutor to appear in district court, it was necessary
not only to set aside the appointment but also to dismiss the
warrants. Id. at 709-10.
The appellate court agreed that the circuit court did
not have the power to appoint a special prosecutor for the
purposes requested. However, the appellate court held that the
lower court erred in dismissing the warrants that were issued by
the special prosecutor, relying on the de facto doctrine, which
validates, on grounds of public policy and prevention of failure
of public justice, the acts of officials who function under color
of law. Id. at 710. The court in Davis quoted from 46 C.J.
Officers, 366 p. 1053, which read as follows:
A person will be held to be a de
facto officer when, and only when, he is in
possession, and is exercising the duties, of
an office; his incumbency is illegal in some
respect; he has at least a fair color of
right or title to the office, or has acted as
an officer for such a length of time, and
under such circumstances of reputation or
acquiescence by the public and public
authorities, as to afford a presumption of
appointment or election, and induce people,
without inquiry, and relying on the
supposition that he is the officer he assumes
to be, to submit to or invoke his action;
and, in some, although not all,
jurisdictions, only when the office has a de
jure existence.
We believe that the de facto doctrine is applicable
under the circumstances, and that it requires reinstatement of
the indictments against Breeze. The Special Prosecutor was
investi- gating and prosecuting Breeze pursuant to the authority
of the Attorney General, derived from AS 44.23.020 and vested in
him by his appointment.
Although we have found that the appointment and
exercise of authority were proper, the result would be the same
even if the trial court were correct that the incumbency was
illegal in some respect; the Special Prosecutor had "at least a
fair color or right of title," and "acted as an officer for such
a length of time, and under such circumstances of reputation or
acquiescence by the public and public authorities, as to afford a
presumption of appointment." Davis, 272 N.W.2d at 710.
The process of appointing a special prosecutor was
reported publicly and conducted at the request of Boyko, Breeze's
law partner at the time. After Boyko made this request to the
Governor, the Attorney General, as chief legal advisor to the
Governor, commenced the selection process. When difficulties
arose in selecting a qualified person, Breeze himself discussed
the selection process and urged the state to get on with the
investigation. Thus, the Special Prosecutor had a fair color or
right to title, and he acted under circumstances of reputation or
acquiescence not only of public authorities and the public, but
also by Breeze himself. The Special Prosecutor conducted an
investigation, submitted regular reports to the Attorney General,
and presented the matters to a grand jury under circumstances
that induced people to submit to or invoke his action.
Questions regarding the Special Prosecutor's authority
had no demonstrated bearing on the grand jury's determination to
return indictments against Breeze. Even if the Special
Prosecutor's incumbency were illegal in some respect, there was
no basis for the dismissal of the indictments, since, in any
case, his acts achieved de facto legitimacy. See People v.
Montoya, 616 P.2d 156, 162 (Colo. App. 1980). There is nothing
in the record to show how Breeze could have been prejudiced by
the appointment of a special prosecutor who was contractually
bound by "all applicable federal or state laws regulating ethical
conduct of public officers," and who presented the cases to a
grand jury for review.
In summary, we find that the Attorney General had the
authority to appoint the Special Prosecutor under the
circumstances of this case. We also find that the Special
Prosecutor acted within the scope of his authority.10 Finally, we
hold that the Special Prosecutor acted at least with de facto
authority and that, absent any record demonstrating resulting
prejudice, there was no basis for dismissal of the indictments.
The order of the trial court is therefore VACATED, and the
indictments are reinstated.
_______________________________
*Sitting by assignment made pursuant to article IV,
section 16 of the Alaska Constitution.
1. The background is essentially not in dispute and is
drawn largely from an affidavit submitted by Breeze's counsel as
an offer of proof, and from the statement of facts that Breeze
submitted in briefing to the trial court. Both the affidavit and
statement of facts referenced several letters, newspaper
articles, and contract documents.
2. Attorney General Cole later set forth his recollection
of the selection process in an affidavit, which states, in part,
as follows:
I, Charles E. Cole, being first duly sworn, do
hereby testify and state as follows:
1. I am currently attorney general for the State
of Alaska, a position I have held since December, 1990.
2. Sometime in 1991 -- I believe in the spring -
- Edgar Paul Boyko, then a law partner with Robert
Breeze, told me that he believed an investigation being
conducted by the Department of Law into possible
criminal actions of Mr. Breeze was motivated by
criticisms which he, Edgar Paul Boyko, had made against
the Department of Law concerning its selection of law
firms to prosecute on behalf of the State the Exxon
Valdez claims.
3. I assured Mr. Boyko that that was certainly
not the case so far as I knew, that former Attorney
General Doug Baily had told me about this investigation
shortly after I was appointed Attorney General, and
that so far as I was aware, the investigation had
nothing to do with the criticisms of Mr. Boyko about
the Department of Law.
4. On the other hand, I told Mr. Boyko that I
wanted to be certain that the investigation being
conducted by the Department of Law was impartial, and
not motivated by Mr. Boyko's criticisms of the
Department of Law, so I would appoint special counsel
to conduct the investigation and to prosecute
violations of criminal law which might develop from the
investigation.
5. Initially I said that because of my personal
and professional associations with Mr. Boyko, and to
avoid possible public criticism that the selection by
me of the special counsel was motivated by improper
considerations, I would commit the selection of
independent counsel to the Deputy Attorney General.
3. In a continuing paragraph to the affidavit quoted in
n.2, supra, Attorney General Cole explained how the selection
process finally resulted in the selection of Stewart as Special
Prosecutor:
6. The initial nomination of independent counsel
by the Deputy Attorney General, when it came to my
attention, was -- in my view -- subject to possible
criticism because either the independent counsel or the
law firms with which he was associated had significant
financial relationships with the Department of Law and
therefore could be viewed as less than impartial.
Another designation of special counsel was made, but
the designee declined to act because of a perceived
conflict of interest. Therefore, I elected to make the
selection of the independent prosecutor myself and I
eventually did select David Stewart because I viewed
him as wholly impartial and competent to conduct the
investigations and to pursue whatever criminal
prosecutions he concluded were warranted.
4. An appendix to the standard agreement form included the
following typed provision:
Article 1. The Services to be performed by the
Contractor
Article 1.1 The Contractor, in the person of David C.
Stewart, shall serve as Special Counsel on behalf of
the State of Alaska in connection with the
investigation relating to the complaint in 3AN-90-718
CI, a civil case filed to collect fees for services
from Hazama-Gumi, Ltd., and to other matters that may
arise in the course of the investigation. The scope of
Contractor's authority and services as Special Counsel
are set out in the attached letter of appointment dated
April 15, 1991, and incorporated by reference herein.
5. Three indictments were returned by the grand jury
against Attorney Robert Breeze, charging him as follows. In case
3AN-S91-5935CR, he was charged with two counts of securities
violations, AS 45.55.210, two counts of theft in the first
degree, AS 11.46.- 120, a count of scheming to defraud, AS
11.46.600(a)(2), two counts of misapplication of property, AS
11.46.620(a), and a count of forgery in the first degree, AS
11.46.500(a)(1). In case 3AN-S91-6507CR, he was charged with a
count of misapplication of property, AS 11.46.620(a) and a count
of scheming to defraud, AS 11.46.620- (a)(2). In case 3AN-S91-
7934CR, Breeze was charged with a count of theft in the first
degree, AS 11.46.120, a count of scheming to defraud, AS
11.46.600(a)(2) and a count of misapplication of property, AS
11.46.620(a).
6. A contrary application of AS 44.23.020(b)(3) and (b)(7)
would lead to an illogical result: if an attorney general who is
disqualified from prosecuting a particular case were also unable
to appoint a special prosecutor, a case that would otherwise be
appropriate for investigation and possible prosecution would not
be subject to any prosecution. The attorney general in such a
situation would be left with the untenable choice of (1)
violating the duty specifically imposed by AS 44.23.020(b)(3) by
not prosecuting a violation of state law (and possibly being
faulted for not pursuing prosecution because of a prior
association with the accused), or (2) prosecuting the individual
with the risk of being charged with an unethical conflict of
interest.
A fair reading of AS 44.23.020 does not require placing
an attorney general in such an untenable dilemma: the attorney
general is obligated under the statute to investigate and
prosecute law violations, and if the attorney general and
Department of Law are disqualified from doing so, the attorney
general is neverthe- less "required by law" to ensure that the
investigation and prosecution are conducted by someone who is
qualified, whether that person is denominated as special counsel,
special prosecutor, or by some other title.
7. Article III, section 22 of the Alaska Constitution
reads as follows:
Executive Branch. All executive
and administrative offices, departments, and
agencies of the state government and their
respective functions, powers, and duties
shall be allocated by law among and within
not more than twenty principal departments,
so as to group them as far as practicable
according to major purposes. Regulatory,
quasi-judicial, and temporary agencies may be
established by law and need not be allocated
within a principal department.
8. AS 36.30.850(b)(32) now provides that the procurement
code does not apply to
contracts that are between the
Department of Law and attorneys who are not
employed by the state and that are for the
review or prosecution of possible violations
of the criminal law of the state in
situations where the attorney general
concludes that an actual or potential
conflict of interest makes it inappropriate
for the Department of Law to review or
prosecute the possible violations.
9. Executive Law 63 sets forth the general duties of the
New York Attorney General, who is also an elected constitutional
officer under Article 5 1; section 63 reads as follows:
General duties
The attorney-general shall:
1. Prosecute and defend all
actions and proceedings in which the state is
interested, and have charge and control of
all the legal business of the departments and
bureaus of the state, or of any office
thereof which requires the services of
attorney or counsel, in order to protect the
interest of the state . . . .
2. Whenever required by the
governor, attend in person, or by one of his
deputies, any term of the supreme court or
appear before the grand jury thereof for the
purpose of managing and conducting in such
court or before such jury criminal actions or
proceedings as shall be specified in such
requirement; in which case the attorney-
general or his deputy so attending shall
exercise all the powers and perform all the
duties in respect of such actions or
proceedings, which the district attorney
would otherwise be authorized or required to
exercise or perform; and in any of such
actions or proceedings the district attorney
shall only exercise such powers and perform
such duties as are required of him by the
attorney-general or the deputy attorney-
general so attending.
N.Y. Executive Law 63 (McKinney 1993).
10. In light of the Attorney General's subsequent
clarification regarding the Special Prosecutor's scope of
authority, it is apparent that the Special Prosecutor would not
now be prohibited from further prosecuting these matters in any
event.
